2016 Delaware Code
Title 30 - State Taxes
CHAPTER 11. PERSONAL INCOME TAX
Subchapter VII Withholding of Tax
§ 1158. Payment of tax on behalf of nonresident shareholders by S corporation.

(a) Every corporation that is an S corporation for federal income tax purposes for any taxable year beginning on or after January 1, 1992, in which it has any shareholder who is a nonresident individual, shall pay, at the times and in the percentages set forth in § 1905 of this title, on behalf of each such nonresident, tax in an amount equal to the highest rate of tax set forth in § 1102(a) of this title multiplied by such nonresident's distributive share of the income of such corporation determined in accordance with § 1124 of this title.

(b) Any payment of tax under subsection (a) of this section by a corporation shall be considered to have been distributed or advanced by such corporation to the nonresident individual on whose behalf such tax was paid on the date such payment was made by such corporation. Such nonresident shall be credited for purposes of §§ 1169 and 1170 of this title with having made a declaration and payment of estimated tax on the date such payment under subsection (a) of this section was made by such corporation, but such deemed payment of estimated tax shall be taken into account for the taxable year of such nonresident in which such nonresident is required to include in taxable income the distributive share of the income of such corporation for which such payment under subsection (a) of this section was made.

(c) If an S corporation fails to pay any tax required to be paid by such corporation under subsection (a) of this section, such corporation shall be liable for any penalties, interest and additions to tax applicable to such failure in the same manner as if such tax were required to be paid by the corporation on its own behalf. Notwithstanding any other provision of this title, a nonresident individual who is a shareholder of an S corporation shall not be liable for any penalties, interest or additions to tax as a result of such nonresident's failure to make any payment of estimated tax otherwise required by § 1170 of this title with respect to such nonresident's distributive share of such corporation's income.

(d) Any payment of tax made by a corporation under § 1905 of this title with respect to any taxable year of such corporation ending on or before March 31, 1993, for which any payment is required to be made by such corporation under subsection (a) of this section shall be treated as a payment that was made under subsection (a) of this section for all purposes of this section, and no refund of any part of such payment shall be allowable solely on the basis that such payment was not required by § 1905 of this title.

68 Del. Laws, c. 423, § 5.;