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SN 2011(17)

2011 Legislative Changes to the Procedures Governing Nonresident Contractors

This publication has been superseded by SN 2012(2)

Purpose: This Special Notice explains the amendments made to Conn. Gen. Stat. §12-430(7) during the 2011 regular session of the Connecticut General Assembly, affecting the requirement for nonresident contractors to provide bonds.

 
Effective Date: Effective for contracts commencing on and after October 1, 2011.

Statutory Authority: Conn. Gen. Stat. §12-430(7) as amended by 2011 Conn. Pub. Acts 61, §66; Conn. Gen. Stat. §12-35; Conn. Gen. Stat. §12-415; Conn. Gen. Stat. §12-430(1).

Overview: The law requiring nonresident construction contractors to furnish security for Connecticut taxes arising from jobs performed in Connecticut has been changed in the following major ways:

  • Under the law as amended, there are two classes of nonresident contractors: verified and unverified. A nonresident prime or general contractor may gain verified status and thus eliminate the requirement to file a surety bond with the Department of Revenue Services (DRS), and a nonresident subcontractor may become verified and thus eliminate the requirement for the prime or general contractor to hold back a portion of the amount owed the subcontractor under the contract.
  • Under the law as amended, a single surety bond for 5% of the entire project price is required to be filed with DRS by an unverified prime or general contractor where the contract price for the entire project is $250,000 or more. A person doing business with an unverified prime or general contractor for such a project must obtain proof that such contractor has filed a bond with DRS, but is no longer required to withhold an amount from payment due such contractor under the contract.
  • A prime or general contractor must hold back 5% of the amount due an unverified subcontractor until the subcontractor obtains and furnishes AU-968, Certificate of Compliance, from DRS. An AU-968 authorizes the prime or general contractor to release all or a portion of the amounts held back from payment to the unverified subcontractor.

Prior law required compliance with one of three options to secure payment of Connecticut taxes for each contract with a nonresident prime or general contractor and with a nonresident subcontractor: (i) a nonresident contractor could furnish DRS a guarantee bond for 5% of the total contract price; or (ii) a nonresident contractor could furnish DRS a cash bond for 5% of the total contract price; or (iii) persons doing business with nonresident contractors would be required to withhold 5% of the total contract price and deposit it with DRS. This law meant that compliance with the law was required for each subcontract for a single project to real property in Connecticut.

As under prior law, owners or tenants of residential real property are excluded from the requirements of Conn. Gen. Stat. §12-430(7).

Definitions:

Nonresident contractor means a contractor or subcontractor who does not maintain a regular place of business in Connecticut.

Resident contractor means a contractor or subcontractor who maintains a regular place of business in Connecticut.

Regular place of business means:

  • Any bona fide office, factory, warehouse, or other space in Connecticut at which a contractor is doing business in its own name in a regular and systematic manner; and that is
  • A place continuously maintained, occupied, and used by the contractor in carrying on its business through its employees regularly in attendance to carry on the contractor's business in the contractor's own name.

A regular place of business does not include:

  • A place of business for a statutory agent for service of process or a temporary office whether or not it is located at the site of construction;
  • Locations used by the contractor only for the duration of the contract, such as short-term leased offices, warehouses, storage facilities, or facilities that do not have full time staff with regular business hours; or
  • An office maintained, occupied, and used by a person affiliated with a contractor.

Verified contractor means a nonresident contractor or subcontractor who:

  • Is registered for all applicable taxes with DRS;
  • Has filed all required tax returns with DRS;
  • Has no outstanding tax liabilities to DRS; and
  • Has submitted a Form AU-960, Nonresident Contractor Request for Verified Contractor Status, and has been verified by DRS to meet the above requirements, plus either:
  1. Has been registered for all applicable taxes with DRS for at least three years preceding the contract; or
  2. Posts with DRS a good and valid verification bond using Form AU-961, Verification Bond.

Unverified contractor means a nonresident contractor or subcontractor who is not a verified contractor.

Subcontractor means a person who is engaged in contracting real property work and who contracts with a prime or general contractor to perform all or any part of the contract of the prime or general contractor, or who contracts with a subcontractor who has contracted to perform any part of the contract entered into by the prime or general contractor.

Prime or general contractor includes (i) any person who contracts with the owner, lessee or other person having authority to enter into a contract involving the premises or property that is the subject matter of the contract, to perform services or furnish materials, or both, for the construction, alteration or improvement of any real property or project, or (ii) any person who owns or leases real estate for the purpose of developing the real estate other than for his or her own occupancy, and who, in the development of the real estate, contracts, alters or makes improvements on it.

Contract price means the total contract price, including deposits, amounts held as retainage, costs for any change orders, or charges for add-ons.

Person doing business with a nonresident contractor (referred to below as customer) means any person who makes payments of the contract price to a nonresident contractor, and includes, but is not limited to property owners, governmental, charitable or religious entities, and resident or nonresident general contractors or subcontractors. An owner or tenant of residential real property is not a person doing business with a nonresident contractor and is not required to comply with the provisions of Conn. Gen. Stat. §12-430(7).

Commencement of the contract means the time when the nonresident contractor signs the contract, but, in any event, occurs no later than when the work under the contract actually starts.  If a change order is made after the commencement of the original contract, the change order commences when it is signed by the nonresident contractor, but, in any event, occurs no later than when the work under the change order actually starts.

Residential real property means real property used exclusively for residential purposes and consisting of three or fewer dwelling units in one of which the owner or tenant resides.

Certificate of compliance means a certificate issued to an unverified subcontractor by DRS, exonerating the subcontractor from sales or use taxes owed by the subcontractor under Chapter 219 of the Connecticut General Statutes and any income tax withholding owed by the subcontractor pursuant to Chapter 229 of the Connecticut General Statutes, but only to the extent that these taxes arise from the activities of the subcontractor on the project for which the certificate was required.

Customer of an Unverified Prime or General Contractor: The customer of an unverified prime or general contractor must obtain proof that the contractor has posted a surety bond with DRS.  Failure to do so leaves the customer liable for payment of any sales and use taxes and any income tax withholding owed by the unverified contractor arising from the activities of the contractor on the project, up to 5% of the contract price required to be paid to the unverified contractor.

However, compliance with the provisions of Conn. Gen. Stat. §12-430(7) does not relieve the customer of the customer’s liability for use taxes due on purchases of services from the unverified contractor.

Unverified Prime or General Contractor Must File a Bond: An unverified prime or general contractor must file a surety bond with DRS in an amount equal to 5% of the contract price. DRS has issued Form AU-964, Surety Bond and Release, which must be used to post that bond.

DRS will release the surety bond once the unverified prime or general contractor establishes that it has paid all taxes it owes in connection with the contract and that its unverified subcontractors have paid all of the taxes that they owe in connection with the contract.

Otherwise, DRS will release the surety bond once the unverified prime or general contractor establishes that it has:

  1. Paid all taxes it owes in connection with the contract;
  2. Held back an amount equal to 5% of the payments being made by the contractor in connection with the contract to its unverified subcontractors; and
  3. Paid over amounts held back from unverified contractors to the extent that DRS has issued certificates of compliance for full or partial release of such amounts.

See the section of this publication titled Unverified Subcontractors Request a Certificate of Compliance for the Release of Amounts Held Back, for the procedures to release held back payments to the unverified subcontractors.

Hold Backs Required by All Prime or General Contractors from Payments to Unverified Subcontractors: Prime or general contractors, whether resident, verified, or unverified, doing business with unverified subcontractors on projects over $250,000 must hold back an amount equal to 5% of the payments required to be made to the subcontractor until the subcontractor provides a Certificate of Compliance authorizing full or partial release of the amount held back.

The prime or general contractor must provide notice of the requirement to hold back to the unverified subcontractor not later than the time of commencement of work under the contract by the subcontractor. 

The amount held back from unverified subcontractors is deemed to be held in a special fund in trust for the state. An unverified subcontractor does not have any right of action against a prime or general contractor with respect to any amount held back in compliance or intended compliance with Conn. Gen. Stat. §12-430(7).

Unverified Subcontractors Request a Certificate of Compliance for the Release of Amounts Held Back: When all work is completed under its contract, an unverified subcontractor requests DRS to issue Form AU-968, Certificate of Compliance, by submitting Form AU-967, Request for Certificate of Compliance.

DRS will review the request in the context of generally accepted construction industry cost guidelines for the scope and type of construction project. Not later than 120 days after the form and required documents were submitted, DRS will issue a Certificate of Compliance that authorizes full or partial release of amounts held back from payments under the contract, or will be deemed to have issued such a certificate.

If DRS issues a Certificate of Compliance that authorizes full release of held back amounts, the prime or general contractor shall pay over the full amount it has held back to the subcontractor.

If DRS issues a Certificate of Compliance that authorizes partial release of held back amounts, the prime or general contractor must pay over the released amount to the subcontractor and must pay the unreleased amount to DRS.  If the prime or general contractor fails to pay the unreleased amount to DRS on or before the thirtieth day after the date the Certificate of Compliance was mailed, a penalty equal to 10% of the amount will be imposed on the contractor.

When the prime or general contractor pays over to the subcontractor the amount authorized by a Certificate of Compliance, the contractor will not be liable for any claim by DRS for taxes of the subcontractor arising from the activities of the subcontractor on the project. Furthermore, when the prime or general contractor pays over to DRS the unreleased amount of the hold back, the contractor will not be liable for any claim by the subcontractor for the amount paid over to DRS.

Disclosures by DRS Authorized under Conn. Gen. Stat. §12-430(7): Notwithstanding the provisions regarding confidentiality of tax return information under Conn. Gen. Stat. §12-15, DRS is authorized to:

  • Verify whether or not a nonresident contractor or subcontractor is a verified contractor;
  • Disclose to a person doing business with an unverified subcontractor who is required to hold back amounts from payments to the unverified contractor whether a Certificate of Compliance has been requested by, or issued to, the subcontractor by DRS; DRS may disclose a copy of the certificate to the person doing business with the unverified subcontractor;
  • Disclose to a person doing business with an unverified prime or general contractor whether a good and valid surety bond has been posted with DRS; and
  • Verify whether or not any contractor or subcontractor is a resident contractor.

Effect on Other Documents: This Special Notice supersedes Special Notice 2005(12), Nonresident Contractor Bonds and Deposits, and modifies and supersedes Informational Publication 2006(35), Building Contractors’ Guide to Sales and Use Taxes, to the extent it discusses the provisions of Conn. Gen. Stat. §12-430(7).

Effect of This Document: A Special Notice announces a new policy or practice in response to changes in state or federal laws or regulations or to judicial decisions. A Special Notice indicates an informal interpretation of Connecticut tax law by DRS.

For Further Information: Call DRS during business hours, Monday through Friday:

  • 1-800-382-9463 (Connecticut calls outside the Greater Hartford calling area only); or
  • 860-297-5962 (from anywhere).

TTY, TDD, and Text Telephone users only may transmit inquiries anytime by calling 860-297-4911.

For questions regarding the nonresident contractor bond law, call 860-541-7538.

SN 2011(17)

Sales and use taxes

Withholding tax

Contractor bonds

Issued: 10/28/2011