2001 Montana Legislature

About Bill -- Links

SENATE BILL NO. 486

INTRODUCED BY B. DEPRATU, BERRY, BOHLINGER, EKEGREN, MAHLUM, MCNUTT, TAYLOR



A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING THAT A CAPITAL GAIN FROM A QUALIFYING EXCHANGE OF STOCK IN A CORPORATION DIRECTLY INTO THE CAPITAL OF A NEW OR EXPANDING BUSINESS OPERATING IN MONTANA IS NOT RECOGNIZED AS INCOME IN DETERMINING MONTANA INCOME TAXES; REQUIRING THAT IN ORDER TO QUALIFY A BUSINESS MUST OPERATE PRIMARILY IN MONTANA AND PROVIDE FIVE NEW JOBS PAYING A LIVABLE WAGE FOR AT LEAST 18 MONTHS; PROVIDING THAT THE OTHERWISE UNRECOGNIZED CAPITAL GAIN IS TAXABLE IF THE COMPANY BECOMES UNQUALIFIED WITHIN 18 MONTHS; PROVIDING FOR THE ADJUSTMENT OF THE TAXABLE BASIS OF THE INVESTMENT AFTER THE COMPANY HAS OPERATED AS A QUALIFIED BUSINESS FOR 5 YEARS; AMENDING SECTION 15-30-111, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND A RETROACTIVE APPLICABILITY DATE."



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:



     NEW SECTION.  Section 1.  Exchange of equity in new or expanding Montana corporation. (1) A capital gain from a qualifying exchange of stock in a corporation directly into the capital of a new or expanding business operating in Montana is not recognized as income for the purposes of this chapter.

     (2) To qualify for an unrecognized capital gain under this section, stock, including stock options, must be actively traded on an established market. Either the stock may be directly transferred to a qualified business or the stock may be sold and, within 180 days of the date of sale, the proceeds must be directly invested as capital in a qualified business. The stock that is transferred or sold may not be stock that was issued as the result of an exchange qualifying under this section unless it was issued as a result of an exchange that occurred more than 10 years prior to date of the intended exchange.

     (3) (a) A business qualifies for a capital exchange under this section if the business:

     (i) is a new business that operates primarily in the state or is an existing business that operates primarily in the state that intends to expand based upon the investment from the exchange of stock or stock options; and

     (ii) agrees to operate and, after commencement of business operations, does operate within the state with at least five full-time employees or, in the case of an expanding business, with an additional five full-time employees who are paid a livable wage for a period of not less than 18 months after exchange of stock or stock options are invested into the business.

     (b) For the purposes of this section:

     (i) a livable wage is an hourly wage determined by dividing 150% 175% of the federal poverty level for a family of two, published by the U.S. department of health and human services in the previous calendar year, by 2080; and

     (ii) a business is considered to operate primarily in the state if a majority 80% of the business's employees are located within the state.

     (c) A business qualifying under this section may be any type of business entity recognized under the laws of this state, including a corporation, small business corporation, limited liability company, or partnership.

     (4) If a business does not meet the employee or location qualification requirements of subsection (3)(a) within 18 months after the investment of the qualifying stock or stock options, the gain on the exchange of the stock or stock options is taxable. The difference between the basis of the stock or stock options and the fair market value or the sale price of the stock or stock options at the time of transfer is a taxable gain subject to taxation as if the sale was conducted without reference to this section at the time of the exchange or sale.

     (5) Stock qualifying under subsection (1) has as its taxable basis the same basis as the underlying stock sold without realization of a gain. Five years after the investment in the qualifying business, if the business continues to meet HAS MET the employee and location qualifications of subsection (3)(a) DURING THE ENTIRE 5 YEARS and the business has had at least $10,000 in sales or rental business-related income in at least 2 of the last 5 years, the taxable basis of the investment in the qualifying business is the fair market value of the stock or stock options at the time of transfer to the qualifying business or the sale price of the stock or stock options at the time of transfer to the capital of the qualifying business.



     Section 2.  Section 15-30-111, MCA, is amended to read:

     "15-30-111.  Adjusted gross income. (1) Adjusted gross income is the taxpayer's federal income tax adjusted gross income as defined in section 62 of the Internal Revenue Code of 1954, 26 U.S.C. 62, as that section may be labeled or amended, and in addition includes the following:

     (a)  (i) interest received on obligations of another state or territory or county, municipality, district, or other political subdivision of another state, except to the extent that the interest is exempt from taxation by Montana under federal law;

     (ii) exempt-interest dividends as defined in section 852(b)(5) of the Internal Revenue Code of 1986, 26 U.S.C. 852(b)(5), as that section may be amended or renumbered, that are attributable to the interest referred to in subsection (1)(a)(i);

     (b)  refunds received of federal income tax, to the extent that the deduction of the tax resulted in a reduction of Montana income tax liability;

     (c)  that portion of a shareholder's income under subchapter S. of Chapter 1 of the Internal Revenue Code of 1954 that has been reduced by any federal taxes paid by the subchapter S. corporation on the income;

     (d)  depreciation or amortization taken on a title plant as defined in 33-25-105(15);

     (e)  the recovery during the tax year of an amount deducted in any prior tax year to the extent that the amount recovered reduced the taxpayer's Montana income tax in the year deducted; and

     (f)  if the state taxable distribution of an estate or trust is greater than the federal taxable distribution of the same estate or trust, the difference between the state taxable distribution and the federal taxable distribution of the same estate or trust for the same tax period.

     (2)  Notwithstanding the provisions of the federal Internal Revenue Code of 1954, as labeled or amended, adjusted gross income does not include the following, which are exempt from taxation under this chapter:

     (a)  (i) all interest income from obligations of the United States government, the state of Montana, a county, municipality, or district, or other political subdivision of the state and any other interest income that is exempt from taxation by Montana under federal law;

     (ii) exempt-interest dividends as defined in section 852(b)(5) of the Internal Revenue Code of 1986, 26 U.S.C. 852(b)(5), as that section may be amended or renumbered, that are attributable to the interest referred to in subsection (2)(a)(i);

     (b)  interest income earned by a taxpayer who is 65 years of age or older in a tax year up to and including $800 for a taxpayer filing a separate return and $1,600 for each joint return;

     (c)  (i) except as provided in subsection (2)(c)(ii), the first $3,600 of all pension and annuity income received as defined in 15-30-101;

     (ii) for pension and annuity income described under subsection (2)(c)(i), as follows:

     (A)  each taxpayer filing singly, head of household, or married filing separately shall reduce the total amount of the exclusion provided in subsection (2)(c)(i) by $2 for every $1 of federal adjusted gross income in excess of $30,000 as shown on the taxpayer's return;

     (B)  in the case of married taxpayers filing jointly, if both taxpayers are receiving pension or annuity income or if only one taxpayer is receiving pension or annuity income, the exclusion claimed as provided in subsection (2)(c)(i) must be reduced by $2 for every $1 of federal adjusted gross income in excess of $30,000 as shown on their joint return;

     (d)  all Montana income tax refunds or tax refund credits;

     (e)  gain required to be recognized by a liquidating corporation under 15-31-113(1)(a)(ii);

     (f)  all tips or gratuities that are covered by section 3402(k) or service charges that are covered by section 3401 of the Internal Revenue Code of 1954, 26 U.S.C. 3402(k) or 3401, as amended and applicable on January 1, 1983, received by persons for services rendered by them to patrons of premises licensed to provide food, beverage, or lodging;

     (g)  all benefits received under the workers' compensation laws;

     (h)  all health insurance premiums paid by an employer for an employee if attributed as income to the employee under federal law;

     (i)  all money received because of a settlement agreement or judgment in a lawsuit brought against a manufacturer or distributor of "agent orange" for damages resulting from exposure to "agent orange";

     (j)  principal and income in a medical care savings account established in accordance with 15-61-201 or withdrawn from an account for eligible medical expenses, as defined in 15-61-102, of the taxpayer or a dependent of the taxpayer or for the long-term care of the taxpayer or a dependent of the taxpayer;

     (k)  principal and income in a first-time home buyer savings account established in accordance with 15-63-201 or withdrawn from an account for eligible costs, as provided in 15-63-202(7), for the first-time purchase of a single-family residence;

     (l)  money, not exceeding $3,000 for each taxpayer, contributed to a family education savings program account established in accordance with 15-62-201;

     (m)  principal withdrawn from an account for qualified higher education expenses, as defined in 15-62-103, for a designated beneficiary of the taxpayer;

     (n)  the recovery during the tax year of any amount deducted in any prior tax year to the extent that the recovered amount did not reduce the taxpayer's Montana income tax in the year deducted;

     (o)  if the federal taxable distribution of an estate or trust is greater than the state taxable distribution of the same estate or trust, the difference between the federal taxable distribution and the state taxable distribution of the same estate or trust for the same tax period; and

     (p)  income of a dependent child that is included in the taxpayer's federal adjusted gross income pursuant to the Internal Revenue Code. The child is required to file a Montana personal income tax return if the child and taxpayer meet the filing requirements in 15-30-142.

     (q) the amount of gain not recognized in the transfer of qualifying stock into a new or expanding business and the amount of gain disregarded due to an adjustment in the taxable basis of an investment in a new or expanding business as provided in [section 1].

     (3)  A shareholder of a DISC that is exempt from the corporation license tax under 15-31-102(1)(l) shall include in the shareholder's adjusted gross income the earnings and profits of the DISC in the same manner as provided by section 995 of the Internal Revenue Code, 26 U.S.C. 995, for all periods for which the DISC election is effective.

     (4)  A taxpayer who, in determining federal adjusted gross income, has reduced the taxpayer's business deductions by an amount for wages and salaries for which a federal tax credit was elected under sections 38 and 51(a) of the Internal Revenue Code of 1954, as those sections may be labeled or amended, is allowed to deduct the amount of the wages and salaries paid regardless of the credit taken. The deduction must be made in the year that the wages and salaries were used to compute the credit. In the case of a partnership or small business corporation, the deduction must be made to determine the amount of income or loss of the partnership or small business corporation.

     (5)  Married taxpayers filing a joint federal return who are required to include part of their social security benefits or part of their tier 1 railroad retirement benefits in federal adjusted gross income may split the federal base used in calculation of federal taxable social security benefits or federal taxable tier 1 railroad retirement benefits when they file separate Montana income tax returns. The federal base must be split equally on the Montana return.

     (6)  A taxpayer receiving retirement disability benefits who has not attained age 65 by the end of the tax year and who has retired as permanently and totally disabled may exclude from adjusted gross income up to $100 a week received as wages or payments in lieu of wages for a period during which the employee is absent from work due to the disability. If the adjusted gross income before this exclusion and before application of the two-earner married couple deduction exceeds $15,000, the excess reduces the exclusion by an equal amount. This limitation affects the amount of exclusion, but not the taxpayer's eligibility for the exclusion. If eligible, married individuals shall apply the exclusion separately, but the limitation for income exceeding $15,000 is determined with respect to the spouses on their combined adjusted gross income. For the purpose of this subsection, "permanently and totally disabled" means unable to engage in any substantial gainful activity by reason of any medically determined physical or mental impairment lasting or expected to last at least 12 months.

     (7)  Married taxpayers who file a joint federal return and who make an election on the federal return to defer income ratably for 4 tax years because of a conversion from an IRA other than a Roth IRA to a Roth IRA, pursuant to section 408A(d)(3) of the Internal Revenue Code, 26 U.S.C. 408A(d)(3), may file separate Montana income tax returns to defer the full taxable conversion amount from Montana adjusted gross income for the same time period. The deferred amount must be attributed to the taxpayer making the conversion. (Subsection (2)(f) terminates on occurrence of contingency--sec. 3, Ch. 634, L. 1983.)"



     NEW SECTION.  Section 3.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 15, chapter 30, and the provisions of Title 15, chapter 30, apply to [section 1].



     NEW SECTION.  Section 4.  Effective date. [This act] is effective on passage and approval.



     NEW SECTION.  Section 4.  Retroactive applicability APPLICABILITY. [This act] applies retroactively, within the meaning of 1-2-109, to tax years beginning after December 31, 2000 2001.

- END -




Latest Version of SB 486 (SB0486.03)
Processed for the Web on March 13, 2001 (4:17PM)

New language in a bill appears underlined, deleted material appears stricken.

Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted. See the status of this bill for the bill's primary sponsor.

Status of this Bill | 2001 Legislature | Leg. Branch Home
All versions of this bill (PDF Format)
Authorized print version w/line numbers (PDF format)

Prepared by Montana Legislative Services

(406)444-3064