S*1183 Session 107 (1987-1988)
S*1183(Rat #0514, Act #0463 of 1988) General Bill, By J.M. Waddell
A Bill to amend Sections 12-16-20, 12-16-290, 12-16-510, 12-16-730, 12-16-910,
12-16-1110, 12-16-1130, 12-16-1160, 12-16-1200, 12-16-1210, 12-16-1350,
12-16-1510, 12-16-1520, and Articles 17 and 19, Chapter 16 of Title 12, Code
of Laws of South Carolina, 1976, relating to the South Carolina Estate Tax
Act, so as to conform its provisions to the Internal Revenue Code of 1986, as
amended through December 31, 1987, and to make technical corrections, and to
amend Section 12-49-70, as amended, relating to the conclusive presumption of
payment of taxes, so as to correct a reference.
02/10/88 Senate Introduced and read first time SJ-7
02/10/88 Senate Referred to Committee on Finance SJ-7
03/02/88 Senate Committee report: Favorable Finance SJ-20
03/03/88 Senate Read second time SJ-74
03/03/88 Senate Ordered to third reading with notice of
amendments SJ-74
03/08/88 Senate Read third time and sent to House SJ-42
03/09/88 House Introduced and read first time HJ-1836
03/09/88 House Referred to Committee on Ways and Means HJ-1836
04/07/88 House Committee report: Favorable Ways and Means HJ-2551
04/14/88 House Read second time HJ-2960
04/14/88 House Unanimous consent for third reading on next
legislative day HJ-2963
04/15/88 House Read third time and enrolled HJ-3009
04/19/88 Ratified R 514
04/22/88 Signed By Governor
04/22/88 Effective date 04/22/88
04/22/88 Act No. 463
04/22/88 See act for exception to or explanation of
effective date
05/03/88 Copies available
(A463, R514, S1183)
AN ACT TO AMEND SECTIONS 12-16-20, 12-16-290, 12-16-510, 12-16-730, 12-16-910,
12-16-1110, 12-16-1130, 12-16-1160, 12-16-1200, 12-16-1210, 12-16-1350,
12-16-1510, 12-16-1520, AND ARTICLES 17 AND 19, CHAPTER 16 OF TITLE 12, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA ESTATE TAX ACT, SO
AS TO CONFORM ITS PROVISIONS TO THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
THROUGH DECEMBER 31, 1987, AND TO MAKE TECHNICAL CORRECTIONS, AND TO AMEND
SECTION 12-49-70, AS AMENDED, RELATING TO THE CONCLUSIVE PRESUMPTION OF PAYMENT
OF TAXES, SO AS TO CORRECT A REFERENCE.
Be it enacted by the General Assembly of the State of South Carolina:
Definitions
SECTION 1. (A) Section 12-16-20(5) of the 1976 Code is amended to read:
"(5) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as
amended through December 31, 1987."
(B) Section 12-16-20 of the 1976 Code is amended by adding:
"(17) ' Executor' means personal representative as defined in item (9) of
this section.
(18) 'Deficiency' means the amount by which the tax imposed by this chapter
exceeds:
(1) the sum of:
(a) the amount shown as the tax by the taxpayer upon his return, if a return
was made by the taxpayer and an amount was shown as the tax by the taxpayer
thereon, plus
(b) the amounts previously assessed (or collected without assessment) as a
deficiency, over
(2) the amount of any credits allowable with respect thereto."
Penalties and interest
SECTION 2. Section 12- 16-290 of the 1976 Code is amended to read:
"Section 12-16-290. In any case where it is determined by the board that
the decedent died domiciled in this State, interest or penalties, if otherwise
imposed by law, for nonpayment of death taxes may not be imposed between the date
of the agreement and of filing of the determination of the board as to
domicile."
Estates of residents
SECTION 3. Section 12 - 16 -510 ( B ) of the 1976 Code is amended to read:
"(B) If any real and tangible personal property of a resident is located
outside of this State and is subject to a death tax imposed by another state for
which the federal credit is allowed, the amount of the tax due under this section
must be credited with the lesser of:
(1) the amount of the death tax paid the other state and credited against the
federal estate tax; or
(2) an amount computed by multiplying the federal credit by a fraction, the
numerator of which is the value of that part of the gross estate over which
another state or states have jurisdiction to the same extent to which this State
would exert jurisdiction under this chapter with respect to the residents of the
other state or states and the denominator of which is the value of the decedent's
gross estate."
Tax due
SECTION 4. Section 12-16-730(B) of the 1976 Code is amended to read:
"(B) The tax imposed by this section is due upon a taxable distribution
or taxable termination as determined under applicable provisions of the federal
generation-skipping transfer tax. The person liable for payment of the federal
generation-skipping transfer tax is liable for the tax imposed by this article.
The tax must be paid to the commission on or before the last day allowed for
filing a return hereunder. Interest computed as provided in Section 12-54-20
accrues on the amount of unpaid tax from the day after the last day for filing
a return until the date of payment."
Farm or business property
SECTION 5. Section 12-16-910 of the 1976 Code is amended to read:
"Section 12-16-910. (A) When the gross estate of a decedent at the date
of death is a value requiring filing a federal estate tax return and the estate
contains certain farm or business real property which qualified for valuation
under Internal Revenue Code Section 2032A for the tax imposed under this chapter,
a copy of the election made at the time of filing the federal estate tax return,
if made, must be attached to the South Carolina estate tax return when filed. The
return shall also include an agreement signed by each person in being having an
interest, whether or not in possession, in the property and consent to the
application of Internal Revenue Code Section 2032A.
(B) If, within ten years after the decedent's death and before the death of the
qualified heir, as defined in Internal Revenue Code Section 2032A(e)(1), a
qualified heir disposes of any interest in the property, other than to a member
of his family, as defined in subsection (e)(2) of the section, or ceases to use
the property for qualified uses as defined in subsection (b)(2) of the section,
there is imposed an additional South Carolina estate tax, computed as provided
in Internal Revenue Code Section 2032A(c) and the applicable regulations."
Due date
SECTION 6. Section 12-16-1110(A) of the 1976 Code is amended to read:
"(A) The tax imposed under this chapter is due and payable no later than
nine months from the date of the decedent' 9 death."
Notice and demand
SECTION 7. Section 12-16-1130 of the 1976 Code is amended to read:
"Section 12-16-1130. Upon receipt of notice and demand from the commission
as provided in Section 12-16-1340(E) there must be paid at the time and place
stated in the notice the amount of any tax, including any interest and assessable
penalties stated in the notice and demand."
Payment by nonresident estate
SECTION 8. Section 12-16-1160 of the 1976 Code is amended to read:
"Section 12-16-1160. A resident personal representative holding personal
property of a deceased nonresident subject to the tax shall deduct the tax or
collect it from the personal representative in the state of the decedent's
domicile and shall not deliver the property to him or any other person until he
has collected the tax and paid the same to the commission. When the transfer of
the personal property is subJect to a tax under the provisions of this chapter
and the personal representative in the state of domicile neglects or refuses to
pay the tax upon demand or if for any reason the tax is not paid within nine
months after the decedent's death, the resident personal representative may
petition the probate court where the resident personal representative qualified
for authority to sell the property or, if the same can be divided, the portion
as may be necessary. He shall then deduct the tax from the proceeds of the sale
and account for the balance, if any, in lieu of the property."
Summons
SECTION 9. Section 12-16-1200 of the 1976 Code is amended to read:
"Section 12-16-1200. In case of the refusal or neglect of any person
summoned under the provisions of this chapter by the commission to appear before
it and produce books, papers, or securities, the commission may apply to any
justice of the Supreme Court or circuit judge for a mandamus to compel obedience
to the summons and the hearing thereon may be had in Richland County or any other
convenient county."
Tax on transfer
SECTION 10. Section 12-16-1210 of the 1976 Code is amended to read:
"Section 12-16-1210. If a foreign executor, administrator, or trustee
assigns or transfers any stock or obligations in this State standing in the name
of a decedent or in trust for a decedent, liable for tax under this chapter, the
tax must be paid to the commission on transfer."
Collection
SECTION 11. Section 12-16-1350 of the 1976 Code is amended to read:
"Section 12-16-1350. Except as provided in Article 9 of this chapter,
where the assessment of the tax imposed by this chapter has been made within the
period of limitation properly applicable thereto, the tax may be collected by
levy or by a proceeding in court, but only if the levy is made or the proceeding
begun within six years after the assessment of the tax."
Liens
SECTION 12. Section 12 - 16 - 1510 of the 1976 Code is amended to read:
"Section 12-16-1510. (A) A lien arises automatically from the death of the
decedent upon all property, real or personal, located in this State of every
decedent having a taxable estate who fails to pay the tax imposed by this
chapter. Except as provided in Sections 12-16-910 and 12- 16-920 the lien once
it attaches is enforceable for a period not to exceed ten years from the date of
death of the decedent.
(B) That part of the property of a decedent subject to the lien provided under
subsection (A) is divested of the lien to the extent it is used for payment of
charges against the estate or expenses of its administration allowed by the court
having jurisdiction thereof.
(C) That part of the personal property of a decedent subJect to the lien
provided under subsection (A) is divested of the lien upon the conveyance or
transfer Or the property to a purchaser or holder of a security interest for an
adequate and full consideration and the lien shall then attach to the proceeds
received for the property from the purchaser or holder of a security interest.
Real property is not divested of the lien except as provided in subsections (B)
and (D) of this section. (D) When any lien under this section has attached and
the commission is satisfied that the tax liability, if any, of the estate has
been fully discharged, the commission shall issue a certificate releasing all
property of the estate from the lien; or, if the commission is satisfied that the
tax liability of the estate has been provided for, it shall issue a certificate
releasing any surplus property of the estate from the lien."
Transfer of assets
SECTION 13. Section 12-16-1520 of the 1976 Code is amended to read:
"Section 12-16-1520. Ten days' notice must be served upon the commission
prior to the transfer or delivery by any financial institution, corporation,
person, or other institution of securities, deposits, or other assets, including
shares of capital stock or other interest in the above institutions or
corporations, which belong to or stand in the name of any other persons to the
executors, administrators, or legal representatives of the decedent or to his
survivors when held in the joint name of the decedent and one or more other
persons upon their order or request. However, the ten-day notice period may be
waived upon written consent of the commission. Prior to the expiration of the
ten-day period, the commission may require the portion of the property to be
transferred for purposes of paying any taxes and interest subsequently due upon
the property as imposed by this chapter.
Notwithstanding the provisions of this section:
(1) Any portion of a checking or savings account may be transferred upon
notification to the commission of the intent to transfer without its written
consent and without regard to the ten-day notice period. Any amount so withdrawn
must be included in the gross estate of the decedent if otherwise includable
therein as provided by law.
(2) This notice is also not required for the transfer of stocks, bonds, notes,
mortgages, dividends, interest, wages, or salaries of a nonresident decedent
unless the transferee has actual knowledge that a decedent was a resident of this
State or that the assets have an actual business situs in this State. The
exemption from notice for nonresidents does not apply to bank accounts, bank
boxes, certificates of deposit, safe-deposit boxes, insurance proceeds, or real
estate."
Enforcement and liabilities
SECTION 14. Article 17, Chapter 16 of Title 12 of the 1976 Code is amended to
read:
"Article 17
Enforcement and Liabilities
Section 12-16-1710. The probate court may authorize executors, administrators,
personal representatives, and trustees to sell the real estate of a decedent for
the payment of the tax in the same manner in which it may authorize them to sell
real estate for the payment of debts.
Section 12-16-1720. The commission may appear in any proceeding in any court in
which the decree may in any way affect the tax and no decree in any such
proceeding or appeal therefrom shall be binding upon the State unless personal
notice of such proceeding shall have been given to the commission.
Section 12-16-1730. Whenever the commission in any action instituted by it
recovers taxes under the provisions of this chapter, the amount of the Judgment
so recovered must be paid to the commission and the commission shall turn over
to the State Treasurer all of the taxes after paying the costs, disbursements,
and expenses of the suit. The commission shall issue executions for any taxes
which remain unpaid for a period of ninety days."
Payment presumed
SECTION 15. Section 12-49-70 of the 1976 Code, as amended by Act 70 of 1987, is
further amended to read:
"Section 12-49-70. Except as provided in Article 9 of Chapter 16 of this
title, all taxes levied or becoming due under the laws of this State are
conclusively presumed paid after ten years from the last date taxes could have
been paid without penalty. This section does not apply to taxes for the
collection of which the State institutes judicial proceedings within the time
limit above.
Except as to the conclusive presumption after ten years of payment of taxes by
taxpayers as provided in this section, this section does not affect or impair the
operation of Sections 12-45-380, 12-55-20, and 12-59-330."
Miscellaneous provisions
SECTION 16. Article 19, Chapter 16 of Title 12 of the 1976 Code is amended to
read:
"Article 19
Miscellaneous Provisions
Section 12-16-1910. For purposes of this chapter, if a person as defined in
Section 62-2-801 makes a disclaimer as provided in Internal Revenue Code Section
2518 with respect to any interest in property, this chapter applies as if the
interest had never been transferred to the person.
Section 12-16-1920. The commission may prescribe forms, make rules, and
promulgate regulations as necessary to implement and administer this chapter.
Section 12-16-1930. Except in accordance with a proper Judicial order or as
otherwise provided by law, it is unlawful for the members of the commission, any
deputy, agent, clerk, or other officer or employee, or former employees or
officers to divulge or make known in any manner the report or return or any
particulars set forth or disclosed in any report or return, as completed in
connection with the administration and enforcement of this chapter. The
provisions of this section apply to all reports and returns filed before or after
enactment of this section. Nothing in this section prohibits the publication of
statistics, so classified as to prevent the identification of particular reports
or returns and the items thereof, or the inspection by the Attorney General or
other legal representative of the State, of the report or return upon an
application for review of any adjustment proposed by the commission or upon the
filing of a petition for redetermination of a deficiency assessed by the
commission, or against whom an action or proceeding has been instituted to
recover any tax or penalty imposed by this chapter. Nothing herein precludes the
disclosure of deficiency assessments to the probate courts and the filing of
warrants for uncollected taxes.
Any person who violates the provisions of this section is guilty of a
misdemeanor and, upon conviction, must be imprisoned for not more than one year
or fined not more than one thousand dollars, or both. If the offender is an
employee or officer of this State, he is dismissed from office and may not hold
any public office in this State for five years thereafter.
Section 12-16-1940. Notwithstanding the provisions of Section 12-16-1930, the
commission may permit the commissioner of Internal Revenue of the United States,
the proper officer of any state imposing taxes similar to those imposed by this
chapter, or the authorized representative of either such officer to inspect tax
returns of any taxpayer or may furnish to the officer or his authorized
representative an abstract of the tax return of any taxpayer or supply him with
information concerning any item contained in any tax return or disclosed by the
report of any investigation of the tax return of any taxpayer. Permission is
granted or the information furnished to the officer or his representative only
if the statutes of the United States or of the other state grant substantially
similar privileges to the proper officer of this State charged with the
administration of this chapter.
Section 12-16-1950. The commission shall prescribe all forms, books, and blanks
for the use of the probate judges necessary for the administration of this
chapter, which must be provided at the expense of the several counties, and the
commission shall mail notice to the probate judge of each form, book, or blank
required to be used thirty days before the use thereof is required.
Section 12-16-1960. No final account of a personal representative in any probate
proceeding who is required to file a federal estate tax return may be allowed and
approved by the court before whom the proceeding is pending unless the court
finds that the tax imposed on the property by this chapter, including applicable
interest, has been paid in full or that no such tax is due."
Time effective
SECTION 17. This act takes effect upon approval by the Governor but the
amendments in Chapter 16 of Title 12 of the 1976 Code contained in this act do
not change the effective date of Chapter 16 of Title 12 as provided in Section
10 of Act 70 of 1987.
08012
1988
0464
0515
S0532
AN ACT TO AMEND SECTION 59-113-10, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE HIGHER EDUCATION TUITION GRANT COMMITTEE, SO AS TO, AMONG OTHER
THINGS, CHANCE THE NAME OF THE HIGHER EDUCATION TUITION GRANT COMMITTEE TO HIGHER
EDUCATION TUITION GRANT COMMISSION, PROVIDE FOR AN ADDITIONAL EX OFFICIO MEMBER
WHO IS THE CHIEF EXECUTIVE OFFICER OF THE STATE COMMISSION ON HIGHER EDUCATION
OR HIS DESIGNEE, DELETE CERTAIN LANGUAGE AND PROVISIONS, AND PROVIDE THAT THE
HIGHER EDUCATION TUITION GRANT COMMISSION IS RESPONSIBLE SOLELY TO THE GENERAL
ASSEMBLY AND SHALL REPORT TO THE GENERAL ASSEMBLY AT LEAST ANNUALLY; TO AMEND
SECTION 59-113-30, RELATING TO THE STUDENTS COVERED BY CHAPTER 113 OF TITLE 59
(TUITION GRANTS), THE AMOUNT OF GRANTS, AND ADJUSTMENT FOR SCHOLARSHIPS, SO AS
TO DELETE CERTAIN LANGUAGE AND PROVIDE THAT THE MAXIMUM AMOUNT MAY NOT EXCEED THE
AVERAGE STATE APPROPRIATION FOR EACH FULL-TIME STUDENT ENROLLED IN THE
STATE-SUPPORTED INSTITUTIONS OF HIGHER LEARNING WITH FOUR-YEAR UNDERGRADUATE
DEGREE PROGRAMS IN THE PREVIOUS YEAR, RATHER THAN PROVIDING THAT THE MAXIMUM
AMOUNT NOT EXCEED THE AVERAGE STATE APPROPRIATION PER FULL-TIME STUDENT ENROLLED
IN ALL STATE-SUPPORTED INSTITUTIONS OF HIGHER LEARNING; AND TO AMEND SECTION
59-113-50, RELATING TO THE DEFINITION OF "INDEPENDENT INSTITUTION OF HIGHER
LEARNING" FOR THE PURPOSES OF CHAPTER 113 OF TITLE 59, SO AS TO CHANGE THE
MEANING OF THAT TERM.
Be it enacted by the General Assembly of the State of South Carolina:
Name changed; member added; report
SECTION 1. Section 59-113-10 of the 1976 Code is amended to read:
"Section 59-113-10. There is created a Higher Education Tuition Grant
Commission consisting of eight representatives of the independent institutions
of higher learning in the State who choose to come under the provisions of this
chapter. In addition, the membership of the Commission includes one ex officio
member to be named by the House Committee on Education and Public Works, one ex
officio member to be named by the Senate Committee on Education, and one ex
officio member who is the chief executive officer of the State Commission on
Higher Education or his designee. The terms of the representatives of the
institutions are for three years and until their successors are selected and
qualify. The membership of the Commission must be rotated among the participating
institutions. The Commission shall administer the provisions of this chapter and
shall make those regulations as may be necessary in order to carry out the intent
of this chapter. The Commission is responsible solely to the General Assembly and
shall report to that body at least annually."
Limited to certain state-supported institutions of higher learning
SECTION 2. Section 59-113-30 of the 1976 Code is amended to read:
"Section 59-113-30. (A) The provisions of this chapter apply to students
entering college as freshmen during the 1970-71 academic year.
(B) The amount of the grant to be paid for each semester, or appropriate
academic term, must be determined by the Higher Education Tuition Grant
Commission and the Commission shall award the maximum amount permissible under
its regulations or the determined need of the student, whichever is less.
(C) The maximum amount may not exceed the average state appropriation for each
full-time student enrolled in the state-supported institutions of higher learning
with four-year undergraduate degree programs in the previous year. The tuition
grants must be calculated annually by the Commission.
(D) The need of each applicant must be determined by acceptable need analysis
such as the parents' confidential statement and such other analyses as the
Commission may determine.
(E) An adjustment must be made in the tuition grant of any student awarded a
scholarship from any other source if the combination of grants and awards exceeds
the calculated need of the student. If the scholarship is for only a portion of
tuition and fees, the student may qualify for a proportionate tuition grant in
accordance with the provisions of this chapter."
Definition changed
SECTION 3. Section 59-113-50 of the 1976 Code is amended to read:
"Section 59-113-50. For the purposes of this chapter, an independent
institution of higher learning means any independent eleemosynary Junior or
senior college in South Carolina whose major campus and headquarters are located
within South Carolina and which is accredited by the Southern Association of
Colleges and Secondary Schools."
Time effective
SECTION 4. This act takes effect upon approval by the Governor. |