Form N-109 - Application For Tentative Refund From Carryback Of Net Operating Loss Page 3
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4FORM N-109
(REV. 2011)
STATE OF HAWAII — DEPARTMENT OF TAXATION
GENERAL INSTRUCTIONS FOR APPLICATIONS FOR TENTATIVE
REFUND FROM CARRYBACK OF NET OPERATING LOSS (NOL)
FOR USE BY INDIVIDUALS, ESTATES, OR TRUSTS
(Section references are to the Internal Revenue Code unless otherwise specified)
Note: Hawaii has not adopted the federal net operating loss carryback
Note: As provided by statute, adjustment to refundable tax credits, except
provision of the American Recovery and Reinvestment Act of 2009, and the
the credit for child and dependent care expenses, must be claimed on
Worker, Homeownership, and Business Assistance Act of 2009.
or before the end of the year following the year for which the credits are
A. WHO MAY FILE AN APPLICATION.—An application for a tentative
claimed.
carryback adjustment may be filed on this form by any individual, estate,
D. ALLOWANCE OF ADJUSTMENT.—The Director of Taxation will act
trust, or fiduciary who desires a quick refund of taxes which are affected by
on this application within a period of 90 days from whichever of the following
the carryback of a NOL.
two dates is the later:
Note: If you are a nonresident or part-year resident (Form N-15 filer),
1. The date on which this application is filed; or
you cannot file Form N-109. However, you may use Schedule A (Form
2. The last day of the month in which falls the last date prescribed by law
N-109) to figure your NOL that is available for carryback or carryforward.
(including any extension of time granted) for filing the return for the taxable
You must file an amended return on Form N-15 to carry back your NOL. See
year of the NOL from which the carryback results.
Item G, Amended Return, for information on filing an amended return.
E. DISALLOWANCE OF APPLICATION.—Any application which con-
A taxpayer has an option on whether or not to carry a loss back first be-
tains material omissions or computation errors which the Director of Taxa-
fore carrying it forward. This form should only be used by those taxpayers
tion deems cannot be corrected within the 90-day period may be disallowed.
choosing to carry their losses back.
This application for a tentative carryback adjustment does not constitute a
You may elect to carry forward a NOL instead of first carrying it back by
claim for credit or refund. If this application is disallowed in whole or in part,
attaching a statement to this effect on a timely filed return (including any
no suit based thereon may be maintained in any court for the recovery of the
extensions) for the year of the loss. Once you make such an election, it is
tax. The taxpayer may, however, file a regular claim for credit or refund on
irrevocable for that year. The carryforward is limited to 20 years, whether or
an amended return at any time before the expiration of the applicable period
not a carryback is used first.
of limitation, as further explained in instruction G.
However, no part of any NOL incurred outside of the State prior to begin-
F. ASSESSMENT OF ERRONEOUS ALLOWANCES.—Any amount
ning business in the State may be included in such election.
applied, credited, or refunded on the basis of this application which is later
Change in Filing Status. Special rules apply if you filed a joint return (or
determined by the Director of Taxation to be excessive may be assessed
a separate return) for some but not all of the tax years involved in figuring an
as a deficiency as if it were due to a mathematical error appearing on the
NOL carryback. For details, see federal Publication 536. Attach a computa-
return.
tion showing how you figured the carryback.
G. AMENDED RETURN.—An individual, estate, trust, or fiduciary may
B. TIME AND PLACE FOR FILING.—This form must be filed with the
obtain a refund by filing an amended return. A separate amended return
Department of Taxation at P.O. Box 3559, Honolulu, Hawaii 96811-3559,
must be filed for each year that a refund is requested. Generally, the amend-
and must be filed on or after the date of filing of the return for the taxable
ed return must be filed within 3 years after the due date of the return for the
year of the NOL and within 12 months from the end of such taxable year. Do
tax year of the NOL.
not attach this form to your income tax return.
If you are an individual, fill in the amended return oval and the NOL Car-
NOTE: If you fail to meet the foregoing limitation, you may file an amended
ryback oval at the top of Form N-11 or Form N-15. Complete your amended
return within three years of the due date prescribed for filing the return,
return with all of the correct information. Attach Schedule AMD, Explanation
including extensions, for the NOL year or the period agreed to under a
of Changes on Amended Return, to the income tax return. Also attach a
written extension of time, whichever is later.
copy of your original federal income tax return for the loss year.
C. RECOMPUTATION OF TAX LIABILITY.—In determining the de-
H. YEARS TO WHICH YOU MAY CARRY A NOL.—Generally, you must
crease attributable to the NOL carryback in the tax previously determined,
first carry a NOL back to the second tax year before the loss. The portion
such tax is to be recomputed. The use of Form N-11 or N-40 and instruc-
of a NOL for a tax year that’s an “eligible loss” may be carried back to the 3
tions, for the applicable taxable year, will be helpful in making this recom-
preceding tax years. In the case of an individual, eligible losses are property
putation.
losses arising from fire, storm, shipwreck, or other casualty, or from theft. In
the case of a taxpayer that’s a small business (a sole proprietorship whose
The amount of the adjustment is limited to the decrease in such tax as
average annual gross receipts are $5 million or less for the tax year in which
previously determined which results from the NOL carryback and the effect
the loss arose), or engaged in the trade or business of farming, eligible
of such carryback upon any item taken into account in computing the tax
losses are NOLs attributable to Presidentially declared disasters. Farming
previously determined. Such decrease must be computed on the basis
losses may be carried back to the 5 preceding tax years.
of the items reflected in the computation of the tax as previously deter-
mined. Accordingly, items must be taken into account only to the extent that
Any amount of the loss not used to offset taxable income (adjusted, as
they were reported in the return, or were reflected in amounts assessed (or
explained in instruction K) for the second preceding year is carried to the
collected without assessment) as deficiencies, or in amounts which were
first preceding year. Where the loss is not entirely used to offset taxable
abated, credited, refunded, or otherwise repaid prior to the date of filing this
income (adjusted) in the 2 preceding years, the balance may be carried
application.
forward to the 20 succeeding years (after NOL year) in the order of their
occurrence. The balance of the loss (if any) which is not applied in the 2
Deductions (except the charitable contributions deduction) which are
carryback and 20 carryover years, cannot be carried to any later tax years.
limited, for example, by taxable income or adjusted gross income, are to be
recomputed on the basis of the taxable income or adjusted gross income as
For election with respect to the part of a NOL from a foreign expropria-
affected by the carryback.
tion loss, product liability loss, and other exceptions to the general rule, see
section 172(b) and the federal regulations.
In general, the tax previously determined will be the tax shown on the
I. NOL DEDUCTION.—The sum of your NOL carrybacks and carry-
return as filed, increased by any amounts assessed (or collected without
assessment) as deficiencies prior to the date of filing this application and
overs is your NOL deduction for the tax year to which carried. Before you
decreased by any amounts abated, credited, refunded, or otherwise repaid
can figure your NOL deduction for the year, you must first determine what
prior to such date.
part of any NOLs for any earlier or later tax years represents carryovers or
carrybacks to the tax year under consideration. When you have more than
If any amount of the tax with respect to which a decrease is determined
one NOL to be carried to the same tax year, apply the loss from the earliest
in connection with this application is unpaid (including any installment not
year first.
yet due) at the date of filing the application, enter the unpaid amount of such
tax in the appropriate column.
Page 3
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