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Committee Substitute House Bill 3099 History

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COM SUB 2 LINES

COMMITTEE SUBSTITUTE

FOR

H. B. 3099

(By Delegates Varner, Kominar, White, Pethtel,

 Ferro, Ennis, Ferns, Skaff, Storch, Givens and Nelson)

 

(Originating in the Committee on Finance)

[February 23, 2011]

 

A BILL to amend and reenact §11-6F-2 and §11-6F-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §11-13Q-20 of said code; to amend and reenact §11-13R-3 of said code; to amend and reenact §11-13S-3 of said code; to amend and reenact §11-15-8d of said code; and to amend and reenact §24-2F-3 of said code, all relating generally to the tax treatment of manufacturing entities generally; amending definition of manufacturing for purposes of special method for appraising qualified capital additions to manufacturing facilities for property tax purposes; providing new rules for treatment of certified capital addition property; amending definition of research and development purposes of strategic research and development tax credit; amending definition of manufacturing for purposes of manufacturing investment tax credit; providing additional exception to limitation on right to assert sales and use tax exemptions; modifying meaning of natural gas for purposes of alternative and renewable energy portfolio standard act; and requiring report on impact of act.

Be it enacted by the Legislature of West Virginia:

    That §11-6F-2 and §11-6F-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §11-13Q-20 of said code be amended and reenacted; that §11-13R-3 of said code be amended and reenacted; that §11-13S-3 of said code be amended and reenacted; that §11-15-8d of said code be amended and reenacted; and that §24-2F-3 of said code be amended and reenacted, all to read as follows:

CHAPTER 11. TAXATION.

ARTICLE 6F. SPECIAL METHOD FOR APPRAISING QUALIFIED CAPITAL

               ADDITIONS TO MANUFACTURING FACILITIES.

§11-6F-2. Definitions.

    As used in this article, the term:

    (a) “Certified capital addition property” means all real property and personal property included within or to be included within a qualified capital addition to a manufacturing facility that has been certified by the State Tax Commissioner in accordance with section four of this article: Provided, That airplanes and motor vehicles licensed by the Division of Motor Vehicles shall in no event constitute certified capital addition property: Provided, however, That no real property purchased, leased, constructed, located or installed on or after January 1, 2012, may be included in the measure of certified capital addition property.

    (b) “Manufacturing” means any business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number of thirty-one, thirty-two or thirty-three or the six digit code number 211112.

    (b) (c) “Manufacturing facility” means any factory, mill, chemical plant, refinery, warehouse, building or complex of buildings, including land on which it is located, and all machinery, equipment, improvements and other real property and personal property located at or within the facility used in connection with the operation of the facility in a manufacturing business.

    (c) (d) “Personal property” means all property specified in subdivision (q), section ten, article two, chapter two of this code and includes, but is not limited to, furniture, fixtures, machinery and equipment, pollution control equipment, computers and related data processing equipment, spare parts and supplies.

    (d) (e) “Qualified capital addition to a manufacturing facility” means all real property and personal property, the combined original cost of all of the property which exceeds $50 million to be constructed, located or installed at or within two miles of a manufacturing facility owned or operated by the person making the capital addition that has a total original cost before the capital addition of at least $100 million. Provided, That if beginning on and after January 1, 2012, “qualified capital addition to a manufacturing facility” means only personal property, the combined original cost of which exceeds $10 million to be constructed, located or installed on or after January 1, 2012, at or within two miles of a manufacturing facility owned or operated by the person making the capital addition that has a total original cost immediately before the capital addition of at least $20 million dollars. No real property purchased, leased, constructed, located or installed on or after January 1, 2012, may be included in the measure of the qualified capital addition to a manufacturing facility. If the capital addition is made in a steel, chemical or polymer alliance zone as designated from time-to-time by executive order of the Governor, then the person making the capital addition may for purposes of satisfying the requirements of this subsection join in a multiparty project with a person owning or operating a manufacturing facility that has a total original cost immediately before the capital addition of at least $100 million if the capital addition creates additional production capacity of existing or related products or feedstock or derivative products respecting the manufacturing facility, consists of a facility used to store, handle, process or produce raw materials for the manufacturing facility, consists of a facility used to store, handle or process natural gas to produce fuel for the generation of steam or electricity for the manufacturing facility, or consists of a facility that generates steam or electricity for the manufacturing facility, including but not limited to a facility that converts coal to a gas or liquid for the manufacturing facility’s use in heating, manufacturing or generation of electricity: Provided, That with relation to multiparty projects entailing personal property, the combined original cost of which exceeds $10 million, to be constructed, located or installed on or after January 1, 2012, the total original cost of the manufacturing facility immediately before the capital addition must be at least $20 million.

    (e) (f) “Real property” means all property specified in subdivision (p), section ten, article two, chapter two of this code and includes, but is not limited to, lands, buildings and improvements on the land such as sewers, fences, roads, paving and leasehold improvements.

§11-6F-3. Tax treatment of certified capital addition property.

    Notwithstanding any other provisions of law, the value of certified capital addition property, for purposes of ad valorem property taxation under this chapter, shall be is its salvage value, which for purposes of this article is five percent of the certified capital addition property’s original cost. For capital additions certified on or after July 1, 2011, the value of the land before any improvements shall be subtracted from the value of the capital addition and the unimproved land value shall not be given salvage value treatment.

ARTICLE 13Q. ECONOMIC OPPORTUNITY TAX CREDIT.

§11-13Q-20. Tax credit review and accountability.

    (a) Beginning on February 1, 2006 and every third year thereafter, the commissioner shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a tax credit review and accountability report evaluating the cost effectiveness of the economic opportunity credit during the most recent three-year period for which information is available. The criteria to be evaluated shall include, but not be limited to, for each year of the three-year period:

    (1) The numbers of taxpayers claiming the credit;

    (2) The net number of new jobs created by all taxpayers claiming the credit;

    (3) The cost of the credit;

    (4) The cost of the credit per new job created; and

    (5) Comparison of employment trends for an industry and for taxpayers within the industry that claim the credit.

    (b) Taxpayers claiming the credit shall provide any information the Tax Commissioner may require to prepare the report: Provided, That the information provided is subject to the confidentiality and disclosure provisions of sections five-d and five-s, article ten of this chapter.

    (c) In addition to the report required by subsection (a) of this section, on or before February 1, 2013, the commissioner, in consultation with the Department of Commerce, the Department of Transportation and the Department of Environmental Protection shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a report of the impact of all the tax credits and other economic incentives provided in the act of the Legislature which amended and reenacted this section during 2011 upon economic development in this state, including but not limited to the creation of jobs in this state, upon the state’s infrastructure, including but not limited to the need for construction or maintenance of the roads and highways of the state, upon the natural resources of the state, and upon public and private property interests in the state.

ARTICLE 13R. STRATEGIC RESEARCH AND DEVELOPMENT TAX CREDIT.

§11-13R-3. Definitions.

    (a) General. -- When used in this article or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section unless a different meaning is clearly required by either the context in which the term is used or by specific definition in this article.

    (b) Terms defined. --

    (1) “Base amount” means:

    (A) The average annual combined qualified research and development expenditure for the three taxable years immediately preceding the taxable year for which a credit is claimed under this article;

    (B) For a taxpayer that has filed a tax return under article twenty-three of this chapter for fewer than three but at least one prior taxable year, determined on the basis of all filings by the taxpayer’s controlled group, the base amount is the average annual combined qualified research and development expenditure for the number of immediately preceding taxable years, other than short taxable years, during which the taxpayer has filed a tax return under article twenty-three of this chapter; or

    (C) For a taxpayer that has not filed a tax return under article twenty-three of this chapter for at least one taxable year, determined on the basis of all filings by the taxpayer’s controlled group, the base amount is zero.

    (2) “Commissioner” and “Tax Commissioner” are used interchangeably herein and mean the Tax Commissioner of the State of West Virginia or his or her delegate.

    (3) “Controlled group” means a controlled group as defined by section 1563 of the Internal Revenue Code of 1986, as amended.

    (4) “Corporation” means any corporation, limited liability company, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.

    (5) “Delegate” in the phrase “or his or her delegate,” when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Division of the Department of Tax and Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

    (6) “Eligible taxpayer” means any person that is subject to the tax imposed by article twenty-three or article twenty-four of this chapter that is engaged in qualified research and development that has paid or incurred investment in qualified research and development credit property or that has paid or incurred qualified research and development expenses as defined in section four of this article. In the case of a sole proprietorship subject to neither the tax imposed by article twenty-three nor the tax imposed by article twenty-four, the term “eligible taxpayer” means any sole proprietor who is subject to the tax imposed by article twenty-one of this chapter and who is engaged in qualified research and development that has paid or incurred investment in qualified research and development credit property or that has paid or incurred qualified research and development expenses as defined in section four of this article.

    (7) “Partnership” includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust or estate, a corporation or a sole proprietorship. The term “partner” includes a member in such a syndicate, group, pool, joint venture or other organization.

    (8) “Person” includes any natural person, corporation, limited liability company or partnership.

    (9) “Qualified research and development credit property” means depreciable property purchased for the conduct of qualified research and development.

    (10) “Research and development” means systematic scientific, engineering or technological study and investigation in a field of knowledge in the physical, computer or software sciences often involving the formulation of hypotheses and experimentation for the purpose of revealing new facts, theories or principles or increasing scientific knowledge which may reveal the basis for new or enhanced products, equipment or manufacturing processes.

    (A) Research and development includes, but is not limited to, design, refinement and testing of prototypes of new or improved products or design or equipment or the design, refinement and testing of manufacturing processes before commercial sales relating thereto have begun. For purposes of this section, commercial sales includes, but is not limited to, sales of prototypes or sales for market testing.

    (B) Research and development does not include:

    (i) Market research;

    (ii) Sales research;

    (iii) Efficiency surveys;

    (iv) Consumer surveys;

    (v) Product market testing;

    (vi) Product testing by product consumers or through consumer surveys for evaluation of consumer product performance or consumer product usability;

    (vii) The ordinary testing or inspection of materials or products for quality control; (quality control testing);

    (viii) Management studies;

    (ix) Advertising;

    (x) Promotions;

    (xi) The acquisition of another’s patent, model, production or process or investigation or evaluation of the value or investment potential related thereto;

    (xii) Research in connection with literary, historical or similar activities;

    (xiii) Research in the social sciences, economics, humanities or psychology and other nontechnical activities; and

    (xiv) The providing of sales services or any other service, whether technical service or nontechnical service.

    (11) “Related person” means:

    (A) A corporation, limited liability company, partnership, association or trust controlled by the taxpayer;

    (B) An individual, corporation, limited liability company, partnership, association or trust that is in control of the taxpayer;

    (C) A corporation, limited liability company, partnership, association or trust controlled by an individual, corporation, partnership, association or trust that is in control of the taxpayer; or

    (D) A member of the same controlled group as the taxpayer.

    For purposes of this article, “control”, with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation entitled to vote. “Control”, with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust is determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the United States Internal Revenue Code of 1986, as amended, other than paragraph (3) of that section.

    (12) “Taxpayer” means any person subject to the tax imposed by article twenty-three or twenty-four of this chapter or both. In the case of a sole proprietorship subject to neither the tax imposed by article twenty-three nor the tax imposed by article twenty-four, the term “taxpayer” means any sole proprietor who is subject to the tax imposed by article twenty-one of this chapter.

    (13) “This code” means the Code of West Virginia, 1931, as amended.

    (14) “This state” means the State of West Virginia.

ARTICLE 13S. MANUFACTURING INVESTMENT TAX CREDIT.

§11-13S-3. Definitions.

    (a) Any term used in this article has the meaning ascribed by this section unless a different meaning is clearly required by the context of its use or by definition in this article.

    (b) For purpose of this article, the term:

    (1) “Eligible taxpayer” means an industrial taxpayer who purchases new property for the purpose of industrial expansion or for the purpose of industrial revitalization of an existing industrial facility in this state.

    (2) “Industrial expansion” means capital investment in a new or expanded industrial facility in this state.

    (3) “Industrial facility” means any factory, mill, plant, refinery, warehouse, building or complex of buildings located within this state, including the land on which it is located, and all machinery, equipment and other real and tangible personal property located at or within the facility primarily used in connection with the operation of the manufacturing business.

    (4) “Industrial revitalization” or “revitalization” means capital investment in an industrial facility located in this state to replace or modernize buildings, equipment, machinery and other tangible personal property used in connection with the operation of the facility in an industrial business of the taxpayer including the acquisition of any real property necessary to the industrial revitalization.

    (5) “Industrial taxpayer” means any taxpayer who is primarily engaged in a manufacturing business.

    (6) “Manufacturing” means any business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number, of thirty-one, thirty-two or thirty-three or the six digit code number 211112.

    (7) “Property purchased for manufacturing investment” means real property, and improvements thereto, and tangible personal property but only if the property was constructed or purchased on or after the first day of January, two thousand three, January 1, 2003, for use as a component part of a new, expanded or revitalized industrial facility. This term includes only that tangible personal property with respect to which depreciation, or amortization in lieu of depreciation, is allowable in determining the federal income tax liability of the industrial taxpayer, that has a useful life, at the time the property is placed in service or use in this state, of four years or more. Property acquired by written lease for a primary term of ten years or longer, if used as a component part of a new or expanded industrial facility, is included within this definition.

    (A) “Property purchased for manufacturing investment” does not include:

    (i) Repair costs, including materials used in the repair, unless for federal income tax purposes, the cost of the repair must be capitalized and not expensed;

    (ii) Motor vehicles licensed by the department of motor vehicles;

    (iii) Airplanes;

    (iv) Off-premises transportation equipment;

    (v) Property which is primarily used outside this state; and

    (vi) Property which is acquired incident to the purchase of the stock or assets of an industrial taxpayer which property was or had been used by the seller in his or her industrial business in this state or in which investment was previously the basis of a credit against tax taken under any other article of this chapter.

    (B) Purchases or acquisitions of land or depreciable property qualify as purchases of property purchased for manufacturing investment for purposes of this article only if:

    (i) The property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under section 267 or 707(b) of the United States Internal Revenue Code of 1986, as amended;

    (ii) The property is not acquired from a related person or by one component member of a controlled group from another component member of the same controlled group. The Tax Commissioner may waive this requirement if the property was acquired from a related party for its then fair market value; and

    (iii) The basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined, in whole or in part, by reference to the federal adjusted basis of the property in the hands of the person from whom it was acquired or under Section 1014(e) of the United States Internal Revenue Code of 1986, as amended.

    (8) “Qualified manufacturing investment” means that amount determined under section five of this article as qualified manufacturing investment.

    (9) “Taxpayer” means any person subject to any of the taxes imposed by article thirteen-a, twenty-three or twenty-four of this chapter or any combination of those articles of this chapter.

ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.

§11-15-8d. Limitations on right to assert exemptions.

    (a) Persons who perform “contracting” as defined in section two of this article or persons acting in an agency capacity may not assert any exemption to which the purchaser of such contracting services or the principal is entitled. Any statutory exemption to which a taxpayer may be entitled shall be is invalid unless the tangible personal property or taxable service is actually purchased by such taxpayer and is directly invoiced to and paid by such taxpayer. This section shall not does not apply to purchases by an employee for his or her employer, purchases by a partner for his or her partnership or purchases by a duly authorized officer of a corporation, or unincorporated organization, for his or her corporation or unincorporated organization so long as the purchase is invoiced to and paid by the employer, partnership, corporation or unincorporated organization.

    (b) Transition rule. -- This section shall not does not apply to purchases of tangible personal property or taxable services in fulfillment of a purchasing agent or procurement agent contract executed and legally binding on the parties thereto prior to September 15, 1999. Provided, That This transition rule shall not does not apply to any purchases of tangible personal property or taxable services made under such a contract after August 31, 1991 and this transition rule shall not does not apply if the primary purpose of the purchasing agent or procurement agent contract was to avoid payment of consumers sales and use taxes. However, Effective July 1, 2007, this section shall not does not apply to purchases of services, machinery, supplies or materials, except gasoline and special fuel, to be directly used or consumed in the construction, alteration, repair or improvement of a new or existing building or structure by a person performing “contracting”, as defined in section two of this article, if the purchaser of the “contracting” services would be entitled to claim the refundable exemption under subdivision (2), subsection (b), section nine of this article had it purchased the services, machinery, supplies or materials. Effective July 1, 2009, this section shall not does not apply to purchases of services, computers, servers, building materials and tangible personal property, except purchases of gasoline and special fuel, to be installed into a building or facility or directly used or consumed in the construction, alteration, repair or improvement of a new or existing building or structure by a person performing “contracting”, as defined in section two of this article, if the purchaser of the “contracting” services would be entitled to claim the exemption under subdivision (7), subsection (a), section nine-h of this article. Effective July 1, 2011, this section does not apply to purchases of services, machinery, supplies or materials, except gasoline and special fuel, to be directly used or consumed in the construction, alteration, repair or improvement of a new or existing natural gas compressor station or gas transmission line having a diameter of twenty inches or more by a person performing “contracting”, as defined in section two of this article, if the purchaser of the “contracting” services would be entitled to claim the refundable exemption under subdivision (2), subsection (b), section nine of this article had it purchased the services, machinery, supplies or materials.

CHAPTER 24. PUBLIC SERVICE COMMISSION.

ARTICLE 2F. ALTERNATIVE AND RENEWABLE ENERGY PORTFOLIO STANDARD.

§24-2F-3. Definitions.

    Unless the context clearly requires a different meaning, as used in this article:

    (1) “Advanced coal technology” means a technology that is used in a new or existing energy generating facility to reduce airborne carbon emissions associated with the combustion or use of coal and includes, but is not limited to, carbon dioxide capture and sequestration technology, supercritical technology, advanced supercritical technology as that technology is determined by the Public Service Commission, ultrasupercritical technology and pressurized fluidized bed technology and any other resource, method, project or technology certified by the commission as advanced coal technology.

    (2) “Alternative and renewable energy portfolio standard” or “portfolio standard” means a requirement in any given year that requires an electric utility to own credits in an amount equal to a certain percentage of electric energy sold in the preceding calendar year by the electric utility to retail customers in this state.

    (3) “Alternative energy resources” means any of the following resources, methods or technologies for the production or generation of electricity:

    (A) Advanced coal technology;

    (B) Coal bed methane;

    (C) Natural gas, including any component of raw natural gas;

    (D) Fuel produced by a coal gasification or liquefaction facility;

    (E) Synthetic gas;

    (F) Integrated gasification combined cycle technologies;

    (G) Waste coal;

    (H) Tirederived fuel;

    (I) Pumped storage hydroelectric projects; and

    (J) Any other resource, method, project or technology certified as an alternative energy resource by the Public Service Commission.

    (4) “Alternative and renewable energy resource credit” or “credit” means a tradable instrument that is used to establish, verify and monitor the generation of electricity from alternative and renewable energy resource facilities, energy efficiency or demand-side energy initiative projects or greenhouse gas emission reduction or offset projects.

    (5) “Alternative energy resource facility” means a facility or equipment that generates electricity from alternative energy resources.

    (6) “Commission” or “Public Service Commission” means the Public Service Commission of West Virginia as continued pursuant to section three, article one of this chapter.

    (7) “Customer-generator” means an electric retail customer who owns and operates a customer-sited generation project utilizing an alternative or renewable energy resource or a net metering system in this state.

    (8) “Electric utility” means any electric distribution company or electric generation supplier that sells electricity to retail customers in this state. Unless specifically provided for otherwise, for the purposes of this article, the term “electric utility” may not include rural electric cooperatives, municipally-owned electric facilities or utilities serving less than thirty thousand residential electric customers in West Virginia.

    (9) “Energy efficiency or demand-side energy initiative project” means a project in this state that promotes customer energy efficiency or the management of customer consumption of electricity through the implementation of:

    (A) Energy efficiency technologies, equipment, management practices or other strategies utilized by residential, commercial, industrial, institutional or government customers that reduce electricity consumption by those customers;

    (B) Load management or demand response technologies, equipment, management practices, interruptible or curtailable tariffs, energy storage devices or other strategies in residential, commercial, industrial, institutional and government customers that shift electric load from periods of higher demand to periods of lower demand;

    (C) Industrial by-product technologies consisting of the use of a by-product from an industrial process, including, but not limited to, the reuse of energy from exhaust gases or other manufacturing by-products that can be used in the direct production of electricity at the customer’s facility;

    (D) Customer-sited generation, demand-response, energy efficiency or peak demand reduction capabilities, whether new or existing, that the customer commits for integration into the electric utility’s demand-response, energy efficiency or peak demand reduction programs; or

    (E) Infrastructure and modernization projects that help promote energy efficiency, reduce energy losses or shift load from periods of higher demand to periods of lower demand, including the modernization of metering and communications, (also known as “smart grid”), distribution automation, energy storage, distributed energy resources and investments to promote the electrification of transportation.

    (10) “Greenhouse gas emission reduction or offset project” means a project to reduce or offset greenhouse gas emissions from sources in this state other than the electric utility’s own generating and energy delivery operations. Greenhouse gas emission reduction or offset projects include, but are not limited to:

    (A) Methane capture and destruction from landfills, coal mines or farms;

    (B) Forestation, afforestation or reforestation; and

    (C) Nitrous oxide or carbon dioxide sequestration through reduced fertilizer use or no-till farming.

    (11) “Net metering” means measuring the difference between electricity supplied by an electric utility and electricity generated from an alternative or renewable energy resource facility owned or operated by an electric retail customer when any portion of the electricity generated from the alternative or renewable energy resource facility is used to offset part or all of the electric retail customer’s requirements for electricity.

    (12) “Reclaimed surface mine” means a surface mine, as that term is defined in section three, article three, chapter twenty-two of this code, that is reclaimed or is being reclaimed in accordance with state or federal law.

    (13) “Renewable energy resource” means any of the following resources, methods, projects or technologies for the production or generation of electricity:

    (A) Solar photovoltaic or other solar electric energy;

    (B) Solar thermal energy;

    (C) Wind power;

    (D) Run of river hydropower;

    (E) Geothermal energy, which means a technology by which electricity is produced by extracting hot water or steam from geothermal reserves in the earth’s crust to power steam turbines that drive generators to produce electricity;

    (F) Biomass energy, which means a technology by which electricity is produced from a nonhazardous organic material that is available on a renewable or recurring basis, including pulp mill sludge;

    (G) Biologically derived fuel including methane gas, ethanol or biodiesel fuel;

    (H) Fuel cell technology, which means any electrochemical device that converts chemical energy in a hydrogen-rich fuel directly into electricity, heat and water without combustion;

    (I) Recycled energy, which means useful thermal, mechanical or electrical energy produced from: (i) Exhaust heat from any commercial or industrial process; (ii) waste gas, waste fuel or other forms of energy that would otherwise be flared, incinerated, disposed of or vented; and (iii) electricity or equivalent mechanical energy extracted from a pressure drop in any gas, excluding any pressure drop to a condenser that subsequently vents the resulting heat; and

    (J) Any other resource, method, project or technology certified by the commission as a renewable energy resource.

    (14) “Renewable energy resource facility” means a facility or equipment that generates electricity from renewable energy resources.

    (15) “Waste coal” means a technology by which electricity is produced by the combustion of the by-product, waste or residue created from processing coal, such as gob.

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