H. B. 2445
(By Delegates Sumner, Sobonya, Wakim, Frich,
Schoen and Ellem)
[Introduced February 16, 2005; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §7-5B-1, §7-5B-2,
§7-5B-3, §7-5B-4, §7-5B-5, §7-5B-6 and §7-5B-7; to amend said
code by adding thereto a new article, designated §8-13D-1,
§8-13D-2, §8-13D-3, §8-13D-4, §8-13D-5, §8-13D-6 and §8-13D-7;
to amend said code by adding thereto a new section, designated
§11-1C-1c; to amend said code by adding thereto a new section,
designated §11-5-15; to amend and reenact §11-6-13, §11-6-14,
§11-6-15, §11-6-18, §11-6-19, §11-6-20, §11-6-21, §11-6-22 and
§11-6-23 of said code; to amend said code by adding thereto a
new section, designated §11-6D-9; to amend said code by adding
thereto a new section, designated §11-6F-7; to amend said code
by adding thereto four new sections, designated §11-8-1a,
§11-8-2a, §11-8-3a and 11-8-23a; to amend and reenact
§11-8-4, §11-8-5, §11-8-6, §11-8-6a, §11-8-6b, §11-8-6c,
§11-8-6d, §11-8-6e, §11-8-6f, §11-8-12, §11-8-12a, §11-8-13, §11-8-16, §11-8-17 and §11-8-24 of said code; to amend and
reenact §11-9-2 of said code; to amend and reenact §11-10-3 of
said code; to amend said code by adding thereto a new section,
designated §11-10-11b; to amend and reenact §11-12-1,
§11-12-26 and §11-12-75 of said code; to amend and reenact
§11-13-2e and §11-13-2o of said code; to amend and reenact
§11-13A-2, §11-13A-3 and §11-13A-20a of said code; to amend
and reenact §11-13B-3 of said code; to amend said code by
adding thereto a new section, designated §11-13B-19; to amend
said code by adding thereto a new section, designated
§11-13C-17; to amend said code by adding thereto a new
section, designated §11-13D-11; to amend said code by adding
thereto a new section, designated §11-13E-8; to amend said
code by adding thereto a new section, designated §11-13F-6; to
amend said code by adding thereto a new section, designated
§11-13G-6; to amend said code by adding thereto a new section,
designated §11-13J-13; to amend said code by adding thereto a
new section, designated §11-13K-7; to amend said code by
adding thereto a new section, designated §11-13N-13; to amend
said code by adding thereto a new section, designated
§11-13Q-22; to amend said code by adding thereto a new
section, designated §11-13R-13; to amend said code by adding
thereto a new section, designated §11-13S-11; to amend said
code by adding thereto a new section, designated §11-15-34; to amend said code by adding thereto a new section, designated
§11-15A-30; to amend said code by adding thereto a new
article, designated §11-15C-1, §11-15C-2, §11-15C-3,
§11-15C-4, §11-15C-5, §11-15C-6, §11-15C-7, §11-15C-8,
§11-15C-9, §11-15C-10, §11-15C-11, §11-15C-12, §11-15C-13,
§11-15C-14, §11-15C-15, §11-15C-16, §11-15C-17, §11-15C-18,
§11-15C-19, §11-15C-20, §11-15C-21, §11-15C-22, §11-15C-23,
§11-15C-24, §11-15C-25 and §11-15C-26; to amend said code by
adding thereto a new section, designated §11-19-13; to amend
said code by adding thereto two new sections, designated
§11-21-8i and §11-21-96; to amend said code by adding thereto
a new article, designated §11-21A-1, §11-21A-2, §11-21A-3,
§11-21A-4, §11-21A-5, §11-21A-6, §11-21A-7, §11-21A-8,
§11-21A-9, §11-21A-10, §11-21A-11, §11-21A-12, §11-21A-13,
§11-21A-14, §11-21A-15, §11-21A-16, §11-21A-17, §11-21A-18,
§11-21A-19, §11-21A-30, §11-21A-31, §11-21A-32, §11-21A-33,
§11-21A-34, §11-21A-35, §11-21A-36, §11-21A-37, §11-21A-38,
§11-21A-51, §11-21A-52, §11-21A-53, §11-21A-54, §11-21A-55,
§11-21A-56, §11-21A-57, §11-21A-58, §11-21A-59, §11-21A-60,
§11-21A-61, §11-21A-71, §11-21A-72, §11-21A-73, §11-21A-74,
§11-21A-75, §11-21A-76, §11-21A-77, §11-21A-78, §11-21A-79,
§11-21A-80 and §11-21A-81; to amend said code by adding
thereto a new section, designated §11-23-29; to amend said
code by adding thereto two new sections, designated §11-24-23h and §11-24-43; to amend said code by adding thereto a new
section, designated §11-27-37; to amend said code by adding
thereto a new article, designated §11-28-1, §11-28-2,
§11-28-3, §11-28-4, §11-28-5, §11-28-6, §11-28-7, §11-28-8,
§11-28-9, §11-28-10, §11-28-11, §11-28-12, §11-28-13,
§11-28-14, §11-28-15, §11-28-16, §11-28-17, §11-28-18,
§11-28-19, §11-28-20 and §11-28-21; and to amend said code by
adding thereto a new section, designated §17A-3-4a, all
relating generally to the comprehensive reform of the State's
tax laws; granting county governments more flexibility in
raising revenues; granting municipalities more flexibility in
raising revenues; providing for the phase-out of ad valorem
taxation of tangible personal property; allocating the
revenues from ad valorem taxation of the property of public
service businesses exclusively to the state; prospectively
terminating the alternate-fuel motor vehicle tax credit;
prospectively terminating the special method for appraising
qualified capital additions to manufacturing facilities;
revising the allocation of the authority to lay levies of ad
valorem property taxes; extending the applicability of the tax
crimes and penalties act to general excise tax, progressive
income tax and business activities and profits tax; extending
the applicability of the tax procedure and administration act
to general excise tax, progressive income tax and business activities and profits tax; increasing the rate of tax on
corporations with substantial land holdings and providing a
credit against tax for severance taxes paid; phasing out
business and occupation tax on the business of gas storage;
phasing down the rate of business and occupation tax on the
business of generating or selling electricity; terminating the
imposition of tax on certain health care services; phasing out
telecommunications tax; prospectively terminating the credits
for business investment and jobs expansion, industrial
expansion and revitalization, research and development,
certain housing development, management information services
facilities, facilities producing coal-based liquids, aerospace
facilities and coal-loading facilities; reducing electric and
natural gas utility rates for low-income customers; reducing
telephone utility rates for low-income residential customers,
neighbor investment and agricultural equipment; prospectively
terminating the economic opportunity, strategic research and
manufacturing investment tax credits; preserving the economic
benefit of all terminated credits for taxpayers who gained
entitlement to such credits prior to their termination;
terminating consumers sales and service tax and use tax;
imposing general excise tax; terminating soft drinks tax;
terminating personal income tax; imposing progressive income
tax; terminating business franchise tax; terminating corporation net income tax; phasing out health care provider
tax; imposing business activities and profits tax; terminating
motor vehicle title privilege tax; and providing an effective
date of all such enactments based on the voters' ratification
of the fair taxation amendment to the Constitution of West
Virginia.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §7-5B-1, §7-5B-2,
§7-5B-3, §7-5B-4, §7-5B-5, §7-5B-6 and §7-5B-7; that said code be
amended by adding thereto a new article, designated §8-13D-1,
§8-13D-2, §8-13D-3, §8-13D-4, §8-13D-5, §8-13D-6 and §8-13D-7; that
said code be amended by adding thereto a new section, designated
§11-1C-1c; that said code be amended by adding thereto a new
section, designated §11-5-15; that §11-6-13, §11-6-14, §11-6-15,
§11-6-18, §11-6-19, §11-6-20, §11-6-21, §11-6-22 and §11-6-23 of
said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §11-6D-9; that said code
be amended by adding thereto a new section, designated §11-6F-7;
that said code be amended by adding thereto four new sections,
designated §11-8-1a, §11-8-2a, §11-8-3a and 11-8-23a; that §11-8-4,
§11-8-5, §11-8-6, §11-8-6a, §11-8-6b, §11-8-6c, §11-8-6d, §11-8-6e,
§11-8-6f, §11-8-12, §11-8-12a, §11-8-13, §11-8-16, §11-8-17 and
§11-8-24 of said code be amended and reenacted; that §11-9-2 of said code be amended and reenacted; that §11-10-3 be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §11-10-11b; that §11-12-1, §11-12-26 and
§11-12-75 of said code be amended and reenacted; that §11-13-2e and
§11-13-2o of said code be amended and reenacted; that §11-13A-2,
§11-13A-3 and §11-13A-20a of said code be amended and reenacted;
that §11-13B-3 of said code be amended and reenacted; that said
code be amended by adding thereto a new section, designated
§11-13B-19; that said code be amended by adding thereto a new
section, designated §11-13C-17; that said code be amended by adding
thereto a new section, designated §11-13D-11; that said code be
amended by adding thereto a new section, designated §11-13E-8; that
said code be amended by adding thereto a new section, designated
§11-13F-6; that said code be amended by adding thereto a new
section, designated §11-13G-6; that said code be amended by adding
thereto a new section, designated §11-13J-13; that said code be
amended by adding thereto a new section, designated §11-13K-7; that
said code be amended by adding thereto a new section, designated
§11-13N-13; that said code be amended by adding thereto a new
section, designated §11-13Q-22; that said code be amended by adding
thereto a new section, designated §11-13R-13; that said code be
amended by adding thereto a new section, designated §11-13S-11;
that said code be amended by adding thereto a new section,
designated §11-15-34; that said code be amended by adding thereto a new section, designated §11-15A-30; that said code be amended by
adding thereto a new article, designated §11-15C-1, §11-15C-2,
§11-15C-3, §11-15C-4, §11-15C-5, §11-15C-6, §11-15C-7, §11-15C-8,
§11-15C-9, §11-15C-10, §11-15C-11, §11-15C-12, §11-15C-13,
§11-15C-14, §11-15C-15, §11-15C-16, §11-15C-17, §11-15C-18,
§11-15C-19, §11-15C-20, §11-15C-21, §11-15C-22, §11-15C-23,
§11-15C-24, §11-15C-25 and §11-15C-26; that said code be amended by
adding thereto a new section, designated §11-19-13; that said code
be amended by adding thereto two new sections, designated §11-21-8i
and §11-21-96; that said code be amended by adding thereto a new
article, designated §11-21A-1, §11-21A-2, §11-21A-3, §11-21A-4,
§11-21A-5, §11-21A-6, §11-21A-7, §11-21A-8, §11-21A-9, §11-21A-10,
§11-21A-11, §11-21A-12, §11-21A-13, §11-21A-14, §11-21A-15,
§11-21A-16, §11-21A-17, §11-21A-18, §11-21A-19, §11-21A-30,
§11-21A-31, §11-21A-32, §11-21A-33, §11-21A-34, §11-21A-35,
§11-21A-36, §11-21A-37, §11-21A-38, §11-21A-51, §11-21A-52,
§11-21A-53, §11-21A-54, §11-21A-55, §11-21A-56, §11-21A-57,
§11-21A-58, §11-21A-59, §11-21A-60, §11-21A-61, §11-21A-71,
§11-21A-72, §11-21A-73, §11-21A-74, §11-21A-75, §11-21A-76,
§11-21A-77, §11-21A-78, §11-21A-79, §11-21A-80 and §11-21A-81; that
said code be amended by adding thereto a new section, designated
§11-23-29; that said code be amended by adding thereto two new
sections, designated §11-24-23h and §11-24-43; that said code be
amended by adding thereto a new section, designated §11-27-37; that said code be amended by adding thereto a new article, designated
§11-28-1, §11-28-2, §11-28-3, §11-28-4, §11-28-5, §11-28-6,
§11-28-7, §11-28-8, §11-28-9, §11-28-10, §11-28-11, §11-28-12,
§11-28-13, §11-28-14, §11-28-15, §11-28-16, §11-28-17, §11-28-18,
§11-28-19, §11-28-20 and §11-28-21; and that said code be amended
by adding thereto a new section, designated §17A-3-4a, all to read
as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 5B. COUNTY GOVERNMENT FISCAL POWERS FLEXIBILITY.
§7-5B-1. Short title.
This article is known and may be cited as the "County
Government Fiscal Powers Flexibility Act."
§7-5B-2. Legislative findings and declaration of purpose.
The Legislature finds that counties in this state need greater
flexibility to efficiently raise revenues sufficient to provide the
public services expected and demanded by their residents and to
adequately compensate and provide benefits for their employees.
The Legislature does therefore declare that the purpose of this
article shall be to authorize the counties of this state to
efficiently raise adequate revenues to fund those important
obligations.
§7-5B-3. Definitions.
For purposes of this article, the term:
(a) "Commission" means the duly elected governing body of a county;
(b) "County" means one of the fifty-five political
subdivisions of this state as established in section one, article
two of the Constitution of this state.
§7-5B-4. Add-on taxes authorized.
(a) The commission may, by order entered in accordance with
the provisions of this article, impose an add-on progressive income
tax on the residents of the county or an add-on general excise tax
on the privilege of selling tangible personal property and
rendering selected services in the county, or both, all to be in
accordance with this article.
(b) The base of an add-on general excise tax imposed pursuant
to this article shall be identical to the base of the general
excise tax imposed pursuant to article fifteen-c, chapter eleven of
this code on sales made and services rendered within the boundaries
of the county: Provided, That all exemptions and exceptions from
the general excise tax imposed pursuant to article fifteen-c of
chapter eleven of this code shall also apply to the add-on general
excise tax.
(c) The rate of an add-on general excise tax imposed by a
county pursuant to this article shall be provided in an order
entered by the commission. The rate shall be stated in tenths of
a cent on a dollar of sales and services subject to the tax, and
may not exceed one cent.
(d) The base of an add-on progressive income tax imposed
pursuant to this article shall be identical to the base of the
progressive income tax imposed pursuant to article twenty-one-a,
chapter eleven of this code on income earned by residents of the
county imposing it: Provided, That all deductions, exemptions and
exceptions allowed for the progressive income tax imposed pursuant
to article twenty-one-a of chapter eleven of this code shall also
apply to the add-on progressive income tax.
(e) The rate of an add-on progressive income tax imposed by a
county pursuant to this article shall be provided in an order
entered by the Commission. The rate shall be stated in tenths of
one percent of income subject to the tax and may not exceed one
percent.
(f) The order of a commission imposing an add-on general
excise tax or an add-on progressive income tax shall provide that
the State Tax Commissioner shall administer, assess, collect and
enforce the tax on behalf of and as the agent for the county as
provided in section eleven-a, article ten of chapter eleven of this
code.
(g) Any taxes imposed pursuant to the authority of this
section shall be effective on and after the date of entry of an
order of the commission imposing such tax, or at such later date
expressly designated in the order.
§7-5B-5. Notice; hearing.
A commission desiring to impose an add-on general excise tax
or an add-on progressive income tax shall conduct a public hearing.
A notice of the public hearing shall be published as a Class I-0
legal advertisement in compliance with article three, chapter
fifty-nine of this code at least twenty days prior to the scheduled
hearing. In addition to the time and place of the hearing, the
notice must also state:
(a) The purpose of the hearing;
(b) The base and rate of the tax that would be imposed. At
the time and place set forth in the notice, the Commission shall
afford the opportunity to be heard to any residents of the county.
If the Commission, following the public hearing, determines it
advisable and in the public interest to enter an order imposing an
add-on general excise tax, or an add-on progressive income tax, it
shall proceed according to the provisions of section six of this
article.
§7-5B-6. Order to impose add-on general excise tax or add-on
progressive income tax.
If a hearing has been conducted as provided in section five of
this article, and the commission has determined it is advisable and
in the public interest to adopt an ordinance imposing an add-on
general excise tax, or an add-on progressive income tax, it may
impose the tax by entry of an order as provided in article eleven
of this chapter:
Provided, That, without conducting another public hearing, the commission may not amend, alter or change in any
manner the rate of tax as stated in the notice of the public
hearing described in section five of this article. In addition to
all other requirements, the order shall contain the following:
(1) The base and rate of the add-on general excise tax or the
add-on progressive income tax that would be imposed; and
(2) The manner in which the tax will be administered.
§7-5B-7. Effective date of article.
Notwithstanding the date of enactment of the act of the
Legislature enacting this article, this article shall not become
operational and shall have no force and effect until the first day
of January of the first calendar year following the year in which
the voters ratify the Fair Taxation Amendment to the Constitution
of this state.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 13D. MUNICIPAL FISCAL POWERS FLEXIBILITY.
§8-13D-1. Short title.
This article is known and may be cited as the "Municipal
Fiscal Powers Flexibility Act."
§8-13D-2. Legislative findings and declaration of purpose.
The Legislature finds that municipalities in this state need
greater flexibility in their authority to efficiently raise
sufficient revenues to provide the public services expected and
demanded by their residents and to adequately compensate and provide benefits for their employees. The Legislature does
therefore declare that the purpose of this article shall be to
authorize the municipalities of this state to efficiently raise
adequate revenues to fund those important obligations.
§8-13D-3. Definitions.
For purposes of this article, the term:
(a) "Council" means the duly elected governing body of a
municipality;
(b) "Municipality" means a municipal corporation recognized as
such in chapter eight of this code.
§8-13D-4. Add-on taxes authorized.
(a) The council may, by ordinance adopted in accordance with
the provisions of this article, impose an add-on progressive income
tax or an add-on general excise tax on the privilege of selling
tangible personal property and rendering selected services in the
municipality, or both, all to be in accordance with this section.
(b) The base of an add-on general excise tax imposed pursuant
to this article shall be identical to the base of the general
excise tax imposed pursuant to article fifteen-c, chapter eleven of
this code on sales made and services rendered within the boundaries
of the municipality:
Provided, That all exemptions and exceptions
from the general excise tax imposed pursuant to article fifteen-c
of chapter eleven of this code shall also apply to the add-on
general excise tax.
(c) The rate of an add-on general excise tax imposed by a
municipality pursuant to this article shall be provided in an
ordinance adopted by the council. The rate shall be stated in
tenths of a cent on a dollar of sales and services subject to the
tax, and may not exceed one cent.
(d) The base of an add-on progressive income tax imposed
pursuant to this article shall be identical to the base of the
progressive income tax imposed pursuant to article twenty-one-a,
chapter eleven of this code on income earned by residents of the
municipality imposing it:
Provided, That all deductions,
exemptions and exceptions allowed for the progressive income tax
imposed pursuant to article twenty-one-a of chapter eleven of this
code shall also apply to the add-on progressive income tax.
(e) The rate of an add-on progressive income tax imposed by a
municipality pursuant to this article shall be provided in an
ordinance adopted by the council. The rate shall be stated in
tenths of one percent of income subject to the tax and may not
exceed one percent.
(f) The ordinance of a municipality imposing an add-on general
excise tax or an add-on progressive income tax shall provide that
the State Tax Commissioner shall administer, assess, collect and
enforce the tax on behalf of and as the agent for the municipality
as provided in section eleven-a, article ten of chapter eleven of
this code.
(g) Any taxes imposed pursuant to the authority of this
section shall be effective on and after the date of adoption of an
ordinance imposing such tax, or at such later date expressly
designated in the ordinance.
§8-13D-5. Notice; hearing.
The council of a municipality desiring to impose an add-on
general excise tax or an add-on progressive income tax shall
conduct a public hearing. A notice of the public hearing shall be
published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place
of the hearing, the notice must also state:
(a) The purpose of the hearing;
(b) The base and rate of the tax that would be imposed.
At the time and place set forth in the notice, the council
shall afford the opportunity to be heard to any residents of the
municipality. If the council, following the public hearing,
determines it advisable and in the public interest to adopt an
ordinance imposing an add-on general excise tax, or an add-on
progressive income tax, it shall proceed according to the
provisions of section six of this article.
§8-13D-6. Ordinance to impose add-on general excise tax or add-on
progressive income tax.
If a hearing has been conducted as provided in section five of this article, and the council has determined it is advisable and in
the public interest to adopt an ordinance imposing an add-on
general excise tax, or an add-on progressive income tax, it may
impose the tax by ordinance as provided in article eleven of this
chapter:
Provided, That, without conducting another public
hearing, the council may not amend, alter or change in any manner
the rate of tax as stated in the notice of the public hearing
described in section five of this article. In addition to all
other requirements, the ordinance shall contain the following:
(1) The base and rate of the add-on general excise tax or the
add-on progressive income tax that would be imposed; and
(2) The manner in which the tax will be administered.
§8-13D-7. Effective date of article.
Notwithstanding the date of enactment of the act of the
Legislature enacting this article, this article shall not become
operational and shall have no force and effect until the first day
of January of the first calendar year following the year in which
the voters ratify the Fair Taxation Amendment to the Constitution
of this state.
CHAPTER 11. TAXATION.
ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.
§11-1C-1c. Phase-out of taxation of tangible personal property
upon ratification of an amendment to the
Constitution authorizing the same.
(a)
Regular levies. -- Notwithstanding anything in this code
to the contrary, tangible personal property having a tax situs in
this state that was taxable prior to the effective date of this
section shall be exempt from regular levies of ad valorem property
tax beginning on the first day of the first tax year next
succeeding the effective date of this section:
Provided, That all
such tangible personal property except motor vehicles registered
with the Division of Motor Vehicles shall be subject to regular
levies of ad valorem property tax and taxed at one hundred percent
of assessed value for the first tax year next succeeding the
effective date of this section; at eighty percent of assessed value
for the second tax year next succeeding the effective date of this
section; at sixty percent of assessed value for the third tax year
next succeeding the effective date of this section; at forty
percent of assessed value for the third tax year next succeeding
the effective date of this section; at twenty percent of assessed
value for the fourth tax year next succeeding the effective date of
this section; and shall not be subject to regular levies of ad
valorem property tax for the fifth tax year next succeeding the
effective date of this section and thereafter.
(b)
Excess levies. -- Notwithstanding anything in this code to
the contrary, tangible personal property having a tax situs in this
state that was taxable prior to the effective date of this section
shall, beginning on the first day of the first tax year next succeeding the effective date of this section, be exempt from
excess levies of ad valorem property tax:
Provided, That all such
tangible personal property except for motor vehicles registered
with the Division of Motor Vehicles shall continue to be subject to
taxation at one hundred percent of assessed value for excess levies
approved by the voters prior to the effective date of this section
until the first day of the sixth tax year next succeeding the
effective date of this section when no tangible personal property
shall then or thereafter be subject to excess levies of ad valorem
tax.
(c)
Levies for bonded indebtedness. -- Notwithstanding
anything in this code to the contrary, tangible personal property
having a tax situs in this state that was taxable prior to the
effective date of this section shall, beginning on the first day of
the first tax year next succeeding the effective date of this
section, be exempt from levies of ad valorem property tax for
bonded indebtedness approved by the voters:
Provided, That all
such tangible personal property except for motor vehicles
registered with the Division of Motor Vehicles shall continue to be
subject to taxation at one hundred percent of assessed value for
levies for bonded indebtedness approved by the voters prior to the
effective date of this section until the first day of the sixth tax
year next succeeding the effective date of this section when no
tangible personal property shall then and thereafter be subject to levies of ad valorem tax for bonded indebtedness.
(d)
Effective date. -- Notwithstanding the date of enactment
of the act of the Legislature enacting this section, this section
shall not become operational and shall have no force and effect
until the day the voters ratify the Fair Taxation Amendment to the
Constitution of this state authorizing the phase-out and repeal of
the ad valorem taxation of tangible personal property as provided
in this section.
ARTICLE 5. ASSESSMENT OF PERSONAL PROPERTY.
§11-5-15. Repeal of personal property taxation by Fair Taxation
Amendment.
Notwithstanding anything contained in this code to the
contrary, the provisions of this article shall cease to be
operative and shall no longer have any force or effect with respect
to tax years following the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state repealing the
ad valorem taxation of tangible personal property:
Provided, That,
the foregoing notwithstanding, the provisions of this article are
preserved and shall remain operative and shall be in force and
effect for all tax years next preceding and including the year in
which the Fair Taxation Amendment shall have been ratified by the
voters and including, further, the years subsequent to such
ratification until the first tax year next succeeding the end of
the phase-out of the ad valorem taxation of tangible personal property as provided in the Fair Taxation Amendment and as
implemented in section one-c, article one-c of this chapter.
ARTICLE 6. ASSESSMENT OF PUBLIC SERVICE BUSINESSES.
§11-6-13. Apportionment of value among counties, districts and
municipalities.
In case the list and valuation of the property filed with the
Tax Commissioner be satisfactory to the Board of Public Works, or
upon assessment of the property of such owner or operator being
made by the Board of Public Works, the Auditor shall immediately
apportion to each county, in which any part of such property is
situated, the value of the property therein of every such owner or
operator as valued or assessed hereunder and the relative value of
such operating property within each county compared to the value of
the total operating property within the state, to be determined
upon such factors as the Auditor shall deem proper; and further
shall apportion such values among the several districts, being
school districts, and a proportional valuation to each municipality
therein, in which any part of such property is situated, according
to the value thereof, as near as may be, and forthwith shall
certify to the county commission of such county the values so
apportioned. The Clerk of the County Commission shall forthwith
certify such values to the school district and to the several
municipalities, respectively, in such county.
Inasmuch as there was litigation challenging the long-term apportionment method consistently used by the State Auditor under
the provisions of this section by which distribution was made of
the ad valorem tax values of the operable properties and assets of
public service businesses attributable to more than one county, and
with the Legislature subsequently approving, codifying and ordering
the continuance of such method of apportionment; and inasmuch as
the Legislature having changed such apportionment method and having
vested the authority to accomplish such and to issue assessment
under this article through actions of the State Tax Commissioner
rather than assessment by the Board of Public Works and
apportionment by the State Auditor, pursuant to chapter one hundred
fifty-nine, acts of the Legislature, regular session, one thousand
nine hundred eighty-five; and in light of the Legislature being
unaware of the dramatic shifting of valuations among counties as a
result of application or use of such new apportionment method and
thus desiring to return to the former method of apportionment and
that the same be performed by the State Auditor, as formerly and
that final assessment activity, as such, and hearings in respect
thereof be performed by the Board of Public Works, as formerly;
therefore, the Legislature finds and determines that apportionment
and distribution of ad valorem tax valuations hereunder should and
are to be performed by the State Auditor promptly and for current
periods and on the basis of the above-mentioned long-term
apportionment method used consistently by the State Auditor and with the valuations as determined by the application of such
apportionment method to be certified forthwith to the county
commissions. Specifically, as to the true and actual values of the
property of public service businesses reported on their tax returns
required to be filed by the first day of May, one thousand nine
hundred eighty-five and as thereafter determined by tentative
assessment and final assessment by the Tax Commissioner or by court
decision for tax fiscal year one thousand nine hundred eighty-six,
the State Auditor shall, by the first day of March, one thousand
nine hundred eighty-six, or as soon as may be practicable,
apportion and distribute such values, as required, to the
respective levying bodies and on the basis of his
or her using the
long-term, consistent apportionment method of his
or her office as
long engaged in and applied under the provisions of this section
and article.
The foregoing notwithstanding, this section shall not
apply to or be in effect for any year subsequent to the year in
which the voters ratify the Fair Taxation Amendment to the
Constitution of this state.
§11-6-14. Certification of levies to Auditor.
The clerk of the county
court commission of every county in
which any property lies which was so assessed shall, within thirty
days after the county and district levies are laid by such court,
certify to the Auditor the amount levied upon each one hundred
dollars' value of the property of each class in the county for county purposes, and on each one hundred dollars of the value of
the property of each class in each magisterial district for the
district purposes. It shall be the duty of the Secretary of the
Board of Education of every school district and independent
district in which any part of the property lies, within thirty days
after the levies are laid therein for free school and building
purposes, or either, to certify to the Auditor the amount so levied
on each one hundred dollars' value of the property of each class
therein for each of such purposes; and it shall be the duty of the
recorder, clerk or other recording officer of every municipal
corporation in which any part of the property lies, within the same
time, after levies are laid therein for any of the purposes
authorized by law, to certify to the Auditor the amount levied upon
each one hundred dollars' value of the property of each class
therein for each and every purpose.
The foregoing notwithstanding,
this section shall not apply to or be in effect for any year
subsequent to the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state.
§11-6-15. Failure of officers to perform duties as to property of
public service corporations.
Any clerk of a county
court commission, secretary of the board
of education, or recorder, clerk or other recording officer of a
municipal corporation, who shall fail to perform any of the duties
herein required of him
or her shall be guilty of a misdemeanor and, upon conviction thereof, fined not less than one hundred nor more
than five hundred dollars. In case of the failure of any
such
officers to furnish to the Auditor the certificate herein required,
the Auditor may obtain the rate of taxation for any of
such the
purposes from the copies of the land books on file in his
or her
office, if the same be found in
such the books, if not, in such
other way or manner as he
or she may
deem consider necessary or
proper for the purpose.
The foregoing notwithstanding, this
section shall not apply to or be in effect for any year subsequent
to the year in which the voters notify the Fair Taxation Amendment
to the Constitution of this state.
§11-6-18. Payment of assessment by owner or operator.
The Auditor shall, as soon as possible after such assessment
is completed, make out and transmit by mail or otherwise, to such
owner or operator, a statement of all taxes and levies so charged,
and it shall be the duty of such owner or operator, so assessed and
charged, to pay one half of the amount of such taxes and levies
into the treasury of the state by the first day of September and
the remaining one-half by the first day of the following March,
subject to a deduction of two and one-half per centum if the taxes
be paid on or before the date due. If such owner or operator fail
to pay such taxes and levies when due, interest thereon at the rate
of nine per centum per annum until paid shall be added, and the
Auditor shall certify, after the date the second installment is due, to the sheriff of each county, the amount of such taxes and
levies assessed within his
or her county; and it shall be the duty
of every sheriff to collect and account for such taxes and levies
in the same manner as other taxes are levied or collected and
accounted for by him
or her. The payment of such taxes and levies
by any such owner or operator shall not prejudice or affect the
right of such owner or operator to obtain relief against the
assessment or valuation of its property in proceedings now pending
or hereafter brought under the provisions of section twelve of this
article, or in any suit, action or proceeding in which such relief
may be obtainable; and if under the provisions of said section
twelve or in any suit, action or proceeding, it be ascertained that
the assessment or valuation of the property of such owner or
operator is too high and the same is accordingly corrected, it
shall be the duty of the Auditor of the state to issue to the owner
or operator a certificate showing the amount of taxes and levies
which have been overpaid, and such certificate shall be receivable
thereafter for the amount of such overpayment in payment of any
taxes and levies assessed against the property of such owner or
operator, its successors or assigns. It shall likewise be the duty
of said Auditor to certify to the county
courts commissions, school
districts and municipalities, the amounts of the respective
overpayments distributable to such counties, school districts and
municipalities. All moneys received by the Auditor under the provisions of this section shall be transmitted to the several
counties within twenty days from receipt thereof:
Provided, That
effective on the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state, the last two sentences of this
section next preceding this proviso shall cease to be of force and
effect and no such certification of amounts or payment of moneys by
the Auditor to the counties, school districts and municipalities
shall then or thereafter be made.
§11-6-19. Accounting by sheriff for district and municipal taxes
from public service corporations.
When the district and independent school district taxes and
levies are collected by the sheriff, he
or she shall account for
and pay the same as treasurer of such district. When such taxes
and levies due to a municipal corporation are collected by the
sheriff he
or she shall pay the same to the proper collecting
officer, or treasurer of such municipal corporation, or otherwise,
as the council or other proper authority thereof may direct.
The
foregoing notwithstanding, this section shall not apply to or be in
effect for any year subsequent to the year in which the voters
ratify the Fair Taxation Amendment to the Constitution of this
state.
§11-6-20. No release of taxes assessed against such corporations.
Neither the county
court commission of any county, nor any board of education, nor the municipal authorities of any
incorporated town, shall have jurisdiction, power or authority, by
compromise or otherwise, to remit or release any portion of the
taxes so assessed upon the property of any such owner or operator,
and when such taxes or levies are certified to the sheriff of any
county for collection, as aforesaid, it shall be his
or her duty to
collect the whole thereof, regardless of any order or direction of
any such county
court commission, board of education or municipal
authority to the contrary; and, if he
or she fail to do so, he
or
she and his
or her sureties in his
or her official bond shall,
unless he
or she be restrained or prohibited from so doing by legal
process from some court having jurisdiction to issue the same, be
liable
thereof therefor for such taxes and levies he
or she may so
fail to collect, if he
or she could have collected the same by the
use of due diligence. Any member of the county
court commission or
board of education, or of the council of a municipal corporation,
who shall vote to remit or release any part of the taxes, so
assessed on the property of any such owner or operator, shall be
guilty of a misdemeanor and fined five hundred dollars, and shall
be removed from his
or her office by the court by which the
judgment of such fine is rendered, in addition to such fine.
The
foregoing notwithstanding, this section shall not apply or be in
effect for any year subsequent to the year in which the voters
ratify the Fair Taxation Amendment to the Constitution of this state.
§11-6-21. Accounting for levies against public service
corporations.
When such taxes and levies are paid into the treasury, as
herein provided, the Auditor shall account to the sheriff of each
of the counties, to which any sum so paid in for county levies
belongs, for the amount due such county, and may arrange the same
with such sheriff in any settlement for state taxes in such a way
as may be most convenient; and the sheriff shall account to the
county
court commission of his
or her county for the amount so
received by him
or her, in the same manner as for other county
levies. The amount so paid for each district and independent
school district shall be added to the distributable share of the
school fund payable to such district, and shall be paid upon the
requisition of the county superintendent of free schools in like
manner as other school moneys are paid.
The foregoing
notwithstanding, this section shall not apply or be in effect for
any year subsequent to the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state.
§11-6-22. Certification by Auditor of amount chargeable to
sheriff from levies against public service
corporations; payment of amount due municipality.
The Auditor shall certify to the county
court commission and
the county superintendent of schools of every such county, on or before the first day of February in each year, the respective
amounts with which the sheriff thereof is chargeable on account of
the various levies upon the property of such owner or operator.
The amount so paid in for each municipal corporation shall, as soon
as received by the Auditor, be paid over to the sheriff, or the
treasurer of such municipal corporation, or to such other officer
of the municipality as the council may designate, and the Auditor
shall report such payment to the council. But the failure of the
clerk of any county
court commission, or the secretary of any board
of education, or the proper officer of any municipal corporation,
to certify the levies to the Auditor within the time herein
prescribed shall not invalidate or prevent the assessment required
by this article, but the Auditor shall make the assessment and
proceed to collect or certify the same to the sheriff as soon as
practicable after he
or she shall have obtained the information
necessary to make such assessment.
The foregoing notwithstanding,
this section shall not apply or be in effect for any year
subsequent to the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state.
§11-6-23. Lien of taxes; notice; collection by suit.
The amount of taxes and levies assessed under this article
shall constitute a debt due the state or county, district or
municipal corporation entitled thereto, and shall be a lien on all
of the property and assets of the taxpayer within the state. The lien shall attach as of the thirty-first day of December following
the commencement of the assessment year and shall be prior to all
other liens and charges. The Auditor shall, between the first and
fifteenth day of May of each year, prepare a list of the taxpayers
delinquent in the payment of such taxes and levies, setting forth
their respective addresses and the amount of state, county,
district and municipal taxes due from each, which said list shall
be certified by the Auditor to the Board of Public Works and filed
in the office of the Secretary of State. The Secretary of State
shall preserve the list in his
or her office, and a certificate
from him
or her that any taxpayer mentioned in such list is
delinquent in the amount of taxes assessed under this article shall
be prima facie evidence thereof. Within ten days after the filing
of such list, the Secretary of State shall give written notice of
such delinquency by registered mail to each of such delinquent
taxpayers at his,
her or its, last known post office address; and
upon the failure of any such delinquent taxpayer to pay said taxes
within thirty days from the mailing of such notice, it shall be the
duty of the Attorney General to enforce the collection of such
taxes and levies, and for that purpose he
or she may distrain upon
any personal property of such delinquent taxpayer, or a sufficient
amount thereof to satisfy said taxes, including accrued interest,
penalties and costs.
The foregoing notwithstanding, effective on the first day of January of the year following the year in which the voters ratify
the Fair Taxation Amendment to the Constitution of this state, the
taxes and levies assessed under this article shall not constitute
a debt due any county, district or municipality of this state and
then and thereafter such taxes and levies shall only be due to be
paid to the state.
The Attorney General may also enforce the lien created by this
section on the real estate of such delinquent taxpayer by
instituting a suit, or suits, in equity in the circuit court of
Kanawha County, in the name of the state, in which such delinquent
taxpayers shall be made defendants. In the bill filed in any such
suit it shall be sufficient to allege that the defendant or
defendants have failed to pay the taxes hereunder and that each of
them justly owes the amount of property taxes, levies and penalties
Stated therein, which amount shall be computed up to the first day
of the month in which the bill was filed. No such defendant shall
plead that the Secretary of State failed to give notice as
prescribed by this section. If, upon the hearing of such suit, it
shall appear to the court that any defendant has failed to pay such
taxes and accrued penalties, the court shall enter a decree against
such defendant for the amount due, and if the decree be not paid
within ten days after made, the court shall enter a decree
directing a sale of the real estate subject to said lien, or so
much thereof as may be necessary to satisfy said taxes, including interest, penalties and costs. When two or more taxpayers are
included in one suit, the court shall apportion the cost thereof
among them as it may deem just.
ARTICLE 6D. ALTERNATIVE-FUEL MOTOR VEHICLE TAX CREDIT.
§11-6D-9. Prospective termination of credit; effective date.
(a)
Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no entitlement to any
credit under this article may result from, and no credit is
available to any taxpayer for, purchasing or converting an
alternative-fuel motor vehicle on or after the effective date of
this section.
(b)
Preservation of economic benefit of previously earned
credits for persons engaged in business. -- Notwithstanding the
provisions of subsection (a) of this section, any person subject to
the tax imposed under article twenty-eight of this chapter and who
has gained entitlement to the credit provided in this article prior
to the effective date of this section shall be allowed a credit
against the tax imposed under article twenty-eight of this chapter
in an amount and for the tax year or years that will secure for
such natural person an actual economic benefit equal in amount to
the economic benefit he, she or it would have received by virtue of
the credit provided in this article had the provisions of article
twenty-one or article twenty-four applied to the tax year or years.
(c)
Preservation of economic benefit of previously earned credits for persons not engaged in business. -- Notwithstanding the
provisions of subsection (a) of this section, any natural person
not subject to the tax imposed under article twenty-eight of this
chapter who has gained entitlement to the credit provided in this
article prior to the effective date of this section shall be
allowed a credit against the tax imposed under article twenty-one-a
of this chapter in an amount and for the tax year or years that
will secure for such natural person an actual economic benefit
equal in amount to the economic benefit he or she would have
received by virtue of the credit provided in this article had the
provisions of article twenty-one of this code applied to the tax
year or years.
(d)
Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of
this state which, among other things, prospectively repeals certain
tax credits provided in this code.
ARTICLE 6F. SPECIAL METHOD FOR APPRAISING QUALIFIED CAPITAL
ADDITIONS TO MANUFACTURING FACILITIES.
§11-6F-7. Prospective termination of special method; effective
date.
(a)
Prospective termination of special method. -- Notwithstanding any other provision of this code to the contrary,
for tax years beginning on and after the effective date of this
section the special valuation method described in this article
shall not apply to any qualified capital addition to a
manufacturing facility and the use of the special valuation method
described in this article shall not be available to any taxpayer.
(b)
Preservation of economic benefit of previously established
qualified capital additions. -- Notwithstanding the provisions of
subsection (a) of this section, any person subject to the tax
imposed under article twenty-eight of this chapter who has placed
in service or use a qualified capital addition to a manufacturing
facility as provided in this article prior to the effective date of
this section shall be allowed a credit against the tax imposed
under article twenty-eight of this chapter in an amount and for the
tax year or years that will secure for such natural person an
actual economic benefit equal in amount to the economic benefit he
or she would have received by virtue of the application of the
special valuation method described in this article had the
provisions of this article applied to the tax year or years.
(c)
Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the year following the
year in which the voters ratify the Fair Taxation Amendment to the Constitution of this state which, among other things, prospectively
repeals the special valuation method provided in this article.
ARTICLE 8. LEVIES.
§11-8-1a. Declarations of voters' intent in ratifying the Fair
Taxation Amendment.
Whereas, in order for the changes in this article to become
operative and in effect, the voters of this state shall have
ratified the Fair Taxation Amendment; and
Whereas, to confirm and clarify the voters' intent upon
ratifying the Fair Taxation Amendment, the Legislature has,
concurrent with the adoption of the joint resolution placing the
Fair Taxation Amendment on the ballot, also enacted the Fair Tax
Act of 2003 implementing, upon its ratification, the Fair Taxation
Amendment; and
Whereas, among the objects and intended effects of the Fair
Taxation Amendment were the improved flexibility of local
government units to raise, in a fair, efficient and effective
manner, revenues sufficient to provide for the necessary public
services the voters expect and demand of them; and
Whereas, also among the objects and intended effects of the
Fair Taxation Amendment were the adequate, equitable and effective
funding of public education to the end that the Legislature would
provide for a thorough and efficient system of public schools
throughout the state; and
Whereas, also among the objects and intended effects of the
Fair Taxation Amendment was the repeal of the ad valorem taxation
of tangible personal property because the imposition of such
taxation on motor vehicles in this rural State is regressive as its
citizens depend on such motor vehicles to travel to gainful
employment and to gain access to health care and other critical
public services; and
Whereas, the imposition of ad valorem taxation on tangible
personal property used in business also makes this state highly
uncompetitive in attracting the capital investment needed to
provide gainful employment for its citizens and a growing tax base
for support of important public services including education,
health care and safety; therefore, the Legislature doth find and
declare:
That the provisions of this article hereinafter contained, as
amended by the Fair Tax Act of 2003, are as it verily believes
fully with the spirit of the Fair Taxation Amendment and are
reasonable and necessary to honor the intent of the voters in
ratifying it with respect to objects hereinabove stated.
§11-8-2a. Legislative findings with respect to circumstances
giving rise to the Fair Taxation Amendment.
The Legislature, having carefully studied the tax structure of
the state and of its political subdivisions, finds:
(1) That if county commissions and municipalities are to provide the residents of their jurisdictions with the level of
public services they expect and demand, such local government units
must have more flexibility in raising revenue than has heretofore
been available to them.
(2) That the ad valorem taxation of tangible personal property
in this rural state is both regressive and undermines the
competitiveness of this state in attracting the investment of
capital and the creation of jobs.
(3) That reliance on the ad valorem property tax to fund
public education dilutes the fairness and efficiency of the methods
the Legislature has adopted to provide for a thorough and efficient
system of public schools.
(4) That the amendments to this article, which become
operative and in effect upon the voters' ratification of the Fair
Taxation Amendment to this State's Constitution, will address the
adverse circumstances described in the foregoing findings.
§11-8-3a. Purposes of amendments to this article implementing
changes in ad valorem taxation upon ratification of
the Fair Taxation Amendment.
In order that the revenue to be derived from ad valorem taxes
to be assessed upon real property throughout the state may be
reallocated among the levying units of the state in a manner that
such allocation shall not exceed the maximum levies that may be
assessed upon each respective class of property as required by the Fair Taxation Amendment, and
In order, further, that the taxes to be assessed shall be
levied and collected with uniformity coextensive with the territory
of the taxing unit within which such taxes are to be levied and
collected as required by the Fair Taxation Amendment, without
interference by one taxing unit with the right of another such unit
to levy and collect for its purposes and within its territorial
extent, and
In order, further, that the taxing units throughout the state
may be furnished with the means of providing: (1) The sinking fund
and interest requirement of their now existing indebtedness; and
(2) the requirements of their respective current operating
expenses, all as a result of the changes in the tax structure of
this state as required by ratification of the Fair Taxation
Amendment, this article is hereby amended.
The purpose of the amendments to this article which become
operative and take effect upon the voters' ratification of the Fair
Taxation Amendment, is to provide the maximum rates for the levies
which may be laid by the several taxing units in the state as a
result of the provisions of the Fair Taxation Amendment and to
provide for the application of the revenues derived therefrom first
to the payment of legal contractual indebtedness and then to the
maintenance of indispensable governmental functions as herein
provided.
§11-8-4. Definition of taxing units.
(a) The taxing units of the state for the purposes of this
article are declared to be: (1) The state; (2) the county, for all
county purposes including indebtedness other than school
indebtedness; (3) present school districts for
current supplemental
local option school purposes; (4) school districts existing prior
to the twenty-second day of May, one thousand nine hundred
thirty-three, for school debt service purposes; (5) magisterial and
other road districts for road and other debt service purposes other
than county road debts; (6) other specially created taxing
districts for indebtedness existing at the time of the adoption of
the Tax Limitation Amendment;
and (7) municipalities for municipal
purposes including municipal debt service purposes.
(b) Notwithstanding the date of enactment of the act of the
Legislature amending this section in the year two thousand four
those amendments shall not become operational and shall have no
force and effect until the first year following the year in which
the voters ratify the Fair Taxation Amendment to the Constitution
of this state requiring changes in this article.
§11-8-5. Classification of property for levy purposes.
(a) For the purpose of levies, property shall be classified as
follows:
Class I. All
tangible personal real property
employed
exclusively in agriculture, including horticulture and grazing;
All products of agriculture (including livestock) while owned
by the producer;
All notes, bonds, bills and accounts receivable, stocks and
any other intangible personal property; of public service
businesses.
Notwithstanding the date of enactment of the act of the
Legislature amending this section in the year two thousand four
those amendments shall not become operational and shall have no
force and effect until the first year following the year in which
the voters ratify the Fair Taxation Amendment to the Constitution
of this state requiring changes in this article.
Class
II II-A. All
real property owned, used and occupied by
the owner exclusively for residential purposes
situated outside of
municipalities;
All farms, including land used for horticulture and grazing,
occupied and cultivated by their owners or bona fide tenants
situated outside of municipalities;
Class II-B. All real property owned, used and occupied by the
owner exclusively for residential purposes and situated inside of
municipalities;
All farms, including land uses for horticulture and grazing,
occupied and cultivated by their owners or bona fide tenants and
situated inside of municipalities;
Class III. All real
and personal property situated outside of municipalities, exclusive of Classes I and II;
Class IV. All real
and personal property situated inside of
municipalities, exclusive of Classes I and II.
(b) Notwithstanding the date of enactment of the act of the
Legislature amending this section in the year two thousand five
those amendments shall not become operational and shall have no
force and effect until the first year following the year in which
the voters ratify the Fair Taxation Amendment to the Constitution
of this state requiring changes in this article.
§11-8-6. Aggregate of taxes on different classifications; taxing
units authorized to lay levies.
The aggregate of taxes assessed in any one year by all levying
bodies, except as provided by section twenty-three of this article,
shall not exceed fifty cents on each one hundred dollars' assessed
valuation on Class I property; one dollar on Class II property; one
dollar fifty cents on Class III property; and two dollars on Class
IV property.
The fiscal bodies of the taxing units of the state are hereby
authorized to lay levies within the limitations of the "Tax
Limitation Amendment" for the purposes and subject to the several
maximums specified by sections six-a to seven, inclusive, of this
article.
The foregoing notwithstanding, commencing on the first
day of January of the first year following the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of this state the maximum rate of taxation on Class I property shall
be one dollar fifty cents on each one hundred dollars' assessed
valuation; one dollar on Classes II-A and II-B property; one dollar
fifty cents on Class III property and two dollars on Class IV
property.
§11-8-6a. Levies on each classification by board of public works.
(a) The State Board of Public Works shall levy as provided by
section eight as follows:
On Class I property, twenty-five hundredths of one cent; on
Class II property, five tenths of one cent; and on Classes III and
IV property, one cent.
The foregoing notwithstanding, commencing
on the first day of January of the first year following the year in
which the voters ratify the Fair Taxation Amendment to the
Constitution of this state, the levy of the State Board of Public
Works shall be as follows:
On Class I property, one hundred fifty hundredths cents; on
Class II-A and Class II-B property five and nine hundredths cents;
and on Classes III and IV property, ten and eighteen hundredths
cents.
Whenever the State Board of Public Works finds the revenues
from all sources have been or will be insufficient to meet the
requirements for interest and sinking funds on state road bonds,
said State Board of Public Works shall levy for said purposes as
provided by section eight, whatever rates of levy are necessary to meet the requirements for interest and sinking funds on state road
bonds issued prior to November eight, one thousand nine hundred
thirty-two, which rates of levy shall be as follows:
On Class I property, one cent; on Class II property, two
cents; and on Classes III and IV property, four cents, or multiples
thereof or in like ratio on all property subject to taxation in the
state.
§11-8-6b. Maximum levies on each classification by county
commissions; order of levies.
County
courts commissions are hereby authorized to lay not in
excess of the following maximum levies, for the purposes specified
and in the following order:
(1) With respect to the county as a whole for the payment of:
(a) Interest and sinking fund requirements for bonded indebtedness
incurred prior to the adoption of the Tax Limitation Amendment; and
(to the extent not so required); (b) other legally incurred
contractual indebtedness, not bonded, if any, incurred prior to the
adoption of the Tax Limitation Amendment, of the county as follows:
On Class I property, twenty-five one hundredths of one cent; on
Class II property, one half of one cent; and on Classes III and IV
property, one cent.
(2) With respect to a magisterial or special taxing district
for which the county court is required to lay the levy, for the
payment of: (a) Interest and sinking fund requirements for bonded indebtedness, incurred prior to the adoption of the Tax Limitation
Amendment; and (to the extent not so required); (b) other legally
incurred contractual indebtedness not bonded, if any, incurred
prior to the adoption of the Tax Limitation Amendment, as follows:
On Class I property, two and fifteen one hundredths cents; on Class
II property, four and three-tenths cents; and on Classes III and IV
property, eight and six-tenths cents.
(3) For general county current expense as follows: On Class
I property, eleven and nine-tenth cents; on Class II property,
twenty-three and eight-tenths cents; and on Classes III and IV
property, forty-seven and six-tenths cents.
The foregoing
notwithstanding, commencing on the first day of January of the
first year following the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state, the maximum
levies for general county current expense shall be as follows: On
Class II-A property, sixty-nine and ninety-one hundredths cents; on
Class II-B property, fifty-six and fourteen hundredths cents; on
Class III property, one hundred thirty-nine and eighty-two
hundredths cents; and on Class IV property, one hundred twelve and
twenty-eight hundredths cents. But in a county where the total
assessed valuation of all classes of property is less than six
million dollars, the county
court commission may, with the prior
written approval of the Tax Commissioner, exceed the rates of levy
for general county current expense by not more than twenty-five percent of the rates specified:
Provided, however, That if the
rates of levy under paragraph (3) of this section are not required,
in whole or in part, for the purpose for which they are allocated,
the county
court commission may, with the prior written approval of
the State Tax Commissioner, surrender to the county board of
education such unused parts of the authorized rates of levy as
provided herein.
§11-8-6c. Maximum levies on each classification by county boards
of education; order of levy; exceeding levy for
school bond issues.
County boards of education are hereby authorized to lay not in
excess of the following maximum levies, for the purposes specified
and in the following order:
(1) With respect to a magisterial, independent or other school
district existing in a county prior to
the twenty-second
day of
May, one thousand nine hundred thirty-three, or any special taxing
district for which the board of education is required to lay the
levy, for the payment of: (a) Interest and sinking fund
requirements for bonded indebtedness incurred prior to the adoption
of the Tax Limitation Amendment; and (to the extent not so
required); (b) other legally incurred contractual indebtedness not
bonded, if any, incurred prior to the adoption of the Tax
Limitation Amendment as follows: On Class I property, thirty-five
one hundredths of one cent; on Class II property, seven tenths of one cent; and on Classes III and IV property, one and four-tenths
cents.
(2) For either or both of: (a) The permanent improvement
fund; and (b) the payment of interest and sinking fund requirements
for bonded indebtedness incurred subsequent to the adoption of the
Tax Limitation Amendment, as follows: On Class I property, one and
five-tenths cents; on Class II property, three cents; and on
Classes III and IV property, six cents.
(3) For the general current expenses of schools as follows:
On Class I property, twenty-one and one-tenth cents; on Class II
property, forty-two and
two ten-tenths cents; and on Classes III
and IV property, eighty-four and four-tenths cents. But if the Tax
Commissioner has approved the levy of an additional amount for the
general current expenses of the county, as authorized by section
six-b, subsection three, the amount of the levy authorized for
boards of education by this subsection shall be reduced by the Tax
Commissioner to that extent.
If the rates of levy under paragraph (2) above are not
required, in whole or in part, for the purposes for which they are
allocated by this section, the county board of education may, with
the prior written approval of the State Board of School Finance,
created by section three, article nine-b, chapter eighteen of the
code, as amended, lay such rates of levy or portion thereof not so
required, for the general current expenses of schools:
Provided, however, That if the rates of levy under paragraph (3) of this
section are not sufficient for the purposes for which they are
allocated, the county board of education may, with the prior
written approval of the State Tax Commissioner, lay such additional
rates of levy, or portion thereof, as are surrendered by the county
court commission under paragraph (3), section six-b of this
article:
Provided, further however, That a county board of
education shall be required to levy outside the levy rates herein
above provided sufficient to pay the principal and interest
requirements on bonds now or hereafter issued by any school
district not exceeding in the aggregate five per centum of the
assessed value of all taxable property in the county school
district, to be ascertained by the last assessment for state and
county taxes, previous to the incurring of such indebtedness, in
the manner provided by the "Better Schools Amendment", as ratified.
The foregoing notwithstanding, effective on the first day of
January of the year following the year in which the voters ratify
the Fair Taxation Amendment to the Constitution of this state,
county boards of education shall not, then or thereafter, have the
authority to lay regular levies for general current expenses of the
schools as otherwise provided in subdivision (2) of this section
and in the unnumbered paragraph that follows.
§11-8-6d. Maximum levies on each classification by municipalities;
order of levy.
The governing body of a municipality is hereby authorized to
lay not in excess of the following maximum levies, for the purposes
specified, and in the following order:
(1) For the payment of: (a) Principal and interest upon
bonded indebtedness incurred prior to the adoption of the Tax
Limitation Amendment; and to the extent not so required; (b) other
legally incurred contractual indebtedness, not bonded, if any,
incurred prior to the adoption of the Tax Limitation Amendment, as
follows: On Class I property, one and five tenths cents; on Class
II property, three cents; and on Class IV property, six cents.
(2) For general current expense purposes, as follows: On
Class I property, eleven cents; on Class II property, twenty-two
cents; and on Class IV property, forty-four cents.
The foregoing
notwithstanding, commencing on the first day of January of the
first year following the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state, the maximum
rates of levy that municipalities may lay for general current
expenses shall then and thereafter be as follows: On Class II-B
property, thirty-eight and seventy-seven hundredths cents; and on
Class IV property, seventy-seven and fifty-four hundredths cents.
§11-8-6e. Effect on regular levy rate when appraisal results in
tax increase; public hearings
.
(a) Notwithstanding any other provision of law, where any
annual appraisal, triennial appraisal or general valuation of property would produce an assessment that would cause an increase
of one percent or more in the total projected property tax revenues
that would be realized were the then current regular levy rates by
the county commission and the municipalities to be imposed, the
rate of levy shall be reduced proportionately as between the county
commission and the municipalities and for all classes of property
for the forthcoming tax year so as to cause such rate of levy to
produce no more than one hundred one percent of the previous year's
projected property tax revenues from extending the county
commission and municipality levy rates, unless there has been
compliance with subsection (c) of this section.
An additional appraisal or valuation due to new construction
or improvements to existing real property, including beginning
recovery of natural resources, and newly acquired personal property
shall not be an annual appraisal or general valuation within the
meaning of this section, nor shall the assessed value of such
improvements be included in calculating the new tax levy for
purposes of this section. Special levies shall not be included in
the reduced levy calculation set forth in subsection (b) of this
section.
(b) The reduced rates of levy shall be calculated in the
following manner:
(1) The total assessed value of each class of property as it
is defined by section five, article eight of this chapter for the assessment period just concluded shall be reduced by deducting the
total assessed value of newly created properties not assessed in
the previous year's tax book for each class of property;
(2) The resulting net assessed value of by Class I property
shall be multiplied by .01; the value of Class II property by .02;
and the values of Class III and IV, each by .04;
(3) Total the current year's property tax revenue resulting
from regular levies for each county commission and municipality and
multiply the resulting sum by one hundred one percent:
Provided,
That the one hundred one percent figure shall be increased by the
amount the county's or municipality's increased levy provided
for
in subsection (b), section eight, article one-c of this chapter;
(4) Divide the total regular levy tax revenues, thus increased
in subdivision (3), above, by the total weighted net assessed value
as calculated in
paragraph two subdivision (2) of this section and
multiply the resulting product by one hundred; the resulting number
is the Class I regular levy rate , Stated as cents-per-one hundred
dollars of assessed value;
(5) The Class II rate is two times the Class I rate; Classes
III and IV, four times the Class I rate as calculated in the
preceding subdivision.
The foregoing notwithstanding, commencing on the first day of
January of the first year following the year in which the voters
ratify the Fair Taxation Amendment to the Constitution of this state, subdivision (2) of this subsection shall, then and
thereafter, provide that Class I property shall not be included but
that the net assessed value of Class II-A property and Class II-B
property determined under subdivision (1) shall be multiplied by
.02; and the values of Class III and IV, each by .04; and
subdivision (4) of this subsection shall, then and thereafter,
provide that the resulting number is the Class II-A and Class II-B
regular levy rate, stated as cents-per-hundred dollars of assessed
value, instead of that the Class I regular levy rate; and
subdivision (5) shall then and thereafter provide that the Class
III and IV rates are two times the Class II-A and Class II-B rates
calculated in subdivision (4), instead of that the Class II rate is
two times the Class I rate or that the Classes III and IV rates are
four times the Class I rate.
(c) The governing body of a county or municipality may, after
conducting a public hearing, which may be held at the same time and
place as the annual budget hearing, increase the rate above the
reduced rate required in this section if any such increase is
deemed to be necessary by such governing body:
Provided, That in
no event shall the governing body of a county or municipality
increase the rate above the reduced rate required by subsection (b)
of this section for any single year in a manner which would cause
total property tax revenues accruing to the governing body of the
county or municipality, excepting additional revenue attributable to assessed valuations of newly created properties not assessed in
the previous year's tax book for each class of property, to exceed
by more than ten percent those property tax revenues received by
the governing body of the county or municipality for the next
preceding year:
Provided, however, That this provision shall not
restrict the ability of a county or municipality to enact excess
levies as authorized under existing statutory or Constitutional
provisions.
Notice of the public hearing and the meeting in which the
levy rate shall be on the agenda shall be given at least seven days
before the date for each public hearing by the publication of a
notice in at least one newspaper of general circulation in such
county or municipality:
Provided, That a Class IV town or village
as defined in section two, article one, chapter eight of this code,
in lieu of the publication notice required by this subsection, may
post no less than four notices of each public hearing, which posted
notices shall contain the information required by the publication
notice and which shall be in available, visible locations including
the town hall. The notice shall be at least the size of one-eighth
page of a standard size newspaper or one-fourth page of a tabloid
size newspaper, and the headline in the advertisement shall be in
a type no smaller than twenty-four point. The publication notice
shall be placed outside that portion, if any, of the newspaper
reserved for legal notices and classified advertisements and shall also be published as a Class II-0 legal advertisement in accordance
with the provisions of article three, chapter fifty-nine of this
code. The publication area is the county. The notice shall be in
the following form and contain the following information, in
addition to such other information as the local governing body may
elect to include:
NOTICE OF PROPOSED TAX INCREASE
The (name of the county or municipality) proposes to increase
property tax levies.
1. Appraisal/Assessment Increase: total assessed value of
property, excluding additional assessments due to new or improved
property, exceeds last year's total assessed value of property by
____________ percent.
2. Lowered Rate Necessary to Offset Increased Assessment:
The tax rate which would levy the same amount of property tax as
last year, when multiplied by the new total assessed value of
property with the exclusions mentioned above, would be
$____________ per $100 of assessed value for Class I property,
$___________ per $100 of assessed value for Class II property,
$___________ per $100 of assessed value for Class III and
$___________ per $100 of assessed value for Class IV property.
These rates will be known as the "lowered tax rates."
The foregoing notwithstanding, commencing on the first day of
January of the first year following the year in which the voters ratify the Fair Taxation Amendment to the Constitution of this
state, this item numbered 2. shall state that the new total
assessed value of property would be $ per $100 of assessed value
for Class II-A property, $ Per $100 of assessed value for Class
II-B property, $ per $100 of assessed value for Class III and $ per
$100 of assessed value for Class IV property.
3. Effective Rate Increase: The (name of the county or
municipality) proposes to adopt a tax rate of $___________ per $100
of assessed value for Class I property, $________ per $100 of
assessed value of Class II property, $______________ per $100 of
assessed value of Class III property and $_________ per $100 of
assessed value of Class IV property. The difference between the
lowered tax rates and the proposed tax rates would be $___________
per $100, or ______ percent for Class I; $________ or ________
percent for Class II; $_________ or ________ percent for Class III;
and $_________ or _______ percent for Class IV. These differences
will be known as the "effective tax rate increases."
The foregoing notwithstanding, commencing on the first day of
January of the first year following the year in which the voters
ratify the Fair Taxation Amendment to the Constitution of this
state, this item numbered (3) shall state that the county or
municipality proposes to adopt a tax rate of per $100 of assessed
value for Class II-A property, $ Per $100 of assessed value for
Class II-B property, $ per $100 of assessed value for Class III property and $ per $100 of assessed value for Class IV property;
and that the difference between the lowered tax rates and the
proposed rates would be $ per $100, or percent for Class II-A; $
Per $100, or percent for Class II-B; $ per $100, or percent for
Class III; and $ per $100, or percent for Class IV.
Individual property taxes may, however, increase at a
percentage greater than or less than the above percentage.
4. Revenue produced last year: $___________.
5. Revenue projected under the effective rate increases:
$________.
6. Revenue projected from new property or improvements:
$_________.
7. General areas in which new revenue is to be allocated:
__________.
A public hearing on the increases will be held on (date and
time) at (meeting place). A decision regarding the rate increase
will be made on (date and time) at (meeting place).
(d) All hearings are open to the public. The governing body
shall permit persons desiring to be heard an opportunity to present
oral testimony within such reasonable time limits as are determined
by the governing body.
(e) This section shall be effective as to any regular levy
rate imposed by the county commission or a municipality for taxes
due and payable on or after the first day of July, one thousand nine hundred ninety-one. If any provision of this section is held
invalid, such invalidity shall not affect other provisions or
applications of this section which can be given effect without the
invalid provision or its application and to this end the provisions
of this section are declared to be severable.
§11-8-6f. Effect on regular school board levy rate when appraisal
results in tax increase; creation and implementation
of growth county school facilities act; creation of
growth county school facilities act fund.
(a) Notwithstanding any other provision of law, where any
annual appraisal, triennial appraisal or general valuation of
property would produce a Statewide aggregate assessment that would
cause an increase of one percent or more in the total property tax
revenues that would be realized were the then current regular levy
rates of the county boards of education to be imposed, the rate of
levy for county boards of education shall be reduced uniformly
Statewide and proportionately for all classes of property for the
forthcoming tax year so as to cause the rate of levy to produce no
more than one hundred one percent of the previous year's projected
Statewide aggregate property tax revenues from extending the county
board of education levy rate, unless subsection (b) of this section
is complied with. The reduced rates of levy shall be calculated in
the following manner: (1) The total assessed value of each class
of property as it is defined by section five, article eight of this chapter for the assessment period just concluded shall be reduced
by deducting the total assessed value of newly created properties
not assessed in the previous year's tax book for each class of
property; (2) the resulting net assessed value of Class I property
shall be multiplied by .01; the value of Class II by .02; and the
values of Class III and IV, each by .04; (3) total the current
year's property tax revenue resulting from regular levies for the
boards of education throughout this state and multiply the
resulting sum by one hundred one percent:
Provided, That the one
hundred one percent figure shall be increased by the amount the
boards of educations' increased levy provided
for in subsection
(b), section eight, article one-c of this chapter; (4) divide the
total regular levy tax revenues, thus increased in subdivision (3),
of this subsection, by the total weighted net assessed value as
calculated in subdivision (2) of this subsection and multiply the
resulting product by one hundred; the resulting number is the Class
I regular levy rate, Stated as cents-per-one hundred dollars of
assessed value; and (5) the Class II rate is two times the Class I
rate; Classes III and IV, four times the Class I rate as calculated
in the preceding subdivision.
An additional appraisal or valuation due to new construction
or improvements, including beginning recovery of natural resources,
to existing real property or newly acquired personal property shall
not be an annual appraisal or general valuation within the meaning of this section, nor shall the assessed value of the improvements
be included in calculating the new tax levy for purposes of this
section. Special levies shall not be included in any calculations
under this section.
(b) After conducting a public hearing, the Legislature may, by
act, increase the rate above the reduced rate required in
subsection (a) of this section if an increase is determined to be
necessary.
(c)
Growth county school facilities act. -- Legislative
findings. --
The Legislature finds and declares that there has been,
overall, a Statewide decline in enrollment in the public schools of
this state; due to this decline, most public schools have ample
space for students, teachers and administrators; however, some
counties of this state have experienced significant increases in
enrollment due to significant growth in those counties; that those
counties experiencing significant increases do not have adequate
facilities to accommodate students, teachers and administrators.
Therefore, the Legislature finds that county commissions in those
high-growth counties should have the authority to designate
revenues generated from the application of the regular school board
levy due to new construction or improvements placed in a growth
county school facilities act fund be used for school facilities in
those counties to promote the best interests of this State's students.
(1) For the purposes of this subsection, "growth county" means
any county that has experienced an increase in second month net
enrollment, excluding kindergarten students less than five years of
age without an individualized education program, of fifty or more
during any three of the last five years, as determined by the
Department of Education.
(2) The provisions of this subsection shall only apply to any
growth county, as defined in subdivision (1) of this subsection,
that, by resolution of its county board of education, chooses to
use the provisions of this subsection.
(3) For any growth county, as defined in subdivision (1) of
this subsection, that adopts a resolution choosing to use the
provisions of this subsection, pursuant to subdivision (2) of this
subsection, assessed values resulting from additional appraisal or
valuation due to new construction or improvements, including
beginning recovery of natural resources, to existing real property
or newly acquired personal property, shall be designated as new
property values and identified by the county assessor. The
Statewide regular school board levy rate as established by the
Legislature shall be applied to the assessed value designated as
new property values and the resulting property tax revenues
collected from application of the regular school board levy rate
shall be placed in a separate account, designated as the growth counties school facilities act fund. Revenues deposited in the
growth counties school facilities act fund shall be appropriated by
the county board of education for construction, maintenance or
repair of school facilities. Revenues in the fund may be carried
over for an indefinite length of time and may be used as matching
funds for the purpose of obtaining funds from the school building
authority or for the payment of bonded indebtedness incurred for
school facilities. Estimated school board revenues generated from
application of the regular school board levy rate to new property
values are not to be considered as local funds for purposes of the
computation of local share under the provisions of section eleven,
article nine-a, chapter eighteen of this code.
(d) This section, as amended during the legislative session in
the year two thousand four, shall be effective as to any regular
levy rate imposed for the county boards of education for taxes due
and payable on or after the first day of July, two thousand four.
If any provision of this section is held invalid, the invalidity
shall not affect other provisions or applications of this section
which can be given effect without the invalid provision or its
application and to this end the provisions of this section are
declared to be severable.
(e) This section shall not apply to or be in effect for any
year subsequent to the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state providing that the regular levy rate of the county boards of education shall be
zero.
§11-8-12. Levy estimate by Board of Education; certification and
publication.
(a) Each board of education shall, at the session provided
for
in section nine of this article, if the laying of a levy has been
authorized by the voters of the district under article nine of the
code, ascertain the condition of the fiscal affairs of the
district, and make a Statement setting forth:
(1) The amount due, and the amount that will become due and
collectible during the current fiscal year except from the levy of
taxes to be made for the year;
(2) The interest, sinking fund and amortization requirements
for the fiscal year of bonded indebtedness legally incurred upon a
vote of the people, as provided by law, by any school district
existing prior to
May the twenty-second
day of May, one thousand
nine hundred thirty-three, prior to the adoption of the tax
Limitation Amendment;
(3) Other contractual indebtedness not bonded, legally
incurred by any such school district existing prior to
May the
twenty-second
day of May, one thousand nine hundred thirty-three,
prior to the adoption of the Tax Limitation Amendment, owing by
such district;
(4) The amount to be levied for the permanent improvement fund;
(5) The total of all other expenditures to be paid out of the
receipts for the current fiscal year, with proper allowance for
delinquent taxes, exonerations and contingencies;
(6) The amount of such total to be raised by the levy of taxes
for the current fiscal year;
(7) The proposed rate of levy in cents on each one hundred
dollars' assessed valuation of each class of property;
(8) The separate and aggregate amounts of the assessed
valuation of real, personal, and public utility property within
each class.
The Secretary of the Board shall forward immediately a
certified copy of the statement to the Tax Commissioner and shall
publish the statement forthwith. The session shall then stand
adjourned until the third Tuesday in April, at which time it shall
reconvene.
(b) This section shall not apply to or be in effect for any
year subsequent to the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state providing that
the regular levy rate of the county boards of education shall be
zero.
§11-8-12a. Adjourned session of board of education to hear
objections to proposed levies; approval of
estimate and levy by Tax Commissioner; first levy for bonded and other indebtedness and indebtedness
not bonded, second for permanent improvement fund,
then for current expenses
.
(a) Each board of education when it reconvenes on the third
Tuesday in April shall proceed in a manner similar in all respects
to that provided
for in section ten-a of this article. The board
shall not finally enter any levy until it has been approved in
writing by the Tax Commissioner. After receiving the approval, the
board shall enter the Statement as approved in its record of
proceedings, together with the written approval:
Provided, That
for the fiscal year one thousand nine hundred ninety-three only,
each board of education may delay its final entry of the levy until
no later than the first Thursday in May, by which time each board
shall have entered the Statement as approved in its record of
proceedings, together with the written approval:
Provided,
however, That any delay by a county board of education in the entry
of its final levy pursuant to the provisions of this section in the
fiscal year one thousand nine hundred ninety-three and any action
taken prior to the effective date of this section that is not
inconsistent with the provisions of this section or other
applicable levy rate sections of this code are hereby ratified and
confirmed as having full force and effect.
The board shall levy as many cents per hundred dollars'
assessed valuation on each class of property in the county or in the area of a preexisting school district, as the case may be, as
will produce the amounts, according to the last assessment, shown
to be necessary by the Statement in the following order:
First, for the bonded debt and for the contractual debt not
bonded, if any, of any school district of the county existing prior
to
the twenty-second day of May, one thousand nine hundred
thirty-three, and incurred prior to the adoption of the Tax
Limitation Amendment;
Second, for the permanent improvement fund;
Third, for general current expenses.
The rates of levy for each purpose shall not exceed the
amounts fixed by section six-c unless another rate is authorized by
the Tax Commissioner or set by the Legislature in accordance with
this article. When less than the maximum levies are imposed, the
levies on each class of property shall be in the same proportions
as the maximums authorized.
(b) This section shall not apply to or be in effect for any
year subsequent to the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state providing that
the regular levy rate of the county boards of education shall be
zero.
§11-8-13. Certification of levy order to Tax Commissioner and
county superintendent; reports by superintendent of
levies; extension and collection of levies.
(a) Within three days after the Board of Education has laid
the levies, the Secretary of the Board shall forward to the county
superintendent and to the Tax Commissioner certified copies of the
orders laying levies and the rate of levy upon each class. Within
three days thereafter the county superintendent shall report the
rate of levy for each of the various classes and the total value of
real, personal, and public utility property in each class in every
district to the clerk of the county
court commission, the assessor,
the State Superintendent and the Auditor. The proper county
officers shall then extend on the property books the amount of
taxes levied. The sheriff shall collect and account for the taxes
as required by law.
(b) This section shall not apply to or be in effect for any
year subsequent to the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state providing that
the regular levy rate of the county boards of education shall be
zero.
§11-8-16. What order for election to increase levies to show; vote
required; amount and continuation of additional levy;
issuance of bonds.
(a) A local levying body may provide for an election to
increase the levies, by entering on its record of proceedings an
order setting forth:
(1) The purpose for which additional funds are needed;
(2) The amount for each purpose;
(3) The total amount needed;
(4) The separate and aggregate assessed valuation of each
class of taxable property within its jurisdiction;
(5) The proposed additional rate of levy in cents on each
class of property;
(6) The proposed number of years, not to exceed three, to
which the additional levy applies, except that in the case of
county boards of education the proposed number of years shall not
exceed five;
(7) The fact that the local levying body will or will not
issue bonds, as provided by this section, upon approval of the
proposed increased levy.
(b) The local levying body shall submit to the voters within
their political subdivision, the question of the additional levy at
either a general or special election. If at least sixty percent of
the voters cast their ballots in favor of the additional levy, the
county commission or municipality may impose the additional levy.
If at least a majority of voters cast their ballot in favor of the
additional levy, the county board of education may impose the
additional levy: Provided,
That any additional levy adopted by the
voters, including any additional levy adopted prior to the
effective date of this section, shall be the actual number of cents
per each one hundred dollars of value set forth in the ballot provision, which number shall not exceed the maximum amounts
prescribed in this section, regardless of the rate of regular levy
then or currently in effect, unless such rate of additional special
levy is reduced in accordance with the provisions of section six-g
of this article or otherwise changed in accordance with the
applicable ballot provisions. For county commissions, this levy
shall not exceed a rate greater than seven and fifteen hundredths
cents for each one hundred dollars of value for Class I properties,
and for Class II properties a rate greater than twice the rate for
Class I properties, and for Class III and IV properties a rate
greater than twice the rate for Class II properties.
The foregoing
sentence notwithstanding, commencing on the first day of January of
the first year following the year in which the voters ratify the
Fair Taxation Amendment to the Constitution of this state, the
maximum additional levy approved by the voters and laid by county
commissions shall not exceed a rate greater than fifty percent of
the regular levy rates provided in section six-b. For
municipalities, this levy shall not exceed a rate greater than six
and twenty-five hundredths cents for each one hundred dollars of
value for Class I properties, and for Class II properties a rate
greater than twice the rate for Class I properties, and for Class
III and IV properties a rate greater than twice the rate for Class
II properties. The foregoing sentence notwithstanding, commencing
on the first day of January of the first year following the year in which the voters ratify the Fair Taxation Amendment to the
Constitution of this state, the maximum additional levy approved by
the voters and laid by municipalities shall not exceed a rate
greater than fifty percent of the regular levy rate provided in
section six-d. For county boards of education, this levy shall not
exceed a rate greater than twenty-two and ninety-five hundredths
cents for each one hundred dollars of value for Class I properties,
and for Class II properties a rate greater than twice the rate for
Class I properties, and for Class III and IV properties a rate
greater than twice the rate for Class II properties. The foregoing
sentence notwithstanding, commencing on the first day of January of
the first year following the year in which the voters ratify the
Fair Taxation Amendment to the Constitution of this state, the
maximum additional levy approved by the voters and laid by the
county boards of education shall not exceed a rate greater than
forty-five and ninety hundredths cents for each one hundred dollars
of value for Class II-A and II-B properties, and for Class III and
IV properties a rate greater than twice the rate for Class II-A and
II-B properties.
Levies authorized by this section shall not continue for more
than three years in the case of county commissions and
municipalities and five years in the case of county boards of
education without resubmission to the voters.
Upon approval of an increased levy as provided by this section, a local levying body may immediately issue bonds in an
amount not exceeding the amount of the increased levy plus the
total interest thereon, but the term of the bonds shall not extend
beyond the period of the increased levy.
Insofar as they might concern the issuance of bonds as
provided for in this section, the provisions of sections three and
four, article one, chapter thirteen of this code shall not apply:
Provided, That nothing contained in this section shall conflict
with the provisions of Article X, Section 8 of the Constitution of
West Virginia.
§11-8-17. Special levy elections; notices; election officers;
conduct of election; supplies; canvass of returns;
form of ballot.
The local levying body shall publish a notice, calling the
election, as a Class II-O legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code,
and the publication area for such publication shall be the
territory in which the election is held. Such notice shall be so
published within fourteen consecutive days next preceding the
election. All the provisions of the law concerning general
elections shall apply so far as they are practicable, except as
follows: Where a special election is held, the local levying body,
having due regard to the minimum expense involved, shall determine
the number of election officials necessary to properly conduct said election, which number shall in no case be less than three
Commissioners and two clerks, and shall appoint the same and fix
and pay their compensation, but otherwise the election officials
shall be such as are appointed to serve with respect to the general
election held at the same time. The local levying body, however,
shall provide the election supplies necessary for such election and
shall canvass the returns thereof. A separate ballot shall be used
at a levy election held in connection with any other election.
The ballot shall be entitled:"Special election to authorize
additional levies for the year(s) ____________ and for the purpose
of _____________ according to the order of the __________________
entered on the ______ day of ________________."
The additional levy shall be on Class I property __________
cents; on Class II property ______________ cents; on Class III
property (if any) ______________ cents; on Class IV property (if
any) _____________ cents.
The foregoing sentence notwithstanding, commencing on the
first day of January of the first year following the year in which
the voters ratify the Fair Taxation Amendment to the Constitution
of this state, the notice shall provide that the additional levy
shall be on Class II-A property (if any) _______ cents; on Class
II-B property (if any) ................... cents; on Class III
property (if any) ______ cents; on Class IV property (if any)
______ cents.
§11-8-23a. Statement of fiscal body when levies not sufficient to
meet requirements of existing contractual
indebtedness due to adoption of "Fair Taxation
Amendment."
(a) When the entire apportionment of levies for the payment of
such contractual indebtedness existing at the time of the adoption
of the "Fair Taxation Amendment," together with the application to
such indebtedness of such part, if any, of the levies allocated for
current expenses and not required therefor and applied to such
indebtedness as herein above provided, are not sufficient to meet
the current requirements of principal and/or interest upon legally
existing contractual indebtedness, existing at the time of the
adoption of the "Fair Taxation Amendment" and remaining unpaid,
then the levying body shall prepare a Statement showing in detail:
(1) The items of expenditure upon which the estimate of
current expense is based;
(2) A detailed itemized Statement of:
(A) The bonded indebtedness, if any there be, existing prior
to the adoption of the "Fair Taxation Amendment," in whole or in
part, not provided by the levies hereinbefore authorized; and
(B) Other contractual indebtedness, not bonded, if any there
be, legally incurred prior to the adoption of the "Fair Taxation
Amendment," in whole or in part, not provided by the levies
hereinbefore authorized;
(3) The requirements of such bonded indebtedness not provided
by the levies hereinbefore authorized;
(4) The requirements of such other contractual indebtedness,
not bonded, not provided by the levies hereinbefore authorized;
(5) The separate and aggregate amounts of the real, personal,
and public utility properties in each class subject to taxation
within the taxing district; and
(6) The rates of levy in cents on each one hundred dollars
assessed valuation of each class of property necessary to produce
the amount required: (a) For such bonded indebtedness; and (b) for
such other contractual indebtedness not bonded, and not provided by
the levies hereinbefore authorized, and which rates of levies shall
be in the proportion of one cent on Class II-A and II-B property,
and two cents on Classes III and/or IV property.
(b) The recording officer of the fiscal body shall forthwith
forward a certified copy of this statement to the State Tax
Commissioner in the same manner and at the same time as required in
sections eleven, thirteen and fifteen of this article for the
regular levies imposed by the levying body, and notice of this
proposed levy shall be published at the same time and in the same
manner as required for other levies proposed by the fiscal body.
The Tax Commissioner, upon receipt of such estimate, shall proceed
to carefully examine and analyze the estimate for current expense
and determine what items, if any, may be reduced or eliminated therefrom. If the Tax Commissioner finds that any of such items,
in whole or in part, may be eliminated or reduced without impairing
the governmental functions of such fiscal body, he or she shall
require such fiscal body to so eliminate or reduce such estimate
until such estimate shall constitute only so much as may in the
opinion of the Tax Commissioner be indispensable to the orderly
discharge of the governmental functions of such fiscal body; and
such proportion of the levies for current expense as are
represented by such reductions may be applied by said fiscal body
to the increase of the levies of such fiscal body for contractual
indebtedness. The Tax Commissioner shall also carefully examine
the itemized list of contractual obligations for the payment of
which the levy under this section is proposed to be made, and shall
ascertain whether such obligations are in fact contractual; whether
the same were created prior to the adoption of the "Fair Taxation
Amendment," and whether or not, except for the levy proposed under
this section, the obligation thereof will be impaired. The Tax
Commissioner shall make a statement of his or her findings in
writing, and if such findings of the Tax Commissioner show that the
levies for current expense of such fiscal body are no more than are
indispensable to the orderly discharge of the governmental
functions of such fiscal body, and that except for the levies
proposed to be laid under this section, the obligation of valid
contracts incurred prior to the adoption of the "Fair Taxation Amendment" will be impaired, the fiscal body may then with the
approval of the Tax Commissioner lay such a levy on the several
classes of property in proportion to one cent on Class I property,
two cents on Class II property, and four cents on Classes III
and/or IV properties, which, together with the other levies
provided in this article, shall not exceed any Constitutional
limitations applicable thereto in effect immediately prior to the
time of the adoption of the "Tax Limitation Amendment," at the same
time and in the same manner as other levies in this article
provided for, and the proceeds thereof when collected, together
with the other levies for such contractual indebtedness herein
provided for, shall be held and kept separate and apart from all
other funds of said fiscal body and shall be used solely for the
purpose of paying such indebtedness.
§11-8-24. Petition for review of findings of Tax Commissioner and
levy order; notice of intention to file;
intervention; hearing and findings; appeal to Supreme
Court of Appeals; refund if liens found excessive;
recovery by action.
(a) Any taxpayer or other person legally interested in the
levy provided for by section twenty-three or section twenty-three-a
hereof, if aggrieved by the findings of the Tax Commissioner and
his or her approval of such levy, and by the laying of such levy by
the fiscal body, may have a review of the findings of the Tax Commissioner and the laying of such levy by the circuit court of
the county in which the greater part of such taxpayer's or other
person's property affected by such levy is situated, by presenting
to such circuit court, either in term or to the judge thereof in
vacation, within ten days after the entry of the order laying such
levy shall have been made by such fiscal body, his or her petition
for such review. Such taxpayer or other person shall give at least
five days' notice in writing of his or her intention to file such
petition to the Tax Commissioner, to the prosecuting attorney of
the county of the circuit court of the county in which said
petition will be presented, and to the presiding officer of the
fiscal body laying the levy. Any other person legally interested
in the laying or in the disaffirmance of the laying of the levy
provided for in the preceding section twenty-three or
twenty-three-a of this article, may, by petition in writing,
intervene in said hearing and be made a party thereto with any and
all rights of any other party therein and with any and all rights
of any litigant in a chancery cause, insofar as the principles
thereof be applicable, including the right of appeal as hereinafter
provided for. The circuit court or the judge thereof in vacation
shall, insofar as applicable, consider the petition as a bill in
equity, and the court or judge shall forthwith, either in term or
in vacation, proceed to consider such petition, the estimates and
levies, and the findings of the Tax Commissioner, and may hear and consider evidence on behalf of such taxpayer or other person, the
fiscal body laying the levy, and any other person interested in the
laying of such levy, relating to the necessity and propriety of
laying such levies under said section twenty-three or section
twenty-three-a, which evidence on the motion of any party appearing
therein shall be made a part of the record. Upon such hearing the
court or judge may affirm or disaffirm the findings of the Tax
Commissioner and the laying of the levy, or may make such
modification of such findings and such levies as to the court or
judge may appear proper. Whereupon, the levies shall be laid in
accordance with the findings of the court or judge as though such
findings had been made by the Tax Commissioner, under the
provisions of the said section twenty-three or section
twenty-three-a of this article as the case may be, hereof. An
appeal to the Supreme Court of Appeals of West Virginia from the
findings of the circuit court may be had by any party in interest
appearing in the hearing, in like manner, so far as applicable, as
in an equity cause, by petition for appeal to said the Supreme
Court presented to the Supreme Court or to any judge thereof, or
filed in the office of the clerk of the Supreme Court within two
weeks after the entry of the final order of the circuit court
therein. Pending final determination of such judicial review, the
levies made under section twenty-three shall be laid and the taxes
therefrom collected; and if the final determination be that the levies under section twenty-three or section twenty-three-a be in
excess of the amounts required for such indebtedness, such excess
shall be refunded by the collecting officer on demand to the person
from whom it was collected as hereinafter provided, or if the final
finding be that the levies for current expense of such fiscal body
be excessive, the excess thereof shall be transferred from the
current expense revenues to the revenues of such indebtedness, if
required therefor, and, if not required therefor, the collecting
officer shall, upon demand, refund any such excess payment to the
person from whom it was collected. If the collecting officer fail
fails to repay the amount, he or she and his or her sureties shall
be jointly and severally liable for the amount and the costs of
recovery. Recovery may be had by summons before a justice or on
motion, before the circuit court.
(b) Notwithstanding the date of enactment of the act of the
Legislature amending this section in the year two thousand five,
those amendments shall not become operational and shall have no
force and effect until the first day of January of the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state requiring changes in
this article.
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article apply to the following taxes imposed by this chapter: (1) Inheritance and transfer taxes
and estate taxes imposed by article eleven of this chapter; (2)
business registration tax imposed by article twelve of this
chapter; (3) minimum severance tax on coal imposed by article
twelve-b of this chapter; (4) corporate license tax imposed by
article twelve-c of this chapter; (5) business and occupation tax
imposed by article thirteen of this chapter; (6) severance tax
imposed by article thirteen-a of this chapter; (7)
telecommunications tax imposed by article thirteen-b of this
chapter; (8) gasoline and special fuels excise tax imposed by
article fourteen of this chapter; (9) motor fuels excise tax
imposed by article fourteen-c of this chapter; (10) motor carrier
road tax imposed by article fourteen-a of this chapter; (11)
interstate fuel tax agreement authorized by article fourteen-b of
this chapter; (12) consumers sales and service tax imposed by
article fifteen of this chapter; (13) use tax imposed by article
fifteen-a of this chapter; (14) tobacco products excise tax imposed
by article seventeen of this chapter; (15) soft drinks tax imposed
by article nineteen of this chapter; (16) personal income tax
imposed by article twenty-one of this chapter; (17) business
franchise tax imposed by article twenty-three of this chapter; (18)
corporation net income tax imposed by article twenty-four of this
chapter; and (19) health care provider tax imposed by article
twenty-seven of this chapter; (20) the general excise tax imposed by article fifteen-c of this chapter; (21) the progressive income
tax imposed by article twenty-one-a of this chapter; and (22) the
business activities and profits tax imposed by article twenty-eight
of this chapter.
(b) The provisions of this article also apply to the West
Virginia tax procedure and administration act in article ten of
this chapter and to any other articles of this chapter when
application is expressly provided for by the Legislature.
(c) The provisions of this article also apply to municipal
sales and use taxes imposed pursuant to article thirteen-c, chapter
eight of this code; the charitable bingo fee imposed by sections
six and six-a, article twenty, chapter forty-seven of this code;
the charitable raffle fee imposed by section seven, article
twenty-one of said chapter; and the charitable raffle boards and
games fees imposed by section three, article twenty-three of said
chapter.
(d) Each and every provision of this article applies to the
articles of this chapter listed in subsections (a), (b) and (c) of
this section, with like effect, as if the provisions of this
article were applicable only to the tax and were set forth in
extenso in this article.
(e) Notwithstanding the date of enactment of the act of the
Legislature enacting amendments to this section in the year two
thousand five, such amendments shall not be operative or in force and effect until the first day of January of the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-3. Application of this article.
(a) The provisions of this article apply to inheritance and
transfer taxes, estate tax and interstate compromise and
arbitration of inheritance and death taxes, business registration
tax, annual tax on incomes of certain carriers, minimum severance
tax on coal, corporate license tax, business and occupation tax,
severance tax, telecommunications tax, interstate fuel tax,
consumers sales and service tax, use tax, tobacco products excise
tax, soft drinks tax, personal income tax, business franchise tax,
corporation net income tax, gasoline and special fuels excise tax,
motor fuels excise tax, motor carrier road tax, health care
provider tax and tax relief for elderly homeowners and renters
administered by the State Tax Commissioner and, commencing on the
first day of January of the first year following the year in which
the voters ratify the Fair Taxation Amendment to the Constitution
of this state, the general excise tax, the progressive income tax,
and the business activities and profits tax. This article shall
not apply to ad valorem taxes on real and personal property or any
other tax not listed in this section, except that in the case of ad
valorem taxes on real and personal property, when any return, claim, statement or other document is required to be filed, or any
payment is required to be made within a prescribed period or before
a prescribed date, and the applicable law requires delivery to the
office of the sheriff of a county of this state, the methods
prescribed in section five-f of this article for timely filing and
payment to the Tax Commissioner or State Tax Department are the
same methods utilized for timely filing and payment with the
sheriff.
(b) The provisions of this article apply to beer barrel tax
levied by article sixteen of this chapter and to wine liter tax
levied by section four, article eight, chapter sixty of this code.
(c) The provisions of this article apply to any other article
of this chapter when the application is expressly provided for by
the Legislature.
(d) The provisions of this article apply to municipal sales
and use taxes imposed under article thirteen-c, chapter eight of
this code and collected by the Tax Commissioner.
§11-10-11b. Administration of add-on general excise tax and
add-on progressive income tax; commission
authorized.
(a) Any county or municipality which, pursuant to article
five-b, chapter seven of this code, or article thirteen-c, chapter
eight of this code, imposes an add-on general excise tax, or an
add-on progressive income tax, shall, by express provision in the order or ordinance imposing that tax, authorize the State Tax
Commissioner to administer, assess, collect and enforce that tax on
behalf of it and as its agent. The commission or municipality
shall make such authorization by the inclusion of a provision in
the order or ordinance stating its purpose and referring to this
section, and providing that such order or ordinance shall be
effective on the first day of a month at least sixty days after its
entry or adoption, as the case may be. A certified copy of such
order or ordinance shall be forwarded to the Tax Commissioner so
that it will be received within five days after its entry or
adoption.
(b) Any add-on general excise tax administered under this
section shall be administered and collected by the Tax Commissioner
in the same manner and subject to the same penalties as provided
for the tax imposed in article fifteen-c of this chapter. Any
add-on progressive income tax administered under this section shall
be administered and collected by the Tax Commissioner in the same
manner and subject to the same penalties as provided for the tax
imposed in article twenty-one-a of this chapter.
(c) All add-on general excise tax moneys and all add-on
progressive income tax moneys collected by the Tax Commissioner
under this section shall be paid into the State Treasury to the
credit of each county's or municipality's subaccount in a Local
Government Add-on Tax Revenue Fund to be established by the State Treasurer. Such add-on general excise tax moneys and add-on
progressive income tax moneys shall be credited to the subaccount
of each particular county or municipality levying the tax being
administered under this section. The credit for add-on general
excise tax moneys shall be made to the subaccount of the county or
municipality in which the taxable sales were made and services
rendered as shown by the records of the Tax Commissioner and
certified by him or her monthly to the State Treasurer, namely, the
location of each place of business of every vendor collecting and
paying the tax to the Tax Commissioner without regard to the place
of possible use by the purchaser. The credit for add-on
progressive income tax shall be made to the subaccount of the
county or municipality in which the taxpayer reporting the taxable
income resides as shown by the records of the Tax Commissioner and
certified by him or her monthly to the State Treasurer.
(d) As soon as practicable after the add-on general excise tax
moneys and add-on progressive income tax moneys have been paid into
the State Treasury in any month for the preceding month, the
commission of a county or the council of a municipality may issue
a requisition on the State Treasurer requesting issuance of a state
warrant for the proper amount in favor of such county or
municipality entitled to the monthly remittance of its add-on
general excise tax moneys or of its add-on progressive income tax
moneys, or of both as the case may be, and such remittances shall be made by the Treasurer and shall be charged to the subaccount of
each such county or municipality. If errors are made in any such
payment, or adjustments are otherwise necessary, whether
attributable to refunds to taxpayers, or to some other fact, the
errors shall be corrected and adjustments made in the payments for
the next six months as follows: One-sixth of the total adjustment
shall be included in the payments for each of the next six months.
In addition, the payment shall include a refund of amounts
erroneously not paid to the county or municipality and not
previously remitted during the three years preceding the discovery
of the error. A correction and adjustment in payments described in
this subsection shall be made, if at all, within three years of the
date of the payment error.
(e) The foregoing notwithstanding, the Tax Commissioner shall
deduct, and retain for the benefit of his or her office, from each
payment into the State Treasury as provided in subsection (c) of
this section, one percent thereof as a commission to compensate his
or her office for the discharge of the duties described in this
section.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-1. Short title.
This article shall be cited as the "Business Registration Tax
Act."
§11-12-26. Interpretation of preceding sections.
(a) None of the provisions of the preceding sections in this
article shall affect any of the sections of this article dealing
with the corporation land holding tax or the corporation license
tax; and none of the sections of this article dealing with such
taxes tax shall affect any of the sections of this article dealing
with the business registration tax certificates.
(b) Notwithstanding the date of enactment of the act of the
Legislature amending this section in the year two thousand five,
those amendments shall not become operative and shall have no force
and effect until the first year following the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of
this state requiring changes in this article.
§11-12-75. Tax on corporations holding more than one thousand
acres of land.
(a) Tax imposed. -- Every corporation, and controlled group of
corporations, including railroad and other corporations, holding
more than one thousand acres of land in this state shall pay to the
Tax Commissioner annually a tax of fifty cents per acre for the
privilege of acquiring and holding of land so acquired and held by
it in addition to one thousand acres.
(b) Legislative rules. -- The Tax Commissioner shall propose
for promulgation pursuant to the provisions of article three,
chapter twenty-nine of this code such legislative rules as may be
necessary to carry out the purpose of this section, including, but not limited to, rules relating to definitions of terms and the
attribution of ownership among members of a controlled group at
corporations.
(c) Credit for severance tax paid. -- In a tax year, there
shall be allowed as a credit against the tax imposed by this
section, an amount equal to the amount of tax paid, by the taxpayer
in the tax year for tax imposed under article thirteen-a of this
chapter: Provided, That the credit allowed by this subsection
shall not exceed the amount of tax imposed on the taxpayer in the
tax year without regard to such credit.
(d) Effective date of amendments. -- Notwithstanding the date
of enactment of the act of the Legislature amending this section in
the year two thousand five, those amendments shall not become
operative and shall have no force and effect until the first day of
January of the first year following the year in which the voters
ratify the Fair Taxation Amendment to the Constitution of this
state requiring changes in this article.
ARTICLE 13. BUSINESS AND OCCUPATION TAX.
§11-13-2e. Business of gas storage; phase-out; effective date.
(a) Rate of tax. -- Upon every person engaging or continuing
within this state in any gas storage business utilizing one or more
gas storage reservoirs located within this state, the tax imposed
by section two of this article shall be equal to five cents
multiplied by the sum of either: (1) The net number of dekatherms of gas injected into such a gas storage reservoir during a tax
month; or (2) the net number of dekatherms of gas withdrawn from
such a gas storage reservoir during a tax month, whichever is
applicable for that month, whether or not such gas is owned by, or
is injected or withdrawn for, the storage operator or any other
person. Fractional parts of dekatherms shall be included in the
measure of tax as provided in regulations rules promulgated by the
Tax Commissioner: Provided, That effective the first day of July,
one thousand nine hundred ninety-five, the net number of dekatherms
of gas injected or the net number of dekatherms withdrawn shall not
exceed the storage utilization index as defined in this subsection.
For purposes of this section, the term "storage utilization index"
means the utilization of storage reservoir, through the operation
of existing and functional facilities available for storage use
during the five-year base period ending the thirty-first day of
December, one thousand nine hundred ninety-four, and the storage
utilization index shall be the five-year average of taxable
dekatherms as determined for each taxable period of the Stated base
period.
(b) Effective date. -- The measure of tax under this section
shall include gas injected into, or withdrawn from, a gas storage
reservoir after the twenty-eighth day of February, one thousand
nine hundred eighty-nine.
(c) Administration; installment payments. -- The tax due under this section shall be administered, collected and enforced as
provided in this article and articles nine and ten of this chapter.
The tax due under this section shall be remitted in periodic
installments as provided in section four of this article, except
that such periodic installment payments shall be remitted on or
before the twentieth day of the month following the month or
quarter in which the tax accrues.
(d) Notice of retirement from service. -- A taxpayer subject
to the tax due under this section shall provide written notice to
the Joint Committee on Government and Finance and the Department of
Tax and Revenue eighteen months prior to the retirement from
service of a storage reservoir.
(e) Phase-out of tax. -- Notwithstanding any provision of
this code to the contrary, beginning in the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state phasing out the tax described in
this section, the rate of the tax shall be five cents multiplied as
described in subsection (a) of this section; and in the second
year, three and three quarters cents; and in the third year, two
and one-half cents; and in the fourth year one and one-quarter
cents and in the fifth year and thereafter zero cents.
(f) Effective date of phase-out. -- Notwithstanding the date
of enactment of the act of the Legislature amending this section in
the year two thousand five, these amendments shall not become operational and shall have no force and effect until the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state requiring changes in
this article.
§11-13-2o. Business of generating or producing or selling
electricity on and after the first day of June,
one thousand nine hundred ninety-five;
definitions; rate of tax; exemptions; effective
date.
(a) Definitions. -- As used in this section:
(1) "Average four-year generation" is computed by dividing by
four the sum of a generating unit's net generation, expressed in
kilowatt hours, for calendar years one thousand nine hundred
ninety-one, one thousand nine hundred ninety-two, one thousand nine
hundred ninety-three, and one thousand nine hundred ninety-four.
For any generating unit which was newly installed and placed into
commercial operation after the first day of January, one thousand
nine hundred ninety-one and prior to the effective date of this
section, "average four-year generation" is computed by dividing the
unit's net generation for the period beginning with the month in
which the unit was placed into commercial operation and ending with
the month preceding the effective date of this section by the
number of months in the period and multiplying the resulting amount
by twelve with the result being a representative twelve-month average of the unit's net generation while in an operational
status.
(2) "Capacity factor" means a fraction, the numerator of which
is average four-year generation and the denominator of which is the
maximum possible annual generation.
(3) "Generating unit" means a mechanical apparatus or
structure which through the operation of its component parts is
capable of generating or producing electricity and is regularly
used for this purpose.
(4) "Inactive reserve" means the removal of a generating unit
from commercial service for a period of not less than twelve
consecutive months as a result of lack of need for generation from
the generating unit or as a result of the requirements of state or
federal law or the removal of a generating unit from commercial
service for any period as a result of any physical exigency which
is beyond the reasonable control of the taxpayer.
(5) "Maximum possible annual generation" means the product,
expressed in kilowatt hours, of official capability times eight
thousand seven hundred sixty hours.
(6) "Official capability" means the nameplate capacity rating
of a generating unit expressed in kilowatts.
(7) "Peaking unit" means a generating unit designed for the
limited purpose of meeting peak demands for electricity or filling
emergency electricity requirements.
(8) "Retired from service" means the removal of a generating
unit from commercial service for a period of at least twelve
consecutive months with the intent that the unit will not
thereafter be returned to active service.
(9) "Taxable generating capacity" means the product, expressed
in kilowatts, of the capacity factor times the official capability
of a generating unit, subject to the modifications set forth in
subdivisions (2) and (3), subsection (c) of this section.
(10) "Net generation" for a period means the kilowatt hours of
net generation available for sale generated or produced by the
generating unit in this state during the period less the following:
(A) Twenty-one twenty-sixths of the kilowatt hours of
electricity generated at the generating unit and sold during the
period to a plant location of a customer engaged in manufacturing
activity if the contract demand at the plant location exceeds two
hundred thousand kilowatts per hour in a year or where the usage at
the plant location exceeds two hundred thousand kilowatts per hour
in a year;
(B) Twenty-one twenty-sixths of the kilowatt hours of
electricity produced or generated at the generating unit during the
period by any person producing electric power and an alternative
form of energy at a facility located in this state substantially
from gob or other mine refuse;
(C) The total kilowatt hours of electricity generated at the generating unit exempted from tax during the period by subsection
(b), section two-n of this article.
(b) Rate of tax. -- Upon every person engaging or continuing
within this state in the business of generating or producing
electricity for sale, profit or commercial use, either directly or
indirectly through the activity of others, in whole or in part, or
in the business of selling electricity to consumers, or in both
businesses, the tax imposed by section two of this article shall be
equal to:
(1) For taxpayers who generate or produce electricity for
sale, profit or commercial use, the product of twenty-two dollars
and seventy-eight cents multiplied by the taxable generating
capacity of each generating unit in this state owned or leased by
the taxpayer, subject to the modifications set forth in subsection
(c) of this section: Provided, That with respect to each
generating unit in this state which has installed a flue gas
desulfurization system, the tax imposed by section two of this
article shall, on and after the thirty-first day of January, one
thousand nine hundred ninety-six, be equal to the product of twenty
dollars and seventy cents multiplied by the taxable generating
capacity of the units, subject to the modifications set forth in
subsection (c) of this section: Provided, however, That with
respect to kilowatt hours sold to or used by a plant location
engaged in manufacturing activity in which the contract demand at the plant location exceeds two hundred thousand kilowatts per hour
per year or if the usage at the plant location exceeds two hundred
thousand kilowatts per hour in a year, in no event shall the tax
imposed by this article with respect to the sale or use of the
electricity exceed five hundredths of one cent times the kilowatt
hours sold to or used by a plant engaged in a manufacturing
activity; and
(2) For taxpayers who sell electricity to consumers in this
state that is not generated or produced in this state by the
taxpayer, nineteen hundredths of one cent times the kilowatt hours
of electricity sold to consumers in this state that were not
generated or produced in this state by the taxpayer, except that
the rate shall be five hundredths of one cent times the kilowatt
hours of electricity not generated or produced in this state by the
taxpayer which is sold to a plant location in this state of a
customer engaged in manufacturing activity if the contract demand
at such plant location exceeds two hundred thousand kilowatts per
hour per year or if the usage at such plant location exceeds two
hundred thousand kilowatts per hour in a year. The measure of tax
under this subdivision (2) shall be equal to the total kilowatt
hours of electricity sold to consumers in the state during the
taxable year, that were not generated or produced in this state by
the taxpayer, to be determined by subtracting from the total
kilowatt hours of electricity sold to consumers in the state the net kilowatt hours of electricity generated or produced in the
state by the taxpayer during the taxable year. For the purposes of
this subdivision, net kilowatt hours of electricity generated or
produced in this state by the taxpayer includes the taxpayer's pro
rata share of electricity generated or produced in this state by a
partnership or limited liability company of which the taxpayer is
a partner or member. The provisions of this subdivision (2) shall
not apply to those kilowatt hours exempt under subsection (b),
section two-n of this article. Any person taxable under this
subdivision (2) shall be allowed a credit against the amount of tax
due under this subdivision (2) for any electric power generation
taxes or a tax similar to the tax imposed by subdivision (1) of
this subsection (b) paid by the taxpayer with respect to the
electric power to the state in which the power was generated or
produced. The amount of credit allowed may not exceed the tax
liability arising under this subdivision (2) with respect to the
sale of the power.
(c) The following provisions are applicable to taxpayers
subject to tax under subdivision (1), subsection (b) of this
section:
(1) Retired units; inactive reserve. -- If a generating unit
is retired from service or placed in inactive reserve, a taxpayer
may not be liable for tax computed with respect to the taxable
generating capacity of the unit for the period that the unit is inactive or retired. The taxpayer shall provide written notice to
the Joint Committee on Government and Finance, as well as to any
other entity as may be otherwise provided by law, eighteen months
prior to retiring any generating unit from service in this state.
(2) New generating units. -- If a new generating unit, other
than a peaking unit, is placed in initial service on or after the
effective date of this section, the generating unit's taxable
generating capacity shall equal forty percent of the official
capability of the unit: Provided, That the taxable generating
capacity of a county or municipally-owned generating unit shall
equal zero percent of the official capability of the unit and the
taxable generating capacity of a generating unit utilizing a
turbine powered primarily by wind shall equal five percent of the
official capability of the unit.
(3) Peaking units. -- If a peaking unit is placed in initial
service on or after the effective date of this section, the
generating unit's taxable generating capacity shall equal five
percent of the official capability of the unit: Provided, That the
taxable generating capacity of a county or municipally-owned
generating plant shall equal zero percent of the official
capability of the unit.
(4) Transfers of interests in generating units. -- If a
taxpayer acquires an interest in a generating unit, the taxpayer
shall include the computation of taxable generating capacity of the unit in the determination of the taxpayer's tax liability as of the
date of the acquisition. Conversely, if a taxpayer transfers an
interest in a generating unit, the taxpayer may not for periods
thereafter be liable for tax computed with respect to the taxable
generating capacity of the transferred unit.
(5) Proration, allocation. -- The Tax Commissioner shall
promulgate rules in conformity with the provisions of article
three, chapter twenty-nine-a of this code to provide for the
administration of this section and to equitably prorate taxes for
a taxable year in which a generating unit is first placed in
service, retired or placed in inactive reserve, or in which a
taxpayer acquires or transfers an interest in a generating unit, to
equitably allocate and reallocate adjustments to net generation,
and to equitably allocate taxes among multiple taxpayers with
interests in a single generating unit, it being the intent of the
Legislature to prohibit multiple taxation of the same taxable
generating capacity.
So as to provide for an orderly transition with respect to the
rate making effect of this section, those electric light and power
companies which, as of the effective date of this section, are
permitted by the West Virginia Public Service Commission to utilize
deferred accounting for purposes of recovery from ratepayers of any
portion of business and occupation tax expense under this article
shall be permitted, until the time that action pursuant to a rate application or order of the commission provides for appropriate
alternative rate making treatment for such expense, to recover the
tax expense imposed by this section by means of deferred accounting
to the extent that the tax expense imposed by this section exceeds
the level of business and occupation tax under this article
currently allowed in rates.
(6) Electricity generated by manufacturer or affiliate for use
in manufacturing activity. -- When electricity used in a
manufacturing activity is generated in this state by the person who
owns the manufacturing facility in which the electricity is used
and the electricity generating unit or units producing the
electricity so used are owned by the manufacturer, or by a member
of the manufacturer's controlled group, as defined in Section 267
of the Internal Revenue Code of 1986, as amended, the generation of
the electricity may not be taxable under this article: Provided,
That any electricity generated or produced at the generating unit
or units which is sold or used for purposes other than in the
manufacturing activity shall be taxed under this section and the
amount of tax payable shall be adjusted to be equal to an amount
which is proportional to the electricity sold for purposes other
than the manufacturing activity. The Department of Tax and Revenue
shall promulgate rules in accordance with article three, chapter
twenty-nine-a of the code: Provided, however, That the rules shall
be promulgated as emergency rules.
(d) Beginning the first day of June, one thousand nine hundred
ninety-five, electric light and power companies that actually paid
tax based on the provisions of subdivision (3), subsection (a),
section two-d of this article or section two-m of this article for
every taxable month in one thousand nine hundred ninety-four shall
determine their liability for payment of tax under this article in
accordance with subdivisions (1) and (2) of this subsection. All
other electric light and power companies shall determine their
liability for payment of tax under this article exclusively under
this section beginning the first day of June, one thousand nine
hundred ninety-five and thereafter.
(1) If for taxable months beginning on or after the first day
of June, one thousand nine hundred ninety-five, liability for tax
under this section is equal to or greater than the sum of the power
company's liability for payment of tax under subdivision (3),
subsection (a), section two-d of this article and this section,
then the company shall pay the tax due under this section and not
the tax due under subdivision (3), subsection (a), section two-d of
this article and section two-m of this article. If tax liability
under this section is less then the tax shall be paid under
subdivision (3), subsection (a), section two-d of this article and
section two-m and the tax due under this section may not be paid.
(2) Notwithstanding subdivision (1) of this subsection, for
taxable years beginning on or after the first day of January, one thousand nine hundred ninety-eight, all electric and light power
companies shall determine their liability for payment of tax under
this article exclusively under this section.
(e) Phase-down of rate. -- Notwithstanding any provision of
this code to the contrary, beginning in the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state phasing down the rate of tax
provided in this section, the rate of the tax shall be twenty-two
dollars and seventy-eight cents multiplied as described in
subdivision (1), subsection (b) of this section; and in the second
year, seventeen dollars and nine cents; and in the third year,
eleven dollars and thirty-nine cents; and in the fourth year, five
dollars and seventy cents and in the fifth year and thereafter,
three dollars and twenty-five cents: Provided, That the other
rates of tax described after the first provision in subdivision
(1), subsection (b) of this section, and in subdivision (2),
subsection (b) of this section, shall, likewise, be ratably reduced
concurrent with the phase-down of the said rate of tax.
(f) Effective date of phase-down. -- Notwithstanding the date
of enactment of the act of the Legislature amending this section in
the year two thousand five, these amendments shall not become
operational and shall have no force and effect until the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state requiring changes in this article.
ARTICLE 13A. SEVERANCE TAX.
§11-13A-2. Definitions.
(a) General rule. -- When used in this article, or in the
administration of this article, the terms defined in subsection
(b), (c) or (d) of this section shall have the meanings ascribed to
them by this section, unless a different meaning is clearly
required by the context in which the term is used or by specific
definition.
(b) General terms defined. -- Definitions in this subsection
apply to all persons subject to the taxes imposed by this article.
(1) "Business" includes all activities engaged in, or caused
to be engaged in, with the object of gain or economic benefit,
direct or indirect, and whether engaged in for profit, or not for
profit, or by a governmental entity: Provided, That "business"
does not include services rendered by an employee within the scope
of his or her contract of employment. Employee services, services
by a partner on behalf of his or her partnership and services by a
member of any other business entity on behalf of that entity are
the business of the employer or partnership, or other business
entity as the case may be, and reportable as such for purposes of
the taxes imposed by this article.
(2) "Corporation" includes associations, joint-stock companies
and insurance companies. It also includes governmental entities when and to the extent such governmental entities engage in
activities taxable under this article.
(3) "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 function mentioned or described in this article or regulations
promulgated thereunder.
(4) "Fiduciary" means and includes a guardian, trustee,
executor, administrator, receiver, conservator or any person acting
in any fiduciary capacity for any person.
(5) "Gross proceeds" means the value, whether in money or
other property, actually proceeding from the sale or lease of
tangible personal property, or from the rendering of services,
without any deduction for the cost of property sold or leased or
expenses of any kind.
(6) "Includes" and "including", when used in a definition
contained in this article, shall not be deemed to exclude other
things otherwise within the meaning of the term being defined.
(7) "Partner" includes a member of a syndicate, group, pool,
joint venture or other organization which is a "partnership" as
defined in this section.
(8) "Partnership" includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of
which any privilege taxable under this article is exercised and
which is not within the meaning of this article a trust or estate
or corporation. "Partnership" includes a limited liability company
which is treated as a partnership for federal income tax purposes.
(9) "Person" or "company" are herein used interchangeably and
include any individual, firm, partnership, mining partnership,
joint venture, association, corporation, trust or other entity, or
any other group or combination acting as a unit, and the plural as
well as the singular number, unless the intention to give a more
limited meaning is declared by the context.
(10) "Sale" includes any transfer of the ownership or title to
property, whether for money or in exchange for other property or
services, or any combination thereof. "Sale" includes a lease of
property, whether the transaction be characterized as a rental,
lease, hire, bailment or license to use. "Sale" also includes
rendering services for a consideration, whether direct or indirect.
(11) "Service" includes all activities engaged in by a person
for a consideration which involve the rendering of a service as
distinguished from the sale of tangible personal property:
Provided, That "service" does not include: (A) Services rendered
by an employee to his or her employer under a contract of
employment; (B) contracting; or (C) severing or processing natural
resources.
(12) "Tax" means any tax imposed by this article and, for
purposes of administration and collection of such tax, it includes
any interest, additions to tax or penalties imposed with respect
thereto under article ten of this chapter.
(13) "Tax Commissioner" or "Commissioner" means the tax
Commissioner of the State of West Virginia or his or her delegate.
(14) "Taxable year" means the calendar year, or the fiscal
year ending during such calendar year, upon the basis of which a
tax liability is computed under this article. In the case of a
return made under this article, or regulations of the Tax
Commissioner, for a fractional part of a year, the term "taxable
year" means the period for which such return is made.
(15) "Taxpayer" means any person subject to any tax imposed by
this article.
(16) "This code" means the code of West Virginia, one thousand
nine hundred thirty-one, as amended.
(17) "This State" means the State of West Virginia.
(18) "Withholding agent" means any person required by law to
deduct and withhold any tax imposed by this article or under
regulations promulgated by the Tax Commissioner.
(c) Specific definitions for producers of natural resources.
--
(1) "Barrel of oil" means forty-two U.S. gallons of two
hundred thirty-one cubic inches of liquid at a standard temperature of sixty degrees Fahrenheit.
(2) "Coal" means and includes any material composed
predominantly of hydrocarbons in a solid state.
(3) "Cubic foot of gas" means the volume of gas contained in
one cubic foot at a standard pressure base of fourteen point
seventy-three pounds per square inch (absolute) and a standard
temperature of sixty degrees Fahrenheit.
(4) "Economic interest" for the purpose of this article is
synonymous with the economic interest ownership required by Section
611 of the Internal Revenue Code in effect on the thirty-first day
of December, one thousand nine hundred eighty-five, entitling the
taxpayer to a depletion deduction for income tax purposes:
Provided, That a person who only receives an arm's length royalty
shall not be considered as having an economic interest.
(5) "Extraction of ores or minerals from the ground" includes
extraction by mine owners or operators of ores or minerals from the
waste or residue of prior mining only when such extraction is sold.
(6) "Gross value" in the case of natural resources means the
market value of the natural resource product, in the immediate
vicinity where severed, determined after application of post
production processing generally applied by the industry to obtain
commercially marketable or usable natural resource products. For
all natural resources, "gross value" is to be reported as follows:
(A) For natural resources severed or processed (or both severed and processed) and sold during a reporting period, gross
value is the gross proceeds received or receivable by the taxpayer.
(B) In a transaction involving related parties, gross value
shall not be less than the fair market value for natural resources
of similar grade and quality.
(C) In the absence of a sale, gross value shall be the fair
market value for natural resources of similar grade and quality.
(D) If severed natural resources are purchased for the purpose
of processing and resale, the gross value is the amount received or
receivable during the reporting period reduced by the amount paid
or payable to the taxpayer actually severing the natural resource.
If natural resources are severed outside the State of West Virginia
and brought into the State of West Virginia by the taxpayer for the
purpose of processing and sale, the gross value is the amount
received or receivable during the reporting period reduced by the
fair market value of natural resources of similar grade and quality
and in the same condition immediately preceding the processing of
the natural resources in this state.
(E) If severed natural resources are purchased for the purpose
of processing and consumption, the gross value is the fair market
value of processed natural resources of similar grade and quality
reduced by the amount paid or payable to the taxpayer actually
severing the natural resource. If severed natural resources are
severed outside the State of West Virginia and brought into the State of West Virginia by the taxpayer for the purpose of
processing and consumption, the gross value is the fair market
value of processed natural resources of similar grade and quality
reduced by the fair market value of natural resources of similar
grade and quality and in the same condition immediately preceding
the processing of the natural resources.
(F) In all instances, the gross value shall be reduced by the
amount of any federal energy tax imposed upon the taxpayer after
the first day of June, one thousand nine hundred ninety-three, but
shall not be reduced by any state or federal taxes, royalties,
sales commissions or any other expense.
(G) For natural gas, gross value is the value of the natural
gas at the wellhead immediately preceding transportation and
transmission.
(H) For limestone or sandstone quarried or mined, gross value
is the value of such stone immediately upon severance from the
earth.
(7) "Mining" includes not merely the extraction of ores or
minerals from the ground, but also those treatment processes
necessary or incidental thereto.
(8) "Natural resources" means all forms of minerals including,
but not limited to, rock, stone, limestone, coal, shale, gravel,
sand, clay, natural gas, oil and natural gas liquids which are
contained in or on the soils or waters of this state and includes standing timber.
(9) "Processed" or "processing" as applied to:
(A) Oil and natural gas shall not include any conversion or
refining process; and
(B) Limestone or sandstone quarried or mined shall not include
any treatment process or transportation after the limestone or
sandstone is severed from the earth.
(10) "Related parties" means two or more persons,
organizations or businesses owned or controlled directly or
indirectly by the same interests. Control exists if a contract or
lease, either written or oral, is entered into whereby one party
mines or processes natural resources owned or held by another party
and the owner or lessor participates in the severing, processing or
marketing of the natural resources or receives any value other than
an arm's length passive royalty interest. In the case of related
parties, the Tax Commissioner may apportion or allocate the
receipts between or among such persons, organizations or businesses
if he or she determines that such apportionment or allocation is
necessary to more clearly reflect gross value.
(11) "Severing" or "severed" means the physical removal of the
natural resources from the earth or waters of this state by any
means: Provided, That "severing" or "severed" shall not include
the removal of natural gas from underground storage facilities into
which the natural gas has been mechanically injected following its initial removal from earth: Provided, however, That "severing" or
"severed" oil and natural gas shall not include any separation
process of oil or natural gas commonly employed to obtain
marketable natural resource products.
(12) "Stock" includes shares in an association, joint-stock
company or corporation.
(13) "Taxpayer" means and includes any individual,
partnership, joint venture, association, corporation, receiver,
trustee, guardian, executor, administrator, fiduciary or
representative of any kind engaged in the business of severing or
processing (or both severing and processing) natural resources in
this state for sale or use. In instances where contracts (either
oral or written) are entered into whereby persons, organizations or
businesses are engaged in the business of severing or processing
(or both severing and processing) a natural resource but do not
obtain title to or do not have an economic interest therein, the
party who owns the natural resource immediately after its severance
or has an economic interest therein is the taxpayer.
(d) Specific definitions for persons providing health care
items or services. --
"Behavioral health services" means services provided for the
care and treatment of persons with mental illness, mental
retardation, developmental disabilities or alcohol or drug abuse
problems in an inpatient, residential or outpatient setting, including, but not limited to, habilitative or rehabilitative
interventions or services and cooking, cleaning, laundry and
personal hygiene services provided for such care: Provided, That
gross receipts derived from providing behavioral health services
that are included in the provider's measure of Tax under article
twenty-seven of this chapter shall not be include in that
provider's measure of Tax under this article. The amendment to
this definition in the year two thousand four is intended to
clarify the intent of the Legislature as to the activities that
qualify as behavioral health services, and this clarification shall
be applied retrospectively to the effective date of the amendment
to this section in which the definition of "behavioral health
services" was originally provided as enacted during the first
extraordinary session of the Legislature in the year one thousand
nine hundred ninety-three.
§11-13A-3. Imposition of tax or privilege of severing coal,
limestone or sandstone, effective dates therefor;
reduction of severance rate for coal mined by
underground methods based on seam thickness.
(a) Imposition of tax. -- Upon every person exercising the
privilege of engaging or continuing within this state in the
business of severing, extracting, reducing to possession and
producing for sale, profit or commercial use coal, limestone or
sandstone or in the business of furnishing certain health care services, there is hereby levied and shall be collected from every
person exercising such privilege an annual privilege tax.
(b) Rate and measure of tax. -- The tax imposed in subsection
(a) of this section shall be five percent of the gross value of the
natural resources produced, or the health care service provided as
shown by the gross income derived from the sale or furnishing
thereof by the producer or the provider of the health care service,
except as otherwise provided in this article. In the case of coal,
this five percent rate of tax includes the thirty-five one
hundredths of one percent additional severance tax on coal imposed
by the state for the benefit of counties and municipalities as
provided in section six of this article.
(c) "Certain health care services" defined. -- For purposes of
this section, the term "certain health care services" means, and is
limited to, behavioral health services.
(d) (c) Tax in addition to other taxes. -- The tax imposed by
this section shall apply to all persons severing or processing (or
both severing and processing) in this state natural resources
enumerated in subsection (a) of this section and to all persons
providing certain health care services in this State as enumerated
in subsection (c) of this section and shall be in addition to all
other taxes imposed by law.
(e) (d) Effective date. -- This section, as amended in the
year one thousand nine hundred ninety-three, shall apply to gross proceeds derived after the thirty-first day of May of such year.
The language of this section, as in effect on the first day of
January of such year, shall apply to gross proceeds derived prior
to the first day of June of such year and, with respect to such
gross proceeds, shall be fully and completely preserved.
(f) (e) Reduction of severance tax rate. -- For tax years
beginning after the effective date of this subsection, any person
exercising the privilege of engaging within this state in the
business of severing coal for the purposes provided in subsection
(a) of this section shall be allowed a reduced rate of tax on coal
mined by underground methods in accordance with the following:
(i) For coal mined by underground methods from seams with an
average thickness of thirty-seven inches to forty-five inches, the
tax imposed in subsection (a) of this section shall be two percent
of the gross value of the coal produced. For coal mined by
underground methods from seams with an average thickness of less
than thirty-seven inches, the tax imposed in subsection (a) of this
section shall be one percent of the gross value of the coal
produced. Gross value is determined from the sale of the mined
coal by the producer. This rate of tax includes the thirty-five
one hundredths of one percent additional severance tax imposed by
the state for the benefit of counties and municipalities as
provided in section six of this article.
(ii) This reduced rate of tax applies to any new underground mine producing coal after the effective date of this subsection,
from seams of less than forty-five inches in average thickness or
any existing mine that has not produced coal from seams forty-five
inches or less in thickness in the one hundred eighty days
immediately preceding the effective date of this subsection.
(iii) The seam thickness shall be based on the weighted
average isopach mapping of actual coal thickness by mine as
certified by a professional engineer.
§11-13A-20a. Dedication of tax.
(a) The amount of taxes collected under this article from
providers of health care items or services, including any interest,
additions to tax and penalties collected under article ten of this
chapter, less the amount of allowable refunds and any interest
payable with respect to such refunds, shall be deposited into the
special revenue fund created in the State treasurer's office and
known as the medicaid State share fund. Said fund shall have
separate accounting for those health care providers as set forth in
articles four-b and four-c, chapter nine of this code.
(b) Notwithstanding the provisions of subsection (a) of this
section, for the remainder of fiscal year one thousand nine hundred
ninety-three and for each succeeding fiscal year, no expenditures
from taxes collected from providers of health care items or
services are authorized except in accordance with appropriations by
the Legislature.
(c) (a) The amount of taxes on the privilege of severing
timber collected under section three-b of this article, including
any interest, additions to tax and penalties collected under
article ten of this chapter, less the amount of allowable refunds
and any interest payable with respect to such refunds, shall be
paid into a special revenue account in the State Treasury to be
appropriated by the Legislature for purposes of the Division of
Forestry.
(d) (b) The amount of taxes collected under this article from
all other persons, including any interest, additions to tax and
penalties collected under article ten of this chapter, less the
amount of allowable refunds and any interest payable with respect
to such refunds, shall be deposited into the general revenue fund.
ARTICLE 13B. TELECOMMUNICATIONS TAX.
§11-13B-3. Tax imposed on telecommunications businesses; effective
date.
(a) Tax imposed. -- Upon every telecommunications business
selling or furnishing telegraph, telephone or other
telecommunications service, there is hereby imposed an annual
privilege tax on account of the business, or other activities, of
the taxpayer engaged in or carried on within this state, during the
taxable year. The amount of taxes due shall be determined by
application of rates against gross income, as specified in
subsection (b) of this section for telecommunications business effective on and after the first day of July, one thousand nine
hundred eighty-seven.
(b) Tax rate. -- The liability of a taxpayer under this
article shall be four percent of the sum of:
(A) Its gross income from all telecommunications business
beginning and ending within this state; and
(B) Its gross income apportioned to this state from all
telecommunications business that either begins or ends in this
state.
(c) Exemptions. -- This section shall not apply to
telecommunications services provided by municipalities, or by any
other political subdivisions of this state.
(d) Apportionment of certain income of telecommunications
companies. -- Gross revenues of telecommunications companies
derived from one point business in this state shall be apportioned
to the State of West Virginia in the same proportion that the
length of such company's communications pathways, weighted by the
number of channels such pathways are capable of carrying, in West
Virginia bears to the total length of such company's communications
pathways, weighted by the number of channels such pathways are
capable of carrying, located everywhere in the United States, its
territories and possessions.
(e) Phase-out of tax. -- Notwithstanding any provision of this
code to the contrary, beginning in the first year following the year in which the voters ratify the Fair Taxation Amendment to the
Constitution of this state phasing out the tax imposed by this
section, the rate of tax shall be three percent of the sum
described in subsection (b) of this section; and in the second
year, two percent; and in the third year, one percent; and in the
fourth year and thereafter zero percent.
(f) Effective date of phase-out. -- Notwithstanding the date
of enactment of the act of the Legislature amending this section in
the year two thousand five, these amendments shall not become
operational and shall have no force and effect until the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state requiring changes in
this article.
§11-13B-19. Phase-out of tax by Fair Taxation Amendment.
Notwithstanding anything contained in this code to the
contrary, the provisions of this article shall cease to be
operative and shall no longer have any force or effect with respect
to tax years following the year in which the voters ratify the Fair
Taxation Amendment to the Constitution of this state requiring the
phase-out of the tax imposed by this article: Provided, That, the
foregoing notwithstanding, the provisions of this article are
preserved and shall remain operative and shall be in force and
effect for all tax years next preceding and including the year in
which the Fair Taxation Amendment shall have been ratified by the voters and including, further, the years subsequent to such
ratification until the first tax year next succeeding the end of
the phase-out of the telecommunications tax as provided in the Fair
Taxation Amendment and as implemented in section three of this
article.
ARTICLE 13C. BUSINESS INVESTMENT AND JOBS EXPANSION TAX CREDIT.
§11-13C-17. Prospective termination of credit; effective date.
(a) Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article
twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but
for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 13D. TAX CREDITS FOR INDUSTRIAL EXPANSION AND
REVITALIZATION, RESEARCH AND DEVELOPMENT
PROJECTS, CERTAIN HOUSING DEVELOPMENT PROJECTS,
MANAGEMENT INFORMATION SERVICES FACILITIES,
INDUSTRIAL FACILITIES PRODUCING COAL-BASED
LIQUIDS USED TO PRODUCE SYNTHETIC FUELS, AND
AEROSPACE INDUSTRIAL FACILITIES INVESTMENTS.
§11-13D-11. Prospective termination of credit; effective date.
(a) Prospective termination of credits. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article
twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but
for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 13E. BUSINESS AND OCCUPATION TAX CREDIT FOR COAL LOADING
FACILITIES.
§11-13E-8. Prospective termination of credit; effective date.
(a) Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article
twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but
for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 13F. BUSINESS AND OCCUPATION TAX CREDIT FOR REDUCING
ELECTRIC AND NATURAL GAS UTILITY RATES FOR
LOW-INCOME RESIDENTIAL CUSTOMERS.
§11-13F-6. Prospective termination of credit; effective date.
(a) Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article
twenty-eight of this chapter and who has gained entitlement to the credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but
for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 13G. TAX CREDIT FOR REDUCING TELEPHONE UTILITY RATES FOR
CERTAIN LOW-INCOME RESIDENTIAL CUSTOMERS.
§11-13G-6. Prospective termination of credit; effective date.
(a) Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but
for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 13J. NEIGHBORHOOD INVESTMENT PROGRAM.
§11-13J-13. Prospective termination of credit; effective date.
(a) Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but
for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this State prospectively repealing certain tax
credits provided in this code.
ARTICLE 13K. TAX CREDIT FOR AGRICULTURAL EQUIPMENT.
§11-13K-7. Prospective termination of credit; effective date.
(a) Termination of credit. -- Notwithstanding any other
provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but
for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 13N. TAX CREDIT FOR NEW STEEL MANUFACTURING OPERATIONS
AFTER JULY 1, 1998.
§11-13N-13. Preservation of credit earned prior to expiration.
Notwithstanding the provisions of subsection (b), section four
of this article, any person subject to the tax imposed under
article twenty-eight of this chapter and who has gained entitlement
to the credit provided in this article prior to the effective date
of this section shall be allowed a credit against the tax imposed
under article twenty-eight of this chapter in an amount and for the tax year or years that will secure for such person an actual
economic benefit equal in amount to the economic benefit he, she or
it would have received by virtue of the credit provided in this
article but for the expiration of the credit pursuant to subsection
(b), section four of this article. This section shall become
effective on the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state.
ARTICLE 13Q. ECONOMIC OPPORTUNITY TAX CREDIT.
§11-13Q-22. Prospective termination of credit; effective date.
(a) Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article
twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 13R. STRATEGIC RESEARCH AND DEVELOPMENT TAX CREDIT.
§11-13R-13. Prospective termination of credit; effective date.
(a) Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article
twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 13S. MANUFACTURING INVESTMENT TAX CREDIT.
§11-13S-11. Prospective termination of credit; effective date.
(a) Prospective termination of credit. -- Notwithstanding any
other provision of this code to the contrary, no credit under this
article is available to any taxpayer for tax years beginning on or
after the effective date of this section.
(b) Preservation of economic benefit of previously earned
credits. -- Notwithstanding the provisions of subsection (a) of
this section, any person subject to the tax imposed under article
twenty-eight of this chapter and who has gained entitlement to the
credit provided in this article prior to the effective date of this
section shall be allowed a credit against the tax imposed under
article twenty-eight of this chapter in an amount and for the tax
year or years that will secure for such person an actual economic
benefit equal in amount to the economic benefit he, she or it would
have received by virtue of the credit provided in this article but for subsection (a) of this section.
(c) Effective date. -- Notwithstanding the date of the
enactment of the act of the Legislature enacting this section, this
section shall not become operational and shall have no force and
effect until the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state prospectively repealing certain tax
credits provided in this code.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-34. Prospective termination of tax, preservation for prior
periods.
Each and every provision of this article is repealed for all
tax periods beginning on the first day of January of the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state: Provided, That tax
liabilities, if any, arising for taxable periods prior to the first
day of January of the first year following the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of
this state shall be determined, administered, assessed and
collected as if the taxes imposed by this article had not been
repealed; and the rights and duties of taxpayers and the state
shall be fully and completely preserved.
ARTICLE 15A. USE TAX.
§11-15A-30. Prospective termination of tax, preservation for prior periods.
Each and every provision of this article is repealed for all
tax periods beginning on the first day of January of the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state: Provided, That tax
liabilities, if any, arising for taxable periods prior to the first
day of January of the first year following the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of
this state shall be determined, administered, assessed and
collected as if the taxes imposed by this article had not been
repealed; and the rights and duties of taxpayers and the state
shall be fully and completely preserved.
ARTICLE 15C. GENERAL EXCISE TAX.
§11-15C-1. Short title.
This article is known and may be cited as the "General Excise
Tax Law."
§11-15C-2. Legislative findings and declaration of purpose.
The Legislature finds that all vendors and other persons,
regardless of their means, benefit from the availability of goods
and services in the marketplaces of this state and from the use of
goods and services in this state. The Legislature further finds
that the functions of state government foster and protect those
marketplaces and uses, and, as a result, all vendors and other
persons who avail themselves of those benefits should provide some of the financial support for those functions of state government
through a broad-based general excise tax on the privileges of
selling, purchasing and using goods and services in this state.
The Legislature further finds it to be imminently fair that, with
few exceptions, the financial support which each vendor and each
other person would provide for the functions of state government
through such a tax should be measured by the extent to which they
participate in the marketplaces or acquire such goods and services
for use.
The Legislature further finds that the only exceptions to such
a broad-based general excise tax should be those which mitigate its
potential for pyramiding tax incidences and for complicating its
administration with respect to governmental purchases, purchases
for charitable, educational and public safety purposes that relieve
the burdens of government and purchases of goods and services by
individuals for health care which are predominately paid or
reimbursed by third parties -- including the government.
The Legislature does therefore declare that the purpose of
this article shall be to impose the general excise tax for the
privilege of selling, purchasing and using goods and services in
this state, and it shall be construed so as to give effect to the
findings in this section.
§11-15C-3. Definitions of terms.
For the purposes of this article:
(a) Agricultural production. -- The term "agricultural
production" means the production of food, fiber and woodland
products by means of cultivation, tillage of the soil and the
conduct of animal, livestock, dairy, apiary, equine or poultry
husbandry, horticulture, or any other plant or animal production
and all farm practices related, usual or incidental thereto,
including the storage, packing, shipping and marketing, but not
including any manufacturing, milling or processing of such products
by persons other than the original producer thereof.
(b) Business. -- The term "business" includes all activities
engaged in or caused to be engaged in with the object of gain or
economic benefit, direct or indirect, and all activities of the
state and its political subdivisions which involve sales of
tangible personal property or the rendering of services when those
sales or services compete with or may compete with the activities
of other nongovernmental persons.
(c) Contracting. --
(1) In general. -- The term "contracting" means and includes
the furnishing of work, or both materials and work, for another (by
a sole contractor, general contractor, prime contractor,
subcontractor or construction manager) in fulfillment of a contract
for the construction, alteration, repair, decoration or improvement
of a new or existing building or structure, or any part thereof, or
for removal or demolition of a building or structure, or any part thereof, or for the alteration, improvement or development of real
property. Contracting means and includes services provided by a
construction manager so long as the project for which the
construction manager provides the services results in a capital
improvement to a building or structure or to real property.
(2) Form of contract not controlling. -- An activity that
falls within the scope of the definition of contracting shall
constitute contracting regardless of whether the contract governing
the activity is written or verbal and regardless of whether it is
in substance or form a lump sum contract, a cost-plus contract, a
time and materials contract, whether or not open-ended, or any
other kind of construction contract.
(3) Special rules. -- For purposes of this definition:
(A) The term "structure" includes, but is not limited to,
everything built up or composed of parts joined together in some
definite manner and attached or affixed to real property or which
adds utility to real property or any part thereof or which adds
utility to a particular parcel of property and is intended to
remain there for an indefinite period of time;
(B) The term "alteration" means, and is limited to,
alterations which are capital improvements to a building or
structure or to real property;
(C) The term "repair" means, and is limited to, repairs which
are capital improvements to a building or structure or to real property;
(D) The term "decoration" means, and is limited to,
decorations which are capital improvements to a building or
structure or to real property;
(E) The term "improvement" means, and is limited to,
improvements which are capital improvements to a building or
structure or to real property;
(F) The term "capital improvement" means improvements that are
affixed to or attached to and become a part of a building or
structure or the real property or which add utility to real
property, or any part thereof, and that last or are intended to be
relatively permanent. As used herein, "relatively permanent" means
lasting at least a year in duration without the necessity for
regularly scheduled recurring service to maintain the capital
improvement. "Regular recurring service" means regularly scheduled
service intervals of less than one year;
(G) Contracting does not include the furnishing of work, or
both materials and work, in the nature of hookup, connection,
installation or other services if the service is incidental to the
retail sale of tangible personal property from the service
provider's inventory: Provided, That the hookup, connection or
installation of the foregoing is incidental to the sale of the same
and performed by the seller thereof or performed in accordance with
arrangements made by the seller thereof. Examples of transactions that are excluded from the definition of contracting pursuant
hereto include, but are not limited to, the sale of wall-to-wall
carpeting and the installation of wall-to-wall carpeting, the sale,
hookup and connection of mobile homes, window air conditioning
units, dishwashers, clothing washing machines or dryers, other
household appliances, drapery rods, window shades, venetian blinds,
canvas awnings, free standing industrial or commercial equipment
and other similar items of tangible personal property. Repairs
made to the foregoing are within the definition of contracting if
the repairs involve permanently affixing to or improving real
property or something attached thereto which extends the life of
the real property or something affixed thereto or allows or intends
to allow the real property or thing permanently attached thereto to
remain in service for a year or longer.
(H) The term "construction manager" means a person who enters
into an agreement to employ, direct, coordinate or manage design
professionals and contractors who are hired and paid directly by
the owner or the construction manager. The business activities of
a "construction manager" as defined herein shall constitute
contracting, so long as the project for which the construction
manager provides the services results in a capital improvement to
a building or structure or to real property.
(d) Delegate. -- The term "delegate" in the phrase "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 Revenue duly authorized by the Tax Commissioner directly, or
indirectly by one or more redelegations of authority, to perform
functions mentioned or described in this article or regulations
promulgated thereunder.
(e) Directly used or consumed. --
(1) General. -- The term "directly used or consumed" in the
activities of manufacturing, natural resource production and
agricultural production means used or consumed in those activities
or operations which constitute an integral and essential part of
one of those activities, as contrasted with and distinguished from
those activities or operations which are simply incidental,
convenient or remote to one of those activities.
(2) Uses of property or consumption of services which
constitute direct use or consumption in the activities of
manufacturing, natural resource production or agricultural
production includes only:
(A) In the case of tangible personal property, physical
incorporation of property into a finished product resulting from
manufacturing, natural resource production or agricultural
production;
(B) Causing a direct physical, chemical or other change upon
property undergoing manufacturing, natural resource production or
agricultural production;
(C) Transporting or storing property undergoing manufacturing,
natural resource production or agricultural production;
(D) Measuring or verifying a change in property directly used
in manufacturing, natural resource production or agricultural
production;
(E) Physically controlling or directing the physical movement
or operation of property directly used in manufacturing, natural
resource production or agricultural production;
(F) Directly and physically recording the flow of property
undergoing manufacturing, natural resource production or
agricultural production;
(G) Producing energy for property directly used in
manufacturing, natural resource production or agricultural
production;
(H) Facilitating the transmission of gas, water, steam or
electricity from the point of their diversion to property directly
used in manufacturing, natural resource production or agricultural
production;
(I) Controlling or otherwise regulating atmospheric conditions
required for manufacturing, natural resource production or
agricultural production;
(J) Serving as an operating supply for property undergoing
manufacturing, natural resource production or agricultural
production, or for property directly used in manufacturing, natural resource production or agricultural production;
(K) Maintenance or repair of property, including maintenance
equipment, directly used in manufacturing, natural resource
production or agricultural production;
(L) Storage, removal or transportation of economic waste
resulting from the activities of manufacturing, natural resource
production or agricultural production;
(M) Pollution control or environmental quality or protection
activity directly relating to the activities of manufacturing,
natural resource production or agricultural production and
personnel, plant, product or community safety or security activity
directly relating to the activities of manufacturing, natural
resource production or agricultural production; or
(N) Otherwise be used as an integral and essential part of
manufacturing, natural resource production or agricultural
production.
(3) Uses of property or services which do not constitute
direct use or consumption in the activities of manufacturing,
natural resource production or agricultural production include, but
are not limited to:
(A) Heating and illumination of office buildings;
(B) Janitorial or general cleaning activities;
(C) Personal comfort of personnel;
(D) Production planning, scheduling of work or inventory control;
(E) Marketing, general management, supervision, finance,
training, accounting and administration; or
(F) An activity or function incidental or convenient to
manufacturing, natural resource production or agricultural
production, rather than an integral and essential part of these
activities.
(3) In the activity of the generation or production of
electric power, the term "directly used or consumed" means used or
consumed in that activity so as to constitute an integral and
essential part of that activity, as contrasted with and
distinguished from activities which are simply incidental,
convenient or remote to that activity.
(4) Uses of property or consumption of services which
constitute direct use or consumption in the activity of the
generation or production of electric power, include only:
(A) Tangible personal property or services, including
equipment, machinery, apparatus, supplies, fuel and power and
appliances, which are used immediately in production or generation
activities and equipment, machinery, supplies, tools and repair
parts used to keep in operation exempt production or generation
devices. For purposes of this subsection, production or generation
activities shall commence from the intake, receipt or storage of
raw materials at the production plant site;
(B) Tangible personal property or services, including
equipment, machinery, tools, repair parts and supplies used to keep
in operation generation or production devices, and these vehicles
and their equipment as are specifically designed and equipped for
such purposes are exempt from the tax when used to keep such
generation or production facilities in operation or repair;
(C) Tangible personal property or services used immediately in
the storage, removal or transportation of economic waste resulting
from the activity of the generation or production of electric
power; and
(D) Tangible personal property or services used immediately in
pollution control or environmental quality or protection activity
or community safety or security directly relating to the activity
of generation or production of electric power.
(5) Uses of property or services which would not constitute
direct use or consumption in the activity of generation or
production of electric power include, but are not limited to:
(A) Heating and illumination of office buildings;
(B) Janitorial or general cleaning activities;
(C) Personal comfort of personnel;
(D) Production planning, scheduling of work or inventory
control;
(E) Marketing, general management, supervision, finance,
training, accounting and administration; or
(F) An activity or function incidental or convenient to the
activity of generation or production of electric power.
(f) Drugs. -- The term "drugs" means and includes all drugs or
appliances sold to a purchaser upon prescription of a physician or
dentist and any other professional person licensed to prescribe.
(g) Generation or production of electric power. -- The term
"generation or production of electric power" means the generation,
production of electric power engaged in by persons who were subject
to the business and occupation tax formerly imposed by section two,
two-d, two-m, two-n or two-o, article thirteen of this chapter
before their repeal in the year two thousand four.
(h) Gross proceeds. -- The term "gross proceeds" means the
amount received in money, credits, property or other consideration
from sales and services within this state, without deduction on
account of the cost of property sold, amounts paid for interest or
discounts or other expenses whatsoever. Losses may not be
deducted, but any credit or refund made for goods returned may be
deducted.
(i) Licensed health care services. -- The term "licensed
health care services" means those services for which a person is
licensed by this state to act as a health care provider as defined
in section three, article twenty-six of this chapter, as in effect
on the first day of June, one thousand nine hundred ninety-one.
(j) Manufacturing. -- The term "manufacturing" means a systematic operation or integrated series of systematic operations
engaged in as a business or segment of a business which transforms
or converts tangible personal property by physical, chemical or
other means into a different form, composition or character from
that in which it originally existed.
(k) Natural resource production. -- The term "natural resource
production" means, except for oil and gas, the performance, by
either the owner of the natural resources or another, of the act or
process of exploring, developing, severing, extracting, reducing to
possession and loading for shipment and shipment for sale, profit
or commercial use of any natural resource products and any
reclamation, waste disposal or environmental activities associated
therewith and the construction, installation or fabrication of
ventilation structures, mine shafts, slopes, boreholes, dewatering
structures, including associated facilities and apparatus, by the
producer or others, including contractors and subcontractors, at a
coal mine or coal production facility. For the natural resources
oil and gas, "natural resource production" means the performance,
by either the owner of the natural resources, a contractor or a
subcontractor, of the act or process of exploring, developing,
drilling, well-stimulation activities such as logging, perforating
or fracturing, well-completion activities such as the installation
of the casing, tubing and other machinery and equipment and any
reclamation, waste disposal or environmental activities associated therewith, including the installation of the gathering system or
other pipeline to transport the oil and gas produced or
environmental activities associated therewith and any service work
performed on the well or well site after production of the well has
initially commenced. All work performed to install or maintain
facilities up to the point of sale for severance tax purposes would
be included in the term "natural resources production" and subject
to the direct use concept. "Natural resource production" includes
the performance or furnishing of work, or materials or work, in
fulfillment of a contract for the construction, alteration, repair,
decoration or improvement of a new or existing building or
structure, or any part thereof, or for the alteration, improvement
or development of real property, by persons other than those
otherwise directly engaged in the activities specifically set forth
in this subsection as "natural resource production."
(l) Person or persons. -- The terms "person" and "persons"
means any individual, firm, partnership, joint venture, joint stock
company, association, public or private corporation, cooperative,
estate, trust, receiver, executor, administrator, other fiduciary,
court-appointed representative, state or its political subdivisions
or agency of either, or any group or combination of the same acting
as a unit, and the plural as well as the singular number.
(m) Purchaser. -- The term "purchaser" means a person who
purchases tangible personal property or a service subject to the tax imposed by this article.
(n) Sale, sales and selling. -- The terms "sale", "sales" or
"selling" means and includes any transfer of the possession or
ownership of tangible personal property for a consideration,
including a lease or rental, when the transfer or delivery is made
in the ordinary course of the transferor's business and is made to
the transferee or his or her agent for consumption or use or any
other purpose. Unless the context provides otherwise, the terms
"sale," "sales" and "selling" shall also mean the rendering of a
service for a charge.
(o) Service and selected service. -- The terms "service" and
"selected service" include all activities engaged in for other
persons for a consideration, which involve the rendering of a
service as distinguished from the sale of tangible personal
property, but shall not include the services rendered by an
employee to his or her employer.
(p) Tax. -- The term "tax" means the general excise tax
imposed in this article.
(q) Tax Commissioner or Commissioner. -- The terms "Tax
Commissioner" or "Commissioner" are used interchangeably herein and
mean the Tax Commissioner of the State of West Virginia, or his or
her delegate.
(r) Taxpayer. -- The term "taxpayer" means any person liable
for the tax imposed by this article.
(s) Temporarily used in this state. -- The phrase "temporarily
used in this State" means a use made while passing through this
state in a relatively uninterrupted manner and not intended with
reference to any specific location within this state.
(t) Use. -- The term "use" means and includes the exercise of
any person of any right or power over tangible personal property
incident to the ownership, possession or enjoyment of such
property, or by any transaction in which possession of or the
exercise of any right or power over tangible personal property is
acquired for a consideration, including a lease, rental or
conditional sale of tangible personal property. As used in this
definition, the term "enjoyment" includes a person's right to
direct the disposition of the property, whether or not the person
has possession of the property. The term "use" does not include
the keeping, retaining or exercising of any right or power over
tangible personal property for the purpose of subsequently
transporting it outside this state for use thereafter solely
outside this state. Proof that tangible personal property was sold
for delivery in this state shall be prima facie evidence that such
property was purchased for use in this state. With respect to
services, the term "use" means and includes the direct receipt and
active application of the results and benefits of services.
(u) Vendor. -- The term "vendor" means any person engaged in
this state in businesses of furnishing services taxed by this article or making sales of, or leasing, tangible personal property,
for use as defined herein. Unless otherwise limited by federal
law, the term "vendor" shall include any person having or
maintaining, occupying or using, within this state, directly or by
a subsidiary, an office, distribution house, sales house,
warehouse, or other place of business, or by any agent (by whatever
name called) operating within this state under the authority of
that person or its subsidiary, regardless of whether such place of
business or agent is located in this state permanently or
temporarily, or whether such person or subsidiary is admitted to do
business within this state.
The term "vendor" also means and includes any of the
following:
(1) Any person engaged in business anywhere who solicits
orders from persons located in this state for the sale of tangible
personal property or taxable services by means of a
telecommunication or television shopping system which utilizes a
telephone or mail ordering system, including toll free telephone
numbers, reverse charge telephone systems or other telephone
ordering systems and which is intended by the retailer to be
broadcast by cable television or other means of broadcasting to
persons located in this state: Provided, That such soliciting
person has physical presence in this state in the form of
employees, offices, agents or sales outlets in this state, or any other presence that provides the necessary minimum contacts for a
Constitutionally sufficient nexus for a state to require such a
person to collect and remit excise taxes.
(2) Any person engaged in business anywhere who solicits
orders from persons located in this state for the sale of tangible
personal property or taxable services by means of advertising that
is broadcast from, printed at, or distributed from, a location in
this state if the advertising is primarily intended to be
disseminated to persons located in this state and is only
secondarily or incidentally disseminated to bordering
jurisdictions. For purposes of this paragraph, advertising which
is broadcast from a radio or television station located in this
state or is printed in or distributed by a newspaper published in
this state is rebuttably presumed to be primarily intended for
dissemination to persons located in this state: Provided, That
such soliciting person has physical presence in this state in the
form of employees, offices, agents or sales outlets in this state,
or any other presence that provides the necessary minimum contacts
for a Constitutionally sufficient nexus for a state to require such
person to collect and remit excise taxes.
(3) Any person engaged in business anywhere and who solicits
orders from persons located in this state for the sale of tangible
personal property or taxable services by mail if the solicitations
are substantial and recurring and if the retailer economically benefits from any banking, financing, debt collection,
telecommunication or marketing activities occurring in this state
or economically benefits from the location in this state of an
authorized installation, servicing or repair facility, regardless
of whether such facility is owned or operated by such person or by
a related or unrelated person: Provided, That such soliciting
person has physical presence in this state in the form of
employees, offices, agents or sales outlets in this state, or any
other presence that provides the necessary minimum contacts for a
Constitutionally sufficient nexus for a state to require such a
person to collect and remit excise taxes.
(4) Any person having a franchisee or licensee operating in
this state under that person's trade name, if the franchisee or
licensee is required to collect the tax imposed by this article:
Provided, That such person has physical presence in this state in
the form of employees, offices, agents or sales outlets in this
state, or any other presence that provides the necessary minimum
contacts for a Constitutionally sufficient nexus for a state to
require such a person to collect and remit excise taxes.
(5) Any person engaging in business anywhere who, pursuant to
a contract with a cable television operator located in this state,
solicits from persons located in this state orders for the sale of
tangible personal property or taxable services by means of
advertising which is transmitted or distributed over a cable television system in this state: Provided, That such retailer has
physical presence in this state in the form of employees, offices,
agents or sales outlets in this state, or any other presence that
provides the necessary minimum contacts for a Constitutionally
sufficient nexus for a state to require such person to collect and
remit excise taxes.
§11-15C-4. Imposition of tax; debt owed to this state; allocation
of obligations for charging, paying, collecting and
remitting tax; rate of tax.
(a) Imposition of tax. -- A general excise tax is hereby
imposed on the vendor for the privilege of selling tangible
personal property and of rendering services in this state and on
the purchaser for the privilege of using tangible personal property
and services in this state. The tax due to be remitted or paid
under this article shall, until fully remitted or paid, constitute
a debt owed by the taxpayer to this state.
(b) Allocation of obligations for charging, paying, collecting
and remitting the tax. -- It is the intent of this article that
the tax imposed herein shall be passed on by the vendor to, and
shall be paid by, the purchaser, in accordance with the following
allocation of obligations:
(1) Vendor obligations. --
(A) General. -- The vendor shall charge the purchaser for the
tax, shall collect the tax from the purchaser and shall remit the tax to the Tax Commissioner all as provided in this article. The
tax shall be added to and constitute a part of the sales price, and
shall be collectible as such by the vendor who shall account to the
Tax Commissioner for all tax paid by the purchaser.
(B) Tax kept separate from gross proceeds of sale. -- The
vendor shall keep the amount of tax paid separate from the gross
proceeds of sale exclusive of the tax unless authorized in writing
by the Tax Commissioner to keep such amount of tax in a different
manner. Where such authorization is given, the State's claim shall
be enforceable against and shall take precedence over all other
claims against the moneys commingled.
(C) Nonresidents. -- Every vendor engaging in business
anywhere and making sales of tangible personal property for
delivery into this state, or with the knowledge, directly or
indirectly, that the property or services he, she or it are
rendering are intended for use in this state, that are not exempted
under the provisions of section seven of this article, shall at the
time of making such sales or rendering such services, whether
within or without the state, collect the tax imposed by this
article from the purchaser, and give to the purchaser a receipt
therefor in the manner and form prescribed by the Tax Commissioner,
if the Tax Commissioner shall, by regulation, so prescribe.
Each such vendor shall list with the Tax Commissioner the name
and address of all his, her or its agents operating in this state, and the location of any and all distribution or sales houses or
offices or other places of business in this state. Any person
required to collect use tax under the provisions of this
subdivision shall be required to obtain a business registration
certificate, as provided in article twelve of this chapter, unless
the person does not have sufficient presence in this state so that
such registration would violate any provision of the Constitution
or laws of this state or of the United States.
The Tax Commissioner may, in his or her discretion, upon
application authorize the collection of the tax herein imposed by
any person not engaging in business within this state, who, to the
satisfaction of the Tax Commissioner, furnishes adequate security
to insure collection and payment of the tax. Such person shall be
issued, without charge, a permit to collect such tax in such
manner, and subject to such regulations and agreements as the Tax
Commissioner shall prescribe. When so authorized, it shall be the
duty of such person to collect the applicable tax, if any, upon all
tangible personal property and services sold to his, her or its
knowledge for use within this state, in the same manner and subject
to the same requirements as a vendor engaging in business within
this state. Such authority and permit may be cancelled when, at
any time, the Tax Commissioner considers the security inadequate,
or that such tax can more effectively be collected from the person
using such property in this state.
(D) Failure to collect and remit. -- If any vendor required to
collect and remit the tax to the Tax Commissioner fails to do so,
he, she or it shall be personally liable for such amount as he, she
or it failed to collect and remit: Provided, That, except where
the transaction is shown to be exempt from tax under section seven
of this article or is subject to the provisions of section nine of
this article, when a purchaser fails to pay the tax to the vendor,
the vendor may avoid such liability by reporting to the Tax
Commissioner, in writing with the return due to be filed for that
same period, the fact of such failure and the purchaser's name,
address and such other information as the Tax Commissioner may
require.
(E) Absorbing tax. -- It shall be unlawful for any vendor to
advertise or hold out or state to the public or to any purchaser,
consumer or user, directly or indirectly, that the tax or any part
thereof imposed by this article will be assumed or absorbed by the
vendor or that it will not be added to the price of the property
sold or service rendered, or if added that it or any part thereof
will be refunded. The Tax Commissioner shall have the power to
adopt and promulgate rules for adding such tax, or the equivalent
thereof, by providing different methods applying uniformly to
vendors within the same general classification for the purpose of
enabling such vendors to add and collect, as far as practicable,
the amount of such tax.
(2) Purchaser obligations. -- Any person who uses any tangible
personal property or service in this state upon which the tax
imposed by this article has not been paid to a vendor or directly
to the Tax Commissioner, is, unless the purchase or use of the
property or service is exempt hereunder, liable for the amount of
such tax. If any purchaser does not pay to the vendor the tax
imposed by section four of this article, or, in the case of a sale
made exempt from the tax, a purchaser fails to present to the
vendor an adequate written certification of the fact of, and basis
by which, the sale is not subject to this tax, or if the purchaser
signs or presents to the vendor a false certificate, or after
signing and presenting a proper certificate uses the items
purchased in such manner that the sale would be subject to the tax,
the purchaser shall be directly liable for the amount of tax
applicable to the transaction or transactions: Provided, That
nothing herein relieves any purchaser who owes the tax and who has
not paid the tax from liability therefor. In such cases the Tax
Commissioner may make an assessment against such purchaser, based
upon any information within his or her possession or that may come
into his or her possession. The assessment and notice thereof
shall be made and given in accordance with the provisions of
article ten of this chapter.
(3) Joint and separate liability. -- Unless and until the tax
due has been remitted by the vendor or paid by the purchaser to the Tax Commissioner, both the vendor and the purchaser shall remain
liable for the tax except as otherwise provided in this article:
Provided, That the tax shall only be collected once by the Tax
Commissioner.
(c) Rate of tax. -- Beginning on the first day of July, two
thousand five, the general excise tax imposed by this article shall
be at the rate of six cents on each dollar of sales or services:
Provided, That:
(1) Sales or use of gasoline and special fuel shall be taxable
at the rate provided in section seventeen of this article, and
(2) Sales of contracting services and materials to a property
owner by a person engaged in contracting for construction of a new
dwelling the property owner will occupy as his or her principal
personal residence which shall be taxable at the rate of three
cents on each dollar of sales or services.
(d) Application of rate of tax where price is in fractional
dollar amounts. -- There shall be no tax on sales where the
monetary consideration is five cents or less. The amount of the
tax for transactions subject to the six percent rate shall be
computed as follows:
(1) On each sale, where the monetary consideration is from six
cents to sixteen cents, both inclusive, one cent.
(2) On each sale, where the monetary consideration is from
seventeen cents to thirty-three cents, both inclusive, two cents.
(3) On each sale, where the monetary consideration is from
thirty-four cents to fifty cents, both inclusive, three cents.
(4) On each sale, where the monetary consideration is from
fifty-one cents to sixty-seven cents, both inclusive, four cents.
(5) On each sale, where the monetary consideration is from
sixty-eight cents to eighty-four cents, both inclusive, five cents.
(6) On each sale, where the monetary consideration is from
eighty-five cents to one dollar, both inclusive, six cents.
(7) If the sale price is in excess of one dollar, six cents on
each whole dollar of sale price, and upon any fractional part of a
dollar in excess of whole dollars as follows: One cent on the
fractional part of the dollar if less than seventeen cents; two
cents on the fractional part of the dollar if in excess of sixteen
cents but less than thirty-four cents; three cents on the
fractional part of the dollar if in excess of thirty-three cents
but less than fifty-one cents; four cents on the fractional part of
the dollar if in excess of fifty cents but less than sixty-eight
cents; five cents on the fractional part of the dollar if in excess
of sixty-seven cents but less than eighty-five cents; and six cents
on the fractional part of the dollar if in excess of eighty-four
cents. For example, the tax on sales from one dollar and one cent
to one dollar and sixteen cents, both inclusive, seven cents; on
sales from one dollar and seventeen cents to one dollar and
thirty-three cents, both inclusive, eight cents; on sales from one dollar and thirty-four cents to one dollar and fifty cents, both
inclusive, nine cents; on sales from one dollar and fifty-one cents
to one dollar and sixty-seven cents, both inclusive, ten cents; on
sales from one dollar and sixty-eight cents to one dollar and
eighty-four cents, both inclusive, eleven cents and on sales from
one dollar and eighty-five cents to two dollars, both inclusive,
twelve cents.
(e) Separate transactions aggregated for billing;
coin-operated vending devices. -- Separate sales, such as daily or
weekly deliveries, shall not be aggregated for the purpose of
computation of the tax even though such sales are aggregated in the
billing or payment therefor. Notwithstanding any other provision,
coin-operated amusement and vending machine sales shall be
aggregated for the purpose of computation of this tax.
§11-15C-5. Total amount collected is to be remitted.
No profit shall accrue to any person as a result of the
collection of the tax imposed by this article notwithstanding the
total amount of such taxes collected may be in excess of the amount
for which such person would be liable by the application of the
levy of six percent to the gross proceeds of his, her or its sales,
and the total of all taxes collected by such person shall be
returned and remitted to the Tax Commissioner as hereinafter
provided.
§11-15C-6. Vendor and purchaser must show sale or use exempt; presumption.
In the case of sales and uses exempt from the tax imposed by
this article, the burden of proving that a sale or use was exempt
from the tax shall be upon both the purchaser and the vendor,
unless in the case of the vendor he, she or it takes from the
purchaser a certificate signed by and bearing the address of the
purchaser and setting forth the reason for the exemption and
substantially in the form prescribed by the Tax Commissioner. To
prevent evasion, it shall be presumed that all sales and uses are
subject to the tax until the contrary is clearly established in a
particular case.
§11-15C-7. Exemptions.
(a) Exemptions for which exemption certificate may be issued.
-- A person having a right or claim to any exemption set forth in
this subsection may, in lieu of paying the tax imposed by this
article and filing a claim for refund, execute a certificate of
exemption, in the form required by the Tax Commissioner, and
deliver it to the vendor of the property or service, in the manner
required by the Tax Commissioner. However, the Tax Commissioner
may, by rule, specify those exemptions authorized in this
subsection for which exemption certificates are not required. The
following sales or uses of tangible personal property and services
are exempt as provided in this subsection:
(1) School textbooks. -- Sales and use of textbooks required to be used in any of the schools of this state or in any
institution in this state which qualifies as a nonprofit or
educational institution subject to the West Virginia Department of
Education and the Arts, the board of trustees of the university
system of West Virginia or the board of directors for colleges
located in this state;
(2) Government purchases. -- Purchases and uses of property
and services by this state, its institutions or subdivisions,
governmental units, institutions or subdivisions of other states:
Provided, That the law of the other state allows the same exemption
to governmental units or subdivisions of this state and to the
United States, including agencies of federal, state or local
governments for distribution in public welfare or relief work;
(3) Certain sales to churches. -- Sales and use of property or
services to churches which make no charge whatsoever for the
services they render: Provided, That the exemption granted in this
subdivision applies only to services, equipment, supplies, food for
meals and materials directly used or consumed by these
organizations and does not apply to purchases of gasoline or
special fuel;
(4) Certain purchases by certain nonprofit and charitable
organizations. -- Purchases and use of tangible personal property
or services by a corporation or organization which is exempt from
federal income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, and which is:
(A) A church or a convention or association of churches as
defined in Section 170 of the Internal Revenue Code of 1986, as
amended;
(B) An elementary or secondary school which maintains a
regular faculty and curriculum and has a regularly enrolled body of
pupils or students in attendance at the place in this state where
its educational activities are regularly carried on;
(C) A corporation or organization which annually receives more
than one half of its support from any combination of gifts, grants,
direct or indirect charitable contributions or membership fees;
(D) An organization which has no paid employees and its gross
income from fund raisers, less reasonable and necessary expenses
incurred to raise the gross income (or the tangible personal
property or services purchased with the net income), is donated to
an organization which is exempt from income taxes under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended;
(E) A youth organization, such as the Girl Scouts of the
United States of America, the Boy Scouts of America or the YMCA
Indian Guide/Princess Program and the local affiliates thereof,
which is organized and operated exclusively for charitable purposes
and has as its primary purpose the nonsectarian character
development and citizenship training of its members;
(F) For purposes of this subsection:
(i) The term "support" includes, but is not limited to:
(I) Gifts, grants, contributions or membership fees;
(II) Gross receipts from fund raisers which include receipts
from admissions, sales of merchandise, performance of services or
furnishing of facilities in any activity which is not an unrelated
trade or business within the meaning of Section 513 of the Internal
Revenue Code of 1986, as amended;
(III) Net income from unrelated business activities, whether
or not the activities are carried on regularly as a trade or
business;
(IV) Gross investment income as defined in Section 509(e) of
the Internal Revenue Code of 1986, as amended;
(V) Tax revenues levied for the benefit of a corporation or
organization either paid to or expended on behalf of the
organization; and
(VI) The value of services or facilities (exclusive of
services or facilities generally furnished to the public without
charge) furnished by a governmental unit referred to in Section
170(c)(1) of the Internal Revenue Code of 1986, as amended, to an
organization without charge. This term does not include any gain
from the sale or other disposition of property which would be
considered as gain from the sale or exchange of a capital asset, or
the value of an exemption from any federal, state or local tax or
any similar benefit;
(ii) The term "charitable contribution" means a contribution
or gift to or for the use of a corporation or organization,
described in Section 170(c)(2) of the Internal Revenue Code of
1986, as amended; and
(iii) The term "membership fee" does not include any amounts
paid for tangible personal property or specific services rendered
to members by the corporation or organization;
(G) The exemption allowed by this subdivision does not apply
to purchases or use of gasoline or special fuel, or to purchases or
use of motor vehicles titled by the Division of Motor Vehicles
under the provisions of article three, chapter seventeen-a of this
code or to purchases of tangible personal property or services to
be used or consumed in the generation of unrelated business income
as defined in Section 513 of the Internal Revenue Code of 1986, as
amended: Provided, That the exemption granted in this subdivision
applies only to purchases and use of services, equipment, supplies
and materials used or consumed in the activities for which the
organizations qualify as tax exempt organizations under the
Internal Revenue Code and does not apply to purchases or use of
gasoline or special fuel or of motor vehicles titled by the
Division of Motor Vehicles under the provisions of article three,
chapter seventeen-a of this code;
(5) Isolated transactions. -- An isolated transaction in which
any otherwise taxable service or any tangible personal property is sold, transferred, offered for sale or delivered by the owner of
the property or by his or her representative for the owner's
account, the sale, transfer, offer for sale or delivery not being
made in the ordinary course of repeated and successive transactions
of like character by the owner or on his or her account by the
representative: Provided, That nothing contained in this
subdivision may be construed to prevent an owner who sells,
transfers or offers for sale tangible personal property in an
isolated transaction through an auctioneer from availing himself or
herself of the exemption provided in this subdivision, regardless
of where the isolated sale takes place. The Tax Commissioner may
propose a legislative rule for promulgation pursuant to article
three, chapter twenty-nine-a of this code which he or she considers
necessary for the efficient administration of this exemption;
(6) Sales for resale. -- Sales of services for resale as such
and of tangible personal property to a person for the purpose of
reselling the tangible personal property: Provided, That sales of
gasoline and special fuel by distributors and importers are taxable
except when the sale is to another distributor for resale:
Provided, however, That sales of building materials or building
supplies or other property to any person engaging in the activity
of contracting, as defined in this article, which is to be
installed in, affixed to or incorporated by that person or his or
her agent into any real property, building or structure is exempt under this subdivision;
(7) Prescription drugs, insulin and appliances. -- Sales and
use of drugs dispensed upon prescription and sales of insulin and
appliances to consumers for medical purposes;
(8) Licensed health care services. -- Charges to patients for
licensed health care services and for goods incidental to the
rendering of such services;
(9) Advertising. -- Sales and use of radio and television
broadcasting time, preprinted advertising circulars and newspaper
and outdoor advertising space for the advertisement of goods or
services;
(10) Casual and occasional sales by certain nonprofit
organizations. -- Casual and occasional sales of property or
services not conducted in a repeated manner or in the ordinary
course of repetitive and successive transactions of like character
by a corporation or organization which is exempt from tax under
subdivision (4) of this subsection on its purchases of tangible
personal property or services:
(A) For purposes of this subdivision, the term "casual and
occasional sales not conducted in a repeated manner or in the
ordinary course of repetitive and successive transactions of like
character" means sales of tangible personal property or services at
fund raisers sponsored by a corporation or organization which is
exempt, under subdivision (6) of this subsection, from payment of the tax imposed by this article on its purchases, when the fund
raisers are of limited duration and are held no more than six times
during any twelve-month period and "limited duration" means no more
than eighty-four consecutive hours; and
(B) The provisions of this subdivision apply to sales made
after the thirtieth day of June, two thousand five;
(11) Sales to certain private colleges. -- Sales of property
or services to a school which has approval from the board of
trustees of the university system of West Virginia or the Board of
Directors of the State College System to award degrees, which has
its principal campus in this state, and which is exempt from
federal and state income taxes under Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended: Provided, That sales of
gasoline and special fuel are taxable;
(12) Certain sales of mobile homes subject to reduced tax
rate. -- Sales of mobile homes to be used by purchasers as their
principal year-round residence and dwelling: Provided, That those
sales are subject to tax at the three-percent rate;
(13) Lottery tickets, materials and services. -- Sales of
lottery tickets, materials and services by licensed lottery sales
agents and lottery retailers authorized by the State Lottery
Commission, under the provisions of article twenty-two, chapter
twenty-nine of this code;
(14) Food stamps and WIC drafts. -- Any sales of tangible personal property or services lawfully paid for with food stamps
pursuant to the federal food stamp program codified in 7 U.S.C.
§2011 et seq. as amended, or with drafts issued through the West
Virginia special supplement food program for women, infants and
children codified in 42 U.S.C. §1786;
(15) Tickets for admission to certain school activities. --
Sales of tickets for admission to activities sponsored by
elementary and secondary schools located within this state;
(16) Sales between related business entities. -- The sale and
use of tangible personal property and the rendering and use of
services by one corporation, partnership or limited liability
company to or for another corporation, partnership or limited
liability company when the entities are members of the same
controlled group or are related taxpayers as defined in Section 267
of the Internal Revenue Code. "Control" means ownership, directly
or indirectly, of stock, partnership interests or membership
interests possessing fifty percent or more of the total combined
voting power of all classes of the stock of a corporation,
partnership interests of a partnership or membership interests of
a limited liability company entitled to vote or ownership, directly
or indirectly, of stock, equity interests or membership interests
possessing fifty percent or more of the value of the corporation,
partnership or limited liability company;
(17) Certain sales or purchases of food. -- Food for the following are exempt:
(A) Food used, purchased or sold by a public or private
school, school-sponsored student organizations or school-sponsored
parent-teacher associations to students enrolled in the school or
to employees of the school for consumption during normal school
hours; but not those sales of food made to the general public;
(B) Food used, purchased or sold by a public or private
college or university to students enrolled at the college or
university when the sales are made on a contract basis so that a
fixed price is paid for consumption of food products for a specific
period of time without respect to the amount of food product
actually consumed by the particular individual contracting for the
sale and no money is paid at the time the food product is served or
consumed;
(C) Food used, purchased or sold by a charitable or private
nonprofit organization, a nonprofit organization or a governmental
agency under a program to provide food to low-income persons at or
below cost;
(D) Food sold or used by a charitable or private nonprofit
organization, a nonprofit organization or a governmental agency
under a program operating in West Virginia for a minimum of five
years to provide food at or below cost to individuals who perform
a minimum of two hours of community service for each unit of food
purchased from the organization;
(E) Food sold in an occasional sale by a charitable or
nonprofit organization, including volunteer fire departments and
rescue squads, if the purpose of the sale is to obtain revenue for
the functions and activities of the organization and the revenue
obtained is actually expended for that purpose;
(F) Food sold or used by any religious organization at a
social or other gathering conducted by it or under its auspices, if
the purpose in selling the food is to obtain revenue for the
functions and activities of the organization and the revenue
obtained from selling the food is actually used in carrying on
those functions and activities: Provided, That purchases made by
the organizations are not exempt as a purchase for resale;
(18) Tax prohibited transactions. -- Sales and use of tangible
personal property or services to any person which this state is
prohibited from taxing under the laws of the United States or under
the Constitution of this state;
(19) Certain babysitting services. -- Sales of baby-sitting
services by individuals who baby-sit for a profit: Provided, That
the gross receipts of the individual from the performance of
baby-sitting services do not exceed five thousand dollars in a
taxable year;
(20) Certain government services and materials. -- Sales and
use of governmental services or governmental materials sold in the
normal course of government operations;
(21) Certain sales by volunteer fire and emergency rescue
organizations. -- Sales and use of tangible personal property and
services by volunteer fire departments and rescue squads that are
exempt from federal income taxes under Section 501(c)(3) or (c) (4)
of the Internal Revenue Code of 1986, as amended, if the sole
purpose of the sale is to obtain revenue for the functions and
activities of the organization and the revenue obtained is exempt
from federal income tax and actually expended for that purpose;
(22) Special district excise tax. -- Any sale, service or use
upon which a special district excise tax is paid, pursuant to the
provisions of section eleven, article thirteen-b, chapter eight of
this code;
(23) Property and services temporarily used in this state. --
All tangible personal property and services purchased in another
state but temporarily used in this state by a nonresident
individual, except gasoline or special fuel not contained in the
supply tank of a motor vehicle that is not a motor carrier;
(24) Residence or business moved to this state. -- All
tangible personal property and services purchased outside this
state for use outside this state by a nonresident person who, at
least six months thereafter, uses such property or services in this
state following the permanent establishment of his, her or its
business or residence in this state;
(b) Refundable exemptions. -- Any person having a right or claim to any exemption set forth in this subsection shall first pay
to the vendor the tax imposed by this article and then apply to the
Tax Commissioner for a refund or credit, or as provided in section
nine of this article, give to the vendor his, her or its West
Virginia direct pay permit number. The following sales of tangible
personal property and services are exempt from tax as provided in
this subsection:
(1) Sales to certain charitable organizations. -- Sales of
property or services to bona fide charitable organizations which
make no charge whatsoever for the services they render: Provided,
That the exemption granted in this subdivision applies only to
services, equipment, supplies, food, meals and materials directly
used or consumed by these organizations and does not apply to
purchases of gasoline or special fuel;
(2) Sales for direct use in certain production activities. --
Sales and use of services and of machinery, supplies, materials and
other tangible personal property directly used or consumed in the
activities of manufacturing, natural resource production,
agricultural production or generation or production of electric
power to persons engaged in the activities named in this
subdivision as a business: Provided, That this exemption does not
apply to purchases of gasoline or special fuel;
(3) Certain sales to certain fraternal or social
organizations. -- Sales of tangible personal property or services to nationally chartered fraternal or social organizations for the
sole purpose of free distribution in public welfare or relief work:
Provided, That sales of gasoline and special fuel are taxable;
(4) Certain sales to firefighting organizations. -- Sales and
use of services, including but not limited to those for
construction or improvement of real estate and for vehicle repair
and modification, and of tangible personal property, including, but
not limited to firefighting or station house equipment, to any
volunteer fire department organized and incorporated under the laws
of the State of West Virginia, if such services or property are
directly used or consumed for the public safety purposes of such
organizations: Provided, That sales of gasoline and special fuel
are taxable.
§11-15C-8. Exemptions; exceptions for sales of liquors and wines
to private clubs.
The exemption provided in this article for sales of tangible
personal property for the purpose of resale in the form of tangible
personal property shall not apply to persons or organizations
licensed under authority of article seven, chapter sixty of this
code for the purchase of liquor or wines for resale either from the
Alcohol Beverage Control Commissioner or from retail liquor
licensees licensed under authority of article three-a, chapter
sixty of this code.
§11-15C-9. Direct pay permits.
(a) Authorized. -- Notwithstanding any other provision of this
article, the Tax Commissioner may, pursuant to rules promulgated by
him or her in accordance with article three, chapter twenty-nine-a
of this code, authorize a person that is a purchaser, user,
distributor or lessee to which sales or leases of tangible personal
property are made or services provided, to pay any tax imposed by
this article directly to the Tax Commissioner and waive the
collection of the tax by that person's vendor. No such authority
shall be granted or exercised except upon application to the Tax
Commissioner and after issuance by the Tax Commissioner of a direct
pay permit. Each direct pay permit granted pursuant to this
section is valid until surrendered by the holder or canceled for
cause by the Commissioner. The Commissioner shall prescribe by
rules promulgated in accordance with article three, chapter
twenty-nine-a of this code, those activities which will cause
cancellation of a direct pay permit issued pursuant to this
section. Upon issuance of a direct pay permit, payment of the tax
imposed or assertion of the exemptions allowed by this article on
sales and leases of tangible personal property and sales of taxable
services from the vendors of the personal property or services
shall be made directly to the Tax Commissioner by the permit
holder.
(b) Returns. -- On or before the fifteenth day of each month,
every permit holder shall make and file with the Tax Commissioner a general excise tax direct pay permit return for the preceding
month in the form prescribed by the Tax Commissioner showing the
total value of the tangible personal property used, the amount of
taxable services purchased, the amount of general excise tax due
from the permit holder, which shall be paid to the Tax Commissioner
with the return, and any other information as the Tax Commissioner
considers necessary: Provided, That if the amount of tax due
averages less than two hundred fifty dollars per month, the Tax
Commissioner may permit the filing of quarterly returns in lieu of
monthly returns and the amount of tax shown on the returns to be
due shall be remitted on or before the fifteenth day following the
close of the calendar quarter; and if the amount of tax due
averages less than one hundred fifty dollars per calendar quarter,
the Tax Commissioner may permit the filing of an annual direct pay
permit return and the amount of tax shown on the return to be due
shall be remitted on or before the last day of January each year:
Provided, however, That the Tax Commissioner may, by nonemergency
legislative rules promulgated pursuant to article three, chapter
twenty-nine-a of this code, change the minimum amounts established
in this subsection. The Tax Commissioner, upon written request by
the permit holder, may grant a reasonable extension of time, upon
such terms as the Tax Commissioner may require, for the making and
filing of direct pay permit returns and paying the tax due.
Interest on the tax shall be chargeable on every extended payment at the rate specified in section seventeen, article ten of this
chapter.
(c) Term of permit. -- A permit issued pursuant to this
section is valid until expiration of the taxpayer's registration
year under article twelve of this chapter. This permit is
automatically renewed when the taxpayer's business registration
certificate is issued for the next succeeding fiscal year, unless
the permit is surrendered by the holder or canceled for cause by
the Tax Commissioner.
(d) Effect of holding permit. -- Persons who hold a direct
payment permit which has not been canceled are not required to pay
the tax to the vendor as otherwise provided in this article. In
lieu of paying the tax, such persons shall notify each vendor from
whom tangible personal property is purchased or leased or from whom
services are purchased of their direct payment permit number and
that the tax is being paid directly to the Tax Commissioner. Upon
receipt of the notice, the vendor is absolved from all duties and
liabilities imposed by this chapter for the collection and
remittance of the tax with respect to sales of tangible personal
property and sales of services to the permit holder. Vendors who
make sales upon which the tax is not collected by reason of the
provisions of this section shall maintain records in such manner
that the amount involved and identity of each purchaser may be
ascertained.
(e) Termination of permit. -- Upon the expiration,
cancellation or surrender of a direct payment permit, the
provisions of this chapter, without regard to this section, will
thereafter apply to the person who previously held the permit, and
that person shall promptly notify, in writing, vendors from whom
tangible personal property or services are purchased or leased, of
the cancellation or surrender. Upon receipt of the notice, the
vendor is subject to the provisions of this chapter, without regard
to this section, with respect to all sales, distributions, leases
or storage of tangible personal property, thereafter made to or for
that person.
§11-15C-10. Apportionment of gross proceeds.
(a) Exempt and taxable uses. -- Whenever a taxpayer will use
purchased or leased tangible personal property, a service or the
results of a service for both exempt and nonexempt purposes, to
determine the portion of the gross proceeds paid to the vendor for
such property or service upon which the tax imposed by this article
shall apply, the gross proceeds shall be apportioned between the
exempt and taxable uses in a manner established as reasonable by
the Tax Commissioner by regulations the Tax Commissioner may
prescribe.
(b) Uses inside and outside this state. -- Whenever a person
uses purchased or leased tangible personal property, a service or
the results of a service both inside and outside this state, to determine the portion of the gross proceeds paid to the vendor for
such property or service upon which the tax imposed by this article
shall apply, the gross proceeds shall be apportioned between the
in-state and out-of-state uses in a manner established as
reasonable by the Tax Commissioner by regulations the Tax
Commissioner may prescribe.
§11-15C-11. Agreements by competing taxpayers.
To provide uniform methods of adding the average equivalent of
the tax to the selling price in each sale or transaction subject to
the tax, appropriate rules, except as otherwise herein provided,
may be agreed upon or adopted by competing taxpayers or
associations of taxpayers, except that all collections shall be
made on the basis of the total transaction at the time of sale,
without regard to the value of the separate items making up the
total amount of the sale. Such rules, if they do not involve price
fixing, shall not be deemed illegal as in restraint of trade or
commerce. The Tax Commissioner shall cooperate in formulating such
rules, and, in the event appropriate rules are not submitted to him
or her within thirty days after this article takes effect, or
within a reasonable extended period fixed by the Tax Commissioner,
he or she shall formulate and promulgate appropriate rules to
effectuate the purpose of this section.
§11-15C-12. Collection of tax when sale on credit.
A vendor doing business wholly or partially on a credit basis shall require the purchaser to pay the full amount of tax due upon
a credit sale at the time such sale is made or within thirty days
thereafter.
§11-15C-13. When separate records of sales required.
Any vendor engaged in a business making sales or rendering
services subject to the Tax imposed under this article, who is at
the same time engaged in some other kind of business making sales
or rendering services, not taxable under this article, shall keep
records to show separately the transactions used in determining the
tax base herein taxed. In the event such person fails to keep such
separate records there shall be levied upon him or her a tax based
upon the entire gross proceeds of both or all of his or her
businesses.
§11-15C-14. Sales to affiliated companies or persons.
In determining gross proceeds of sales from one to another of
two or more related or affiliated persons, or under other
circumstances where as a result of the relationship or affiliation
between the vendor and purchaser the gross proceeds from a sale are
not indicative of the true value of the subject matter of the sale,
the Tax Commissioner shall prescribe uniform and equitable rules
for determining the amount upon which the tax shall be imposed,
corresponding as nearly as possible to gross proceeds from the sale
of similar products or services of like quality or character, where
no common interest exists between the parties.
§11-15C-15. Tax return and payment; installments; exception;
annual return; credit; consolidated returns;
extension.
(a) Monthly installments. -- Subject to the exceptions set
forth in subsection (b) of this section, the taxes imposed by this
article shall be due and payable in monthly installments, on or
before the fifteenth day of the month next succeeding the month in
which the tax accrued. The taxpayer shall, on or before the
fifteenth day of each month, make out and mail to the Tax
Commissioner a return for the preceding month, in the form
prescribed by the Tax Commissioner, showing: (1) The total gross
proceeds of his, her or its business for that month; (2) the gross
proceeds of his, her or its business upon which the tax is based;
(3) the amount of the tax for which he, she or it is liable; and
(4) any further information necessary in the computation and
collection of the tax which the Tax Commissioner may require. A
remittance for the amount of the tax shall accompany the return.
(b) Accelerated installment. --
(1) Taxpayers whose average monthly installments of tax for
the previous calendar year exceeds one hundred thousand dollars,
shall remit the tax attributable to the first fifteen days of June
each year on or before the twenty-third day of said month of June.
(2) For purposes of complying with subdivision (1) of this
subsection (b), the taxpayer shall remit an amount equal to the amount of tax imposed by this article on actual taxable sales of
tangible personal property and taxable services during the first
fifteen days of June or, at the taxpayer's election, the taxpayer
may remit an amount equal to fifty percent of the taxpayer's
liability for tax under this article on taxable sales of tangible
personal property and services made during the preceding month of
May.
(3) For a business which has not been in existence for a full
calendar year, the total tax due from the business during such
prior calendar year shall be divided by the number of months,
including fractions of a month, that it was in business during such
prior calendar year; and if that amount exceeds one hundred
thousand dollars, the tax attributable to the first fifteen days of
June each year shall be remitted on or before the twenty-third day
of said month of June as provided in subdivision (2) of this
subsection (b).
(4) When a taxpayer required to make an advanced payment of
tax under subdivision (1) of this subsection (b) makes out its
return for the month of June, which is due on the fifteenth day of
July, such taxpayer may claim as a credit against its liability
under this article for tax on taxable transactions during the month
of June, the amount of the advanced payment of tax made under
subdivision (1) of this subsection (b).
(c) Exceptions. --
(1) When the total tax remittance for which a person is liable
does not exceed an average monthly amount over the taxable year of
two hundred fifty dollars, he, she or it may pay the tax and make
a quarterly return on or before the fifteenth day of the first
month in the next succeeding quarter in lieu of monthly returns:
Provided, That the Tax Commissioner may, by nonemergency
legislative rules promulgated pursuant to article three, chapter
twenty-nine-a of this code, change the minimum amount established
in this subsection.
(2) When the total tax remittance for which a person is liable
does not in the aggregate exceed six hundred dollars for the
taxable year, he, she or it may pay the tax and make an annual
return on or before the fifteenth day of the first month next
succeeding the end of the taxable year: Provided, That the Tax
Commissioner may, by nonemergency legislative rules promulgated
pursuant to article three, chapter twenty-nine-a of this code,
change the minimum amount established in this subsection.
(3) In addition to the provisions of paragraphs (1) and (2) of
this subsection, the Tax Commissioner may, upon written request,
also authorize a taxpayer whose books and records are not kept on
a monthly basis to file returns at times other than those specified
in subsection (a) of this section, but in no event shall a taxpayer
make less than one return a calendar month, except as provided in
this subsection, or as may be authorized in writing by the Tax Commissioner.
(d) Annual return. -- On or before thirty days after the end
of the tax year, each person liable for the payment of any tax due
under this article shall make and file an annual return in such
form as may be required by the Tax Commissioner, showing:
(1) Total gross proceeds of his, her or its business for
preceding tax year;
(2) Gross proceeds upon which the tax for that year was
computed, and
(3) Any other information necessary in the computation or
collection of the tax that the Tax Commissioner may require.
After deducting the amount of prior payments during the tax
year, the taxpayer shall forward the annual return along with
payment of any remaining tax, due for the preceding tax year, to
the Tax Commissioner. The taxpayer or his, her or its duly
authorized agent shall verify the return under oath.
(e) Credit. -- A person is entitled to a credit against the
tax imposed by this article on the use of a particular item of
tangible personal property or service equal to the amount, if any,
of excise tax lawfully paid to another state for the purchase of
the property or service: Provided, That the amount of credit
allowed shall not exceed the amount of tax imposed under the
article on the use of the property or service in this state.
For the purposes of this subsection:
(1) "Excise tax" includes a sales tax or compensating use tax
imposed on the use of tangible personal property or service by the
state in which the purchase occurred; and
(2) "State" includes the District of Columbia but does not
include any of the several territories organized by Congress.
(f) Consolidated returns. -- Whenever a person operates two or
more places of business of like character, he, she or it shall file
a consolidated monthly return, showing, for each place of business,
total sales and charges for rendering services, total transactions
subject to tax and total tax collections. In addition, a person
filing consolidated monthly returns shall attach to his, her or its
consolidated annual return a schedule showing, for each place of
business, total sales and charges for rendering services, total
transactions subject to tax and total tax collections.
(g) Extension. -- The Tax Commissioner for good cause shown,
may, on written application of a taxpayer, extend the time for
making any return required by the provisions of this article.
§11-15C-16. Liability of officers of corporation.
If a vendor is an association or corporation, the officers
thereof having actual control of the funds thereof, or any other
responsible person, shall be personally liable, jointly and
severally, for any default on the part of the association or
corporation in complying with the provisions of this article, and
payment of the tax and any additions to tax, penalties and interest thereon imposed with respect thereto by article ten of this chapter
may be enforced against them as against the association or
corporation which they represent.
§11-15C-17. Tax on gasoline and special fuel.
(a) General. -- All sales of gasoline or special fuel by
distributors or importers, except when to another distributor for
resale in this state, when delivery is made in this state, and all
other sales and use of gasoline or special fuel furnished or
delivered to purchasers in this state, shall be subject to the tax
imposed by this article, on the measure and at the rate set forth
in this section, notwithstanding any provision of this article to
the contrary. Sales of gasoline or special fuel by a person who
paid the tax imposed by this article on purchases of fuel, shall
not thereafter be again taxed under the provisions of this article.
This section shall be construed so that all gallons of gasoline or
special fuel sold and delivered, or delivered, in this state are
taxed one time: Provided, That gasoline or special fuel contained
in the supply tank of a motor vehicle that is not a motor carrier
shall not be taxable, except that gasoline or special fuel imported
in the supply tank or auxiliary tank of construction equipment,
mining equipment, track maintenance equipment or other similar
equipment, shall be taxed in the same manner as that in the supply
tank of a motor carrier.
(b) Measure of tax. -- The measure of tax on sales of gasoline or special fuel shall be the average wholesale price as
defined and determined in this section. For purposes of
maintaining revenue for highways, and recognizing that the tax
imposed by this article is generally imposed on gross proceeds from
sales to purchasers, whereas the tax on gasoline and special fuel
herein is imposed on the average wholesale price of such gasoline
and special fuel; in no case, for the purposes of taxation under
this article, shall such average wholesale price be deemed to be
less than ninety-seven cents per gallon of gasoline or special fuel
for all gallons of gasoline and special fuel sold or used during
the reporting period, notwithstanding any provision of this article
to the contrary.
To simplify determining the average wholesale price of all
gasoline and special fuel, the Tax Commissioner shall, effective
with the period beginning the first day of the month of the
effective date of this section and each first day of January,
annually, thereafter, determine the average wholesale price of
gasoline and special fuel for each annual period, on the basis of
sales data gathered for the preceding period of the first day of
July through the thirty-first day of October. Notification of the
average wholesale price of gasoline and special fuel shall be given
by the Tax Commissioner at least thirty days in advance of each
first day of January, annual period, by filing notice of the
average wholesale price in the state register, and by such other means as the Tax Commissioner considers reasonable: Provided, That
notice of the average wholesale price of gasoline and special fuel
for the first period shall be timely given if filed in the state
register on the effective date of this section.
All actions of the Tax Commissioner in acquiring data
necessary to establish and determine the average wholesale price of
gasoline and special fuel, in providing notification of his or her
determination prior to the effective date of any change in rate,
and in establishing and determining the average wholesale price of
fuel, may be made by the Tax Commissioner without compliance with
the provisions of article three, chapter twenty-nine-a of this
code. In any administrative or court proceeding brought to
challenge the average wholesale price of gasoline and special fuel
as determined by the Tax Commissioner, his or her determination
shall be presumed to be correct and shall not be set aside unless
it is clearly erroneous.
(c) Rate of tax. -- For purposes of this section, the rate of
tax shall be five cents for each dollar of the average wholesale
price which shall, in no case, be considered to be less than
ninety-seven cents per gallon for all gallons of gasoline and
special fuel taxable under this article.
(d) Computation of tax due from motor carriers. -- Every
person who operates or causes to be operated a motor carrier in
this state shall pay the tax imposed by this section on the average wholesale price of all gallons of gasoline or special fuel used in
the operation of any motor carrier within this state, under the
following rules:
(1) The total amount of gasoline or special fuel used in the
operation of the motor carrier within this state shall be that
proportion of the total amount of gasoline and special fuel used in
any motor carrier's operations within and without this state, that
the total number of miles traveled within this state bears to the
total number of miles traveled within and without this state.
(2) A motor carrier shall first determine the gross amount of
tax due under this section on the average wholesale value,
determined under subsection (b), of all gasoline and special fuel
used in the operation of the motor carrier within this state during
the preceding quarter, as if all gasoline and special fuel had been
purchased outside this state.
(3) Next, the taxpayer shall determine the total tax paid
under this article fifteen on all gasoline and special fuel
purchased in this state for use in the operation of the motor
carrier.
(4) The difference between (2) and (3) is the amount of tax
due under this article when (2) is greater than (3), or the amount
to be refunded or credited to the motor carrier when (3) is greater
than (2), which refund or credit shall be allowed in the same
manner and under the same conditions as a refund or credit is allowed for the tax imposed by article fourteen of this chapter.
(e) Definitions. -- For purposes of this section:
(1) "Aircraft" shall include any airplane or helicopter that
lands in this state on a regular or routine basis, and transports
passengers or freight.
(2) "Aircraft fuel" shall mean gasoline and special fuel
suitable for use in any aircraft engine.
(3) "Average wholesale price" shall mean the single, statewide
average per gallon wholesale price, rounded to the third decimal
(thousandth of a cent), exclusive of state and federal excise taxes
on each gallon of gasoline or diesel fuel, as determined by the Tax
Commissioner from information furnished by distributors of gasoline
or special fuel in this state, or such other information regarding
wholesale selling prices as the Tax Commissioner may gather, or a
combination of such information: Provided, That in no event shall
the average wholesale price be determined to be less than
ninety-seven cents per gallon of gasoline or special fuel.
(4) "Distributor" shall mean and include every person:
(A) Who produces, manufactures, processes or otherwise alters
gasoline or special fuel in this state for use or for sale; or
(B) Who engages in this state in the sale of gasoline or
special fuel for the purpose of resale or for distribution; or
(C) Who receives gasoline or special fuel into the cargo tank
of a tank wagon in this state for use or sale by such person.
(5) "Gasoline" shall mean and include any product commonly or
commercially known as gasoline, regardless of classification,
suitable for use as fuel in an internal combustion engine, except
special fuel as hereinafter defined, including any product obtained
by blending together any one or more products, with or without
other products, if the resultant product is capable of the same
use.
(6) "Importer" shall mean and include every person, resident
or nonresident, other than a distributor, who receives gasoline or
special fuel outside this state for use, sale or consumption within
this state, but shall not include the fuel in the supply tank of a
motor vehicle that is not a motor carrier.
(7) "Motor carrier" shall mean and include: (A) Any passenger
vehicle which has seats for more than nine passengers in addition
to the driver, any road tractor, tractor truck or any truck having
more than two axles, which is operated or caused to be operated, by
any person on any highway in this state using gasoline or special
fuel; and (B) any aircraft, barge or other watercraft, or
locomotive transporting passengers or freight in or through this
state.
(8) "Motor vehicle" shall mean and include automobiles, motor
carriers, motor trucks, motorcycles and all other vehicles or
equipment, engines or machines which are operated or propelled by
combustion of gasoline or special fuel.
(9) "Retail dealer of gasoline or special fuel" shall mean and
include any person not a distributor, who sells gasoline or special
fuel from a fixed location in this state to users.
(10) "Special fuel" shall mean and include any gas or liquid,
other than gasoline, used or suitable for use as fuel in an
internal combustion engine. The term "special fuel" shall include
products commonly known as natural or casinghead gasoline and shall
include gasoline and special fuel for heating any private
residential dwelling, building or other premises; but shall not
include any petroleum product or chemical compound such as alcohol,
industrial solvent, heavy furnace oil, lubricant, etc., not
commonly used nor practicably suited for use as fuel in an internal
combustion engine.
(11) "Supply tank" shall mean any receptacle on a motor
vehicle from which gasoline or special fuel is supplied for the
propulsion of the vehicle or equipment located thereon, exclusive
of a cargo tank. A supply tank includes a separate compartment of
a cargo tank used as a supply tank, and any auxiliary tank or
receptacle of any kind or cargo tank, from which gasoline or
special fuel is supplied for the propulsion of the vehicle, whether
or not such tank or receptacle is directly connected to the fuel
supply line of the vehicle.
(12) "Tank wagon" shall mean and include any motor vehicle or
vessel with a cargo tank or cargo tanks ordinarily used for making deliveries of gasoline or special fuel, or both, for sale or use.
(13) "User" shall mean any person who purchases gasoline or
special fuel for use or consumption.
(f) Tax due. -- The tax on sales of gasoline and special fuel
shall be paid by each taxpayer on or before the twenty-fifth day of
each month, by check, bank draft, certified check or money order,
payable to the Tax Commissioner for the amount of tax due for the
preceding month, notwithstanding any provision of this article to
the contrary.
(g) Monthly return. -- On or before the twenty-fifth day of
each month, the taxpayer shall make and file a return for the
preceding month showing such information as the Tax Commissioner
may require, notwithstanding any provision of this article to the
contrary.
(h) Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the Tax Commissioner may require
distributors, importers, motor carriers and other persons liable
for the tax imposed by this article on sales or use of gasoline or
special fuel, to file a combined return and make a combined payment
of the tax due under this article on sales or use of gasoline and
special fuel, and the tax due under articles fourteen or fourteen-a
of this chapter, on such gasoline and special fuel. In order to
encourage use of a combined return each month and the making of a
single payment each month for both taxes, the due dates of the return and taxes due under articles fourteen and fourteen-a of this
chapter are hereby changed from the last day of each month to the
twenty-fifth day of each month, notwithstanding any provisions in
articles fourteen or fourteen-a of this chapter to the contrary.
(g) Dedication of tax to highways. -- All tax collected under
the provisions of this section after deducting the amount of any
refunds lawfully paid, shall be deposited in the "road fund" in the
State Treasurer's Office, and shall be used only for the purpose of
construction, reconstruction, maintenance and repair of highways,
and payment of principal and interest on state bonds issued for
highway purposes: Provided, That notwithstanding any provision to
the contrary, any tax collected on the sale of aircraft fuel shall
be deposited in the State Treasurer's Office and transferred to the
State Aeronautical Commission to be used for the purpose of
matching federal funds available for the reconstruction,
maintenance and repair of public airports and airport runways.
(h) Construction. -- This section shall not be construed as
taxing any sale of gasoline or special fuel which this state is
prohibited from taxing under the Constitution of this state or the
Constitution or laws of the United States.
§11-15C-18. Receivership; bankruptcy; priority of tax.
In the distribution, voluntary or compulsory, in receivership,
bankruptcy or otherwise, of the property or estate of any person,
all taxes due and unpaid under this article shall be paid from the first money available for distribution in priority to all claims
and liens except taxes and debts due the United States which under
federal law are given priority over the debts and liens created by
this article. Any person charged with the administration or
distribution of any such property or estate who shall violate the
provisions of this section shall be personally liable for any taxes
accrued and unpaid under this article which are chargeable against
the person whose property or estate is in administration or
distribution.
§11-15C-19. Bond to secure payment.
The Tax Commissioner may, when in his or her judgment it is
necessary and advisable to do so in order to secure the collection
of the tax imposed under this article, authorize any person subject
to such tax and any vendor required or authorized to collect such
tax, to file with him or her a bond issued by a surety company
authorized to transact business in this state and approved by the
Insurance Commissioner as to solvency and responsibility, in such
amount as the Tax Commissioner may fix, to secure the payment of
any tax, additions to tax, penalties and interest due or which may
become due from such person or vendor. In lieu of such bond,
securities approved by the Tax Commissioner, in such amount as he
or she may prescribe, may be deposited with him or her, which
securities shall be kept in the custody of the State Treasurer and
may be sold by him or her at public or private sale, after notice to the depositor thereof, if it becomes necessary to do so in order
to recover any tax, additions to tax, penalties and interest due.
Upon any such sale, the surplus, if any, above the amounts due
under this article and article ten of this chapter, shall be
returned to the person or vendor who deposited the securities.
§11-15C-20. Keeping and preserving of taxpayer records;
nonresidents.
(a) General. -- Each taxpayer shall keep complete and accurate
records of taxable sales, purchases and of charges, together with
a record of the tax collected or paid thereon, and shall keep all
invoices, bills of lading and such other pertinent documents in
such form as the Tax Commissioner may by regulation require. Such
records and other documents shall be preserved for a period of time
not less than three years, unless the Tax Commissioner shall
consent in writing to their destruction within that period or by
order require that they be kept longer.
(b) Nonresidents. -- A nonresident person engaged in a
business within this state in conduct as a result of which the tax
imposed by this article becomes due, shall keep within this state
adequate records concerning the operation of the business, and all
taxes collected and paid in the course of the business. The amount
of the tax collected shall not be transmitted outside of this state
without the written consent of, and in accordance with the
conditions prescribed by the Tax Commissioner.
§11-15C-21. Records of Tax Commissioner; preservation of returns.
The Tax Commissioner shall keep full and accurate records of
all moneys received by him or her. He or she shall preserve all
returns filed with him or her hereunder for five years.
§11-15C-22. Proceeds of tax; appropriation of certain revenues.
(a) General. -- The proceeds of the tax imposed by this
article shall be deposited in the general revenue fund of the state
except as otherwise expressly provided in this article.
(b) School major improvement fund. -- After the payment or
commitment of the proceeds or collections of this tax for the
purposes set forth in section twenty-one of this article, on the
first day of each month, there shall be dedicated monthly from the
collections of this tax, the amount of four hundred sixteen
thousand six hundred sixty-seven dollars and the amount dedicated
shall be deposited on a monthly basis into the school major
improvement fund created pursuant to section six, article nine-d,
chapter eighteen of this code.
(c) School construction fund. -- After the payment or
commitment of the proceeds or collections of this tax for the
purposes set forth in section twenty-one of this article:
(1) On the first day of each month, there shall be dedicated
monthly from the collections of this tax, the amount of one million
four hundred sixteen thousand six hundred sixty-seven dollars and
the amount dedicated shall be deposited into the school construction fund created pursuant to section six , article nine-d,
chapter eighteen of this code.
(2) There shall also be dedicated from the collections of this
tax, an amount equal to any annual difference that may occur
between the debt service payment for the one thousand nine hundred
ninety-seven fiscal year for school improvement bonds issued under
the better school building amendment under the provisions of
article nine-c, chapter eighteen of this code and the amount of
funds required for debt service on these school improvement bonds
in any current fiscal year thereafter. This annual difference
shall be prorated monthly, added to the monthly deposit in
subdivision (1) of this subsection and deposited into the school
construction fund created pursuant to section six, article nine-d,
chapter eighteen of this code.
§11-15C-23. Severability.
If any of the provisions of this article are held invalid,
such invalidation shall not affect other provisions which can be
given effect without the invalid provision and to this end the
provisions of this article are declared to be severable.
§11-15C-24. General procedure and administration; criminal
penalties.
(a) General procedure and administration. -- Each and every
provision of articles ten and ten-a of this chapter shall apply to
the tax imposed by this article with like effect as if said articles were applicable only to the tax imposed by this article
and were set forth in extenso in this article.
(b) Criminal penalties. -- Each and every provision of
article nine of this chapter shall apply to the tax imposed by this
article with like effect as if said article nine were applicable
only to the tax imposed by this article and were set forth in
extenso in this article.
§11-15C-25. Tax in addition to other taxes and charges.
The tax imposed under this article shall be in addition to all
other taxes, licenses, fees or other charges to which the persons
taxed herein are subject under the law of this state.
§11-15C-26. Effective date.
This article shall take effect on the first day of January of
the first year following the year in which the voters ratify the
Fair Taxation Amendment to the Constitution of this state.
ARTICLE 19. SOFT DRINKS TAX.
§11-19-13. Prospective termination of tax, preservation for prior
periods.
Each and every provision of this article is repealed for all
tax periods beginning on the first day of January of the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state: Provided, That tax
liabilities, if any, arising for taxable periods prior to the first
day of January of the first year following the year in which the voters ratify the Fair Taxation Amendment to the Constitution of
this state shall be determined, administered, assessed and
collected as if the taxes imposed by this article had not been
repealed; and the rights and duties of taxpayers and the state
shall be fully and completely preserved.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-8i. Preservation of economic benefit of credit.
Notwithstanding the repeal of this article as provided in
section ninety-six of this article, any person subject to the tax
imposed under articles twenty-one-a or article twenty-eight of this
chapter and who has gained entitlement to the credit provided in
section eight-a of this article prior to the first day of January
of the first year following the year in which the voters ratify the
Fair Taxation Amendment to the Constitution of this state, shall be
allowed a credit against the tax imposed under articles
twenty-one-a or twenty-eight of this chapter in an amount and for
the tax year or years that will secure for such person an actual
economic benefit equal in amount to the economic benefit he or she
would have received by virtue of the credit provided in section
eight-a of this article but for section ninety-six of this article.
§11-21-96. Prospective termination of tax, preservation for prior
periods.
Each and every provision of this article is repealed for all
tax periods beginning on the first day of January of the first year following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state: Provided, That tax
liabilities, if any, arising for taxable periods prior to the first
day of January of the first year following the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of
this state shall be determined, administered, assessed and
collected as if the taxes imposed by this article had not been
repealed; and the rights and duties of taxpayers and the state
shall be fully and completely preserved.
ARTICLE 21A. PROGRESSIVE INCOME TAX.
PART I. GENERAL.
§11-21A-1. Short title; arrangement and classification.
This article may be cited as the "West Virginia Progressive
Income Tax Act." No inference, implication or presumption of
legislative construction shall be drawn or made by reason of the
location or grouping of any particular section or provision or
portion of this article, nor shall the descriptive matter or
headings relating to any part, section, subsection, or paragraph be
given any legal effect.
§11-21A-2. Legislative findings.
The Legislature finds that the existence of opportunities for
the people of the state to earn income from work and investment
depend, in part, on the protections and services of state
government and that, as a result, it is fair and appropriate that the persons who benefit from those opportunities should contribute
to the financial support of state government. The Legislature
further finds that a progressive tax on the income earned by those
persons is an imminently fair means by which such contributions
should be made.
The Legislature further finds that, because all persons who
purchase goods and services in this state contribute to the
financial support of state government through the general excise
tax imposed under article fifteen-c of this chapter, fairness would
also be served by exempting from further taxation the income of
those individuals and families that are below poverty levels
established by the federal government from time to time. Likewise,
the Legislature finds that those of lesser means whose prospects
for ever receiving greater levels of income are limited by age or
disability should not have to contribute any more of their income
to such financial support beyond the other taxes they also pay to
this state.
The Legislature further finds that the adoption by this state
for its progressive income tax purposes of the provisions of the
laws of the United States relating to the determination of income
for federal income tax purposes will: (1) Simplify preparation of
state income tax returns by taxpayers; (2) improve enforcement of
the state income tax through better use of information obtained
from federal income tax audits; and (3) aid interpretation of the state tax law through increased use of federal judicial and
administrative determinations and precedents.
The Legislature does, therefore declare that this article
twenty-one-a be construed in light of the foregoing findings so as
to accomplish the fairness in taxation aforesaid.
§11-21A-3. Imposition of tax.
(a)
Imposition of tax. -- A tax determined in accordance with
the rates hereinafter set forth in this article is hereby imposed
for each taxable year on the West Virginia taxable income of every
individual, estate and trust.
(b)
Partners and partnerships. -- A partnership as such shall
not be subject to tax under this article. Persons carrying on
business as partners shall be liable for tax under this article
only in their separate or individual capacities.
(c)
Associations taxable as corporations. -- An association,
trust or other unincorporated organization which is taxable as a
corporation for federal income tax purposes, shall not be subject
to tax under this article.
(d)
Exempt trusts and organizations. -- A trust or other
unincorporated organization which by reason of its purposes or
activities is exempt from federal income tax shall be exempt from
tax under this article (regardless of whether subject to federal
income tax on unrelated business taxable income).
(e)
Cross references. -- For definitions of West Virginia taxable income of:
(1) Resident individual, see section ten.
(2) Resident estate or trust, see section seventeen.
(3) Nonresident individual, see section thirty-one.
(4) Nonresident estate or trust, see section thirty-three.
§11-21A-4. Rate of tax, applicability; effect of subsequent rate
changes.
(a)
Rate of tax on individuals (except married individuals
filing separate returns), individuals filing joint returns, heads
of households, estates and trusts. -- The tax imposed by section
three of this article on the West Virginia taxable income of every
individual (except married individuals filing separate returns);
every individual who is a head of a household in the determination
of his or her federal income tax for the taxable year; every
husband and wife who file a joint return under this article; every
individual who is entitled to file his or her federal income tax
return for the taxable year as a surviving spouse; and every estate
and trust shall be determined in accordance with the following
table:
If the West Virginia taxable
income is:
|
The tax is:
|
Not over $40,000
|
5% of the taxable income; and
|
Over $40,000
|
$2,000.00 plus 6.5% of excess
over $40,000.
|
(b)
Rate of tax on married individuals filing separate
returns. -- In the case of husband and wife filing separate returns
under this article for the taxable year, the tax imposed by section
three of this article on the West Virginia taxable income of each
spouse shall be determined in accordance with the following table:
If the West Virginia taxable
income is:
|
The tax is:
|
Not over $20,000
|
5% of the taxable income; and
|
Over $20,000
|
$1,000.00 plus 6.5% of excess
over $20,000.
|
(c)
Applicability of this section. -- The provisions of this
section, as amended by this act, shall be applicable in determining
the rate of tax imposed by this article for all taxable years
beginning after the thirty-first day of December, two thousand
four.
(d)
Effect of rate changes during taxable year. -- (1) If any
rate of tax imposed by this article changes to become effective
after the thirty-first day of December, of a calendar year, and if
the taxable year includes the effective date of the change of rate
(unless that date is the first day of the taxable year) then: (A)
Tentative taxes shall be computed by applying the rate for the
period before the effective date of the change of rate, and the
rate for the period on and after such date, to the taxable income
for the entire taxable year; and (B) the tax for such taxable year shall be the sum of that proportion of each tentative tax which the
number of months in each period bears to the number of months in
the entire taxable year.
(2) For purposes of subdivision (1) of this subsection:
(A) If the rate changes for taxable years "beginning after" or
"ending after" a certain date, the following day shall be
considered the effective date of the change; and
(B) If a rate changes for taxable years "beginning on or
after" a certain date, that date shall be considered the effective
date of the change of rate.
§11-21A-5. Optional tax for certain resident individuals.
(a)
General. -- The Tax Commissioner may promulgate tables
enabling resident individuals who meet the conditions of this
section to compute their taxes under section three of this article
on the basis of their federal adjusted gross incomes.
(b)
Tables. -- The tables promulgated under this section
shall show the amounts of tax due under section three of this
article to the nearest two dollars, or such smaller amount as the
Tax Commissioner may establish.
(c)
Conditions for optional computation. -- The optional tax
computation under this section may be elected only if all the
following conditions are satisfied by the taxpayer, or by both
husband and wife whose federal income tax is determined on a joint
return:
(1) The taxpayer has elected to take the standard deduction
for federal income tax purposes or to pay the federal optional tax.
(2) The taxpayer has no items of income or deduction described
in sections eleven-b and eleven-d as an individual, as a partner,
or as a beneficiary of an estate or trust.
(3) The taxpayer's federal income tax is not reduced by
operation of:
(A) The federal alternative tax on long-term capital gains; or
(B) A federal provision which has the effect of taxing income
of the taxable year as if it were partly or wholly income of a
prior taxable year.
(4) The taxpayer satisfies such other conditions, not
inconsistent with the purposes of this section, as may be specified
by the Tax Commissioner.
(d)
Manner of election. -- The election by a taxpayer to
compute his or her tax under this section shall be made under
regulations of the Tax Commissioner.
(e)
Husband and wife computing West Virginia taxes separately.
--
(1) A husband or wife who files a separate federal return may
elect the optional tax computation under this section only if the
other spouse's tax under this article, if any, is determined under
this section.
(2) A husband and wife who file a joint federal return may not elect the optional tax computation under this section if they elect
to determine their West Virginia taxes separately.
§11-21A-6. Accounting periods and methods.
(a)
Accounting periods. -- A taxpayer's taxable year under
this article shall be the same as his or her taxable year for
federal income tax purposes.
(b)
Change of accounting periods. -- If a taxpayer's taxable
year is changed for federal income tax purposes, his or her taxable
year for purposes of this article shall be similarly changed. If
a taxable year of less than twelve months results from a change of
taxable year, the West Virginia personal exemptions shall be
prorated under regulations of the Tax Commissioner.
(c)
Accounting methods. -- A taxpayer's method of accounting
under this article shall be the same as his or her method of
accounting for federal income tax purposes. In the absence of any
method of accounting for federal income tax purposes, West Virginia
taxable income shall be computed under such method as in the
opinion of the Tax Commissioner clearly reflects income.
(d)
Change of accounting methods. --
(1) If a taxpayer's method of accounting is changed for
federal income tax purposes, his or her method of accounting for
purposes of this article shall be similarly changed.
(2) If a taxpayer's method of accounting is changed, other
than from an accrual to an installment method, any additional tax which results from adjustments determined to be necessary solely by
reason of the change shall not be greater than if such adjustments
were rateably allocated and included for the taxable year of the
change and the preceding taxable years, not in excess of two,
during which the taxpayer used the method of accounting from which
the change is made.
(3) If a taxpayer's method of accounting is changed from an
accrual to an installment method, any additional tax for the year
of such change of method and for any subsequent year which is
attributable to the receipt of installment payments properly
accrued in a prior year shall be reduced by the portion of tax for
any prior taxable year attributable to the accrual of such
installment payments, in accordance with regulations of the Tax
Commissioner.
§11-21A-7. Resident and nonresident defined.
(a)
Resident individual. -- Means an individual:
(1) Who is domiciled in this state, unless he or she maintains
no permanent place of abode in this state, maintains a permanent
place of abode elsewhere, and spends in the aggregate not more than
thirty days of the taxable year in this state; or
(2) Who is not domiciled in this state but maintains a
permanent place of abode in this state and spends in the aggregate
more than one hundred eighty-three days of the taxable year in this
state.
(b)
Nonresident individual. -- A nonresident individual means
an individual who is not a resident.
(c)
Resident estate or trust. -- A resident estate or trust
means:
(1) The estate of a decedent who at his or her death was
domiciled in this state;
(2) A trust created by will of a decedent who at his or her
death was domiciled in this state; or
(3) A trust created by, or consisting of property of, a person
domiciled in this state.
(d)
Nonresident estate or trust. -- A nonresident estate or
trust means an estate or trust which is not a resident.
§11-21A-8. Meaning of terms; medical savings accounts.
(a) Any term used in this article has the same meaning as when
used in a comparable context in the laws of the United States
relating to income taxes, unless a different meaning is clearly
required. Any reference in this article to the laws of the United
States means the provisions of the Internal Revenue Code of 1986,
as amended, and any other provisions of the laws of the United
States that relate to the determination of income for federal
income tax purposes. All amendments made to the laws of the United
States after the thirty-first day of December, two thousand four,
but prior to the first day of January, two thousand five, shall be
given effect in determining the taxes imposed by this article to the same extent those changes are allowed for federal income tax
purposes, whether the changes are retroactive or prospective, but
no amendment to the laws of the United States made on or after the
first day of January, two thousand five, shall be given any effect.
(b)
Medical savings accounts. -- The term "taxable trust" does
not include a medical savings account established pursuant to
section twenty, article fifteen, chapter thirty-three of this code
or section fifteen, article sixteen of said chapter. Employer
contributions to a medical savings account established pursuant to
said sections, are not "wages" for purposes of withholding under
section seventy-one of this article.
(c)
Surtax. -- The term "surtax" means the twenty percent
additional tax imposed on taxable withdrawals from a medical
savings account under section twenty, article fifteen, chapter
thirty-three of this code, and the twenty percent additional tax
imposed on taxable withdrawals from a medical savings account under
section fifteen, article sixteen of said chapter, which are
collected by the Tax Commissioner as tax collected under this
article.
§11-21A-9. Meaning of endorser, guarantor and accommodation.
Any person pledging his or her credit or collateral as an
endorser, guarantor, or accommodation to another person or
corporation for the purpose of assisting another in obtaining
credit shall not be, or construed to be, an investor in said borrower as to the amount so borrowed, nor shall any payments by
said borrower on the indebtedness be, or construed to be, dividend
to the endorser, guarantor or accommodation.
§11-21A-10. West Virginia taxable income of a resident individual.
(a)
General. -- The West Virginia taxable income of a resident
individual shall be his or her West Virginia adjusted gross income
less his or her West Virginia personal exemptions, as determined
under this part.
(b)
Husband and wife. --
(1) If the federal taxable income of husband and wife is
determined on a separate federal return, their West Virginia
taxable incomes shall be separately determined.
(2) If the federal taxable income of husband and wife is
determined on a joint federal return, or if neither files a federal
return:
(A) Their tax shall be determined on their joint West Virginia
taxable income; or
(B) Separate taxes may be determined on their separate West
Virginia taxable incomes if they so elect if they comply with the
requirements of the Tax Commissioner in setting forth information
on a single form or on separate forms, as may be required by the
Tax Commissioner.
(3) If either husband or wife is a resident and the other is
a nonresident, separate taxes shall be determined on their separate West Virginia taxable incomes on such single or separate forms as
may be required by the Tax Commissioner, unless both elect to
determine their joint West Virginia taxable income as if both were
residents.
§11-21A-11. West Virginia adjusted gross income of resident
individual.
(a)
General. -- The West Virginia adjusted gross income of a
resident individual means his or her federal adjusted gross income
as defined in the laws of the United States for the taxable year
with the modifications specified in this section.
(b)
Modifications increasing federal adjusted gross income. --
There shall be added to federal adjusted gross income unless
already included therein the following items:
(1) Interest income on obligations of any state other than
this state or of a political subdivision of any other state unless
created by compact or agreement to which this state is a party;
(2) Interest or dividend income on obligations or securities
of any authority, commission or instrumentality of the United
States, which the laws of the United States exempt from federal
income tax but not from state income taxes;
(3) Any deduction allowed when determining federal adjusted
gross income for federal income tax purposes for the taxable year
that is not allowed as a deduction under this article for the
taxable year;
(4) Interest on indebtedness incurred or continued to purchase
or carry obligations or securities the income from which is exempt
from tax under this article, to the extent deductible in
determining federal adjusted gross income;
(5) Interest on a depository institution tax-exempt saving
certificate which is allowed as an exclusion from federal gross
income under Section 128 of the Internal Revenue Code, for the
federal taxable year;
(6) The amount of a lump sum distribution for which the
taxpayer has elected under Section 402(e) of the Internal Revenue
Code of 1986, as amended, to be separately taxed for federal income
tax purposes; and
(7) Amounts withdrawn from a medical savings account
established by or for an individual under section twenty, article
fifteen or section fifteen, article sixteen, both of chapter
thirty-three of this code, that are used for a purpose other than
payment of medical expenses, as defined in those sections.
(c)
Modifications reducing federal adjusted gross income. --
There shall be subtracted from federal adjusted gross income to the
extent included herein:
(1) Interest income on obligations of the United States and
its possessions to the extent includable in gross income for
federal income tax purposes;
(2) Interest or dividend income on obligations or securities of any authority, commission or instrumentality of the United
States or of the State of West Virginia to the extent includable in
gross income for federal income tax purposes but exempt from state
income taxes under the laws of the United States or of the State of
West Virginia, including federal interest or dividends paid to
shareholders of a regulated investment company under Section 852 of
the Internal Revenue Code;
(3) Any amount included in federal adjusted gross income for
federal income tax purposes for the taxable year that is not
included in federal adjusted gross income under this article for
the taxable year;
(4) The amount of any refund or credit for overpayment of
income taxes imposed by this state, or any other taxing
jurisdiction, to the extent properly included in gross income for
federal income tax purposes;
(5) Contributions from any source to a medical savings account
established by or for the individual pursuant to section twenty,
article fifteen or section fifteen, article sixteen, chapter
thirty-three of this code, plus interest earned on the account, to
the extent includable in federal adjusted gross income for federal
tax purposes:
Provided, That the amount subtracted pursuant to
this subdivision for any one taxable year may not exceed two
thousand dollars plus interest earned on the account. For married
individuals filing a joint return, the maximum deduction is computed separately for each individual; and
(6) Any other income which this state is prohibited from
taxing under the laws of the United States.
(d)
Modification for West Virginia fiduciary adjustment. --
There shall be added to or subtracted from federal adjusted gross
income, as the case may be, the taxpayer's share, as beneficiary of
an estate or trust, of the West Virginia fiduciary adjustment
determined under section eighteen of this article.
(e)
Partners and S corporation shareholders. -- The amounts of
modifications required to be made under this section by a partner
or an
S corporation shareholder, which relate to items of income,
gain, loss or deduction of a partnership or an
S corporation, shall
be determined under section fifteen of this article.
(f)
Husband and wife. -- If husband and wife determine their
federal income tax on a joint return but determine their West
Virginia income taxes separately, they shall determine their West
Virginia adjusted gross incomes separately as if their federal
adjusted gross incomes had been determined separately.
§11-21A-12. Additional modification reducing federal adjusted
gross income.
In addition to amounts authorized to be subtracted from
federal adjusted gross income pursuant to subsection (c), section
eleven of this article, any payment made under a prepaid tuition
contract as provided under section seven, article thirty, chapter eighteen of this code, is also an authorized modification reducing
federal adjusted gross income, but only to the extent the amount is
not allowable as a deduction when arriving at the taxpayer's
federal adjusted gross income for the taxable year in which the
payment is made. This modification is available regardless of the
type of return form filed. The taxpayer may also elect to carry
forward the modification over a period not to exceed five taxable
years, beginning in the taxable year in which the payment was made.
§11-21A-13. Deduction for long-term care insurance.
For taxable years beginning on and after the first day of
January, two thousand five, in addition to amounts authorized to be
subtracted from federal adjusted gross income pursuant to
subsection (c), section eleven of this article, any payment during
the taxable year for premiums for a long-term care insurance policy
as defined in section four, article fifteen-a, chapter thirty-three
of this code that offers coverage to either the taxpayer, the
taxpayer's spouse, parent or a dependent as defined in Section 152
of the Internal Revenue Code of 1986, as amended, is an authorized
modification reducing federal adjusted gross income, but only to
the extent the amount is not allowable as a deduction when arriving
at the taxpayer's federal adjusted gross income for the taxable
year in which the payment is made.
§11-21A-14. West Virginia personal exemptions of a resident
individual.
(a)
General. -- For any tax imposed under the provisions of
this article with respect to any taxable year beginning on or after
the first day of January, two thousand five, a resident individual
shall be allowed a West Virginia exemption for each exemption for
which he or she is entitled to a deduction for the taxable year for
federal income tax purposes multiplied by the applicable federal
poverty amount reduced by: (1) The result of multiplying the
number of West Virginia exemptions claimed times twenty-five
percent of the federal poverty amount for each exemption allowed in
excess of two; and (2) reduced by twenty-five percent of the
federal poverty amount for each four thousand dollars by which the
taxpayer's West Virginia adjusted gross income exceeds forty
thousand dollars:
Provided, That the amount of each West Virginia
personal exemption shall not be less than two thousand twelve
dollars.
(b)
Applicable federal poverty amount. -- For purposes of this
article, the term "applicable federal poverty amount" means the
amount last published by the United States Department of Health and
Human Services, prior to the first day of January of any taxable
year, which represents the amount of income constituting the
federal poverty line for a single-person household unit.
(c)
Elderly and disabled persons. -- Persons who have attained
the age of sixty-five years or who are totally and permanently
disabled shall be entitled to two West Virginia personal exemptions for themselves the amounts of which shall be determined as provided
in subsection (a) of this section.
§11-21A-15. Resident partners.
(a)
General. -- In determining West Virginia adjusted gross
income and West Virginia taxable income of a resident partner, any
modification described in section eleven-b, eleven-c or eleven-d,
which relates to an item of partnership income, gain, loss or
deduction shall be made in accordance with the partner's
distributive share, for federal income tax purposes, of the items
to which the modifications relate. Where a partner's distributive
share of any such item is not required to be taken into account
separately for federal income tax purposes, the partner's
distributive share of such item shall be his or her distributive
share for federal income tax purposes of partnership taxable income
or loss generally.
(b)
Character of items. -- Each item of partnership income,
gain, loss, or deduction shall have the same character for a
partner under this article as for federal income tax purposes.
Where an item is not characterized for federal income tax purposes,
it shall have the same character for a partner as if realized
directly from the source from which realized by the partnership, or
incurred in the same manner as incurred by the partnership.
(c)
West Virginia tax avoidance or evasion. -- Where a
partner's distributive share of an item of partnership income, gain, loss or deduction is determined for federal income tax
purposes by special provision in the partnership agreement with
respect to such item, and where the principal purpose of such
provision is the avoidance or evasion of tax under this article,
the partner's distributive share of such item, and any modification
required with respect thereto shall be determined as if the
partnership agreement made no special provision with respect to
such item.
§11-21A-16. Resident shareholders of S corporations.
(a)
S corporation shareholder's modifications. -- In
determining West Virginia adjusted gross income and West Virginia
taxable income of a resident
S corporation shareholder, any
modification described in section eleven-b, eleven-c or eleven-d,
which relates to an item of income, gain, loss or deduction shall
be made in accordance with the S corporation shareholder's pro rata
share, for federal income tax purposes, of the items to which the
modifications relate. Where a shareholder's pro rata share of any
such item is not required to be taken into account separately for
federal income tax purposes, the shareholder's pro rata share of
such item shall be his or her pro rata share for federal income tax
purposes of S corporation taxable income or loss generally.
(b)
Character of items. -- Each item of S corporation income,
gain, loss or deduction shall have the same character for a
shareholder under this article as for federal income tax purposes. Where an item is not characterized for federal income tax purposes,
it shall have the same character for a shareholder as if realized
directly from the source from which realized by the S corporation,
or incurred in the same manner as incurred by the S corporation.
§11-21A-17. West Virginia taxable income of resident estate or
trust.
The West Virginia taxable income
of a resident estate or trust
means its federal taxable income
for the taxable year as defined in
the laws of the United States and section eight of this article for
the taxable year, with the following modifications:
(a) There shall be subtracted six hundred dollars as the West
Virginia personal exemption of the estate or trust, and there shall
be added the amount of its federal deduction for a personal
exemption.
(b) There shall be added or subtracted, as the case may be,
the share of the estate or trust in the West Virginia fiduciary
adjustment determined under section nineteen of this article.
(c) There shall be added to federal adjusted gross income,
unless already included therein, the amount of a lump sum
distribution for which the taxpayer has elected under section
402(e) of the Internal Revenue Code of one thousand nine hundred
eighty-six, as amended, to be separately taxed for federal income
tax purposes.
§11-21A-18. Share of resident estate, trust or beneficiary in West Virginia fiduciary adjustment.
(a)
General. -- An adjustment shall be made in determining
West Virginia taxable income of a resident estate or trust under
section seventeen, or West Virginia adjusted gross income of a
resident beneficiary of any estate or trust under subsection (d),
section eleven of this article, in the amount of the share of each
in the West Virginia fiduciary adjustment as determined in this
section.
(b)
Definition. -- The West Virginia fiduciary adjustment
shall be the net amount of the modifications described in section
eleven (b), (c) and (d), which relate to items of income, gain,
loss or deduction of an estate or trust. Such net amount shall not
include any modification described in subdivision (3), subsection
(c), section eleven of this article with respect to gains from the
sale or other disposition of property, to the extent such gains are
excluded from distributable net income of the estate or trust for
federal income tax purposes.
(c) Shares of West Virginia fiduciary adjustment. -
(1) The respective shares of an estate or trust and its
beneficiaries (including, solely for the purpose of this
allocation, nonresident beneficiaries) in the West Virginia
fiduciary adjustment shall be in proportion to their respective
shares of distributable net income of the estate or trust for
federal income tax purposes.
(2)
If the distributable net income for the taxable year of
the estate or trust is zero, the share of each beneficiary in the
West Virginia fiduciary adjustment shall be in proportion to his or
her share of the estate or trust is zero, the share of each
beneficiary in the West Virginia fiduciary adjustment shall be in
proportion to his or her share of the estate or trust income for
such year, under local law or the governing instrument, which is
distributed within such year, or is required to be distributed
currently. Any balance of the West Virginia fiduciary adjustment
shall be allocated to the estate or trust.
(d)
Alternate attribution of modifications. -- The Tax
Commissioner may, on application, authorize the use of such other
methods of determining to whom the items comprising the fiduciary
adjustment shall be attributed, as may be appropriate and
equitable, on such terms and conditions as he or she may require.
§11-21A-19. Credit for income tax of another state.
(a)
General. -- A resident shall be allowed a credit against
the tax otherwise due under this article for any income tax imposed
for the taxable year by another state of the United States or by
the District of Columbia, upon income both derived therefrom and
subject to tax under this article.
(b)
Limitations. --
(1) The credit under this section shall not exceed the
percentage of the tax otherwise due under this article determined by dividing the portion of the taxpayer's West Virginia income
subject to taxation by such other jurisdiction by the total amount
of the taxpayer's West Virginia income.
(2) The credit under this section shall not reduce the tax
otherwise due under this article to an amount less than would have
been due if the income subject to taxation by such other
jurisdiction were excluded from the taxpayer's West Virginia
income.
(c)
Exception. -- No credit shall be allowed under this
section for tax of a jurisdiction which allows residents of this
state a credit against the taxes imposed by such other jurisdiction
for the tax under this article, if such other credit is
substantially similar to the credit granted by section forty.
(d)
Definition. -- For purposes of this section West Virginia
income means:
(1) The West Virginia adjusted gross income of an individual;
or
(2) The amount of the income of an estate or trust, determined
as if the estate or trust were an individual computing his or her
West Virginia adjusted gross income under section eleven.
§§11-21A-20 to 11-21A-29. Reserved for future use.
PART III. NONRESIDENT AND PART-YEAR RESIDENTS.
§11-21A-30. Computation of tax on income of nonresidents and
part-year residents.
(a)
Computation of tax. -- For taxable years beginning after
the thirty-first day of December, two thousand five, the tax due
under this article on taxable income derived from sources in this
state by a nonresident individual, estate, or trust or by a
part-year resident individual shall be calculated as provided in
this section.
(1) Taxpayer shall first calculate tax liability under this
article as if taxpayer, whether an individual, estate or trust,
were a resident of this state for the entire taxable year. When
determining tentative tax liability under this subdivision, a
nonresident shall be allowed the same deductions, exemptions and
credits that would be allowable if taxpayer were a resident
individual, estate or trust, as the case may be, for the entire
taxable year, except that no credit shall be allowed under section
nineteen of this article.
(2) The amount of tentative tax determined under subdivision
(1) of this subsection shall then be multiplied by a fraction the
numerator of which is the taxpayer's West Virginia source income,
determined in accordance with Part III of this article for the
taxable year, and the denominator of which is such taxpayer's
"federal adjusted gross income" for the taxable year as defined in
section eight of this article.
(b)
Special rules for estates and trusts. -- For purposes of
subdivision (1) of subsection (a):
(1) The "federal adjusted gross income" of an estate or trust
shall be determined as if such estate or trust were an individual;
and
(2) In the case of a trust, "federal adjusted gross income"
shall be its "federal adjusted gross income" for the taxable year
increased by the amount of any includable gain, reduced by any
deductions properly allocable thereto, upon which the tax is
imposed for the taxable year pursuant to Section 644 of the
Internal Revenue Code.
(c)
Special rules for part-year residents. --
(1) For purposes of subdivision (1) of subsection (a), the
"federal adjusted gross income" of a part-year resident individual
shall be taxpayer's federal adjusted gross income for the taxable
year, as defined in section eight of this article, increased or
decreased, as the case may be, by the items accrued under
subdivision (1), subsection (b), section thirty-eight of this
article, to the extent such items are not otherwise included in
federal adjusted gross income for the taxable year, and decreased
or increased, as the case may be by the items accrued under
subdivision (2), subsection (b) of said section thirty-eight, to
the extent such items are included in federal adjusted gross income
for the taxable year; and
(2) In computing the tax due as if taxpayer were a resident of
this state for the entire tax year, West Virginia adjusted gross income shall include the accruals specified in subdivision (1) of
subsection (c), with the applicable modifications described in
section thirty-eight of this article.
(d)
Definitions. --
(1) "Nonresident estate" means an estate of a decedent who was
not a resident of this state at the time of his or her death.
(2) "Nonresident trust" means a trust which is not a resident
trust, as defined in section seven.
(3) "Part-year resident individual" means an individual who is
not a resident or nonresident of this state for the entire taxable
year.
§11-21A-31. West Virginia source income of nonresident
individual.
(a)
General. -- The West Virginia source income of a
nonresident individual shall be the sum of the net amount of
income, gain, loss and deduction entering into his or her federal
adjusted gross income, as defined in the laws of the United States
and section eight of this article, for the taxable year, derived
from or connected with West Virginia sources, including:
(1) His or her distributive share of partnership income,
gain, loss and deduction, determined under section thirty-two; and
(2) His or her pro rata share of S corporation income, loss
and deduction, determined under section thirty-two, increased by
reductions for taxes described in paragraphs (2) and (3), subsection (f), Section 1366 of the Internal Revenue Code; and
(3) His or her share of estate or trust income, gain, loss
and deduction, determined under section thirty-four of this
article.
(b)
Income and deductions from West Virginia sources. --
(1) Items of income, gain, loss and deduction derived from or
connected with West Virginia sources shall be those items
attributable to:
(A) The ownership of any interest in real or tangible personal
property in this state; or
(B) A business, trade, profession or occupation carried on in
this state; or
(C) In the case of a shareholder of an S corporation, the
ownership of shares issued by such corporation, to the extent
determined under section thirty-two.
(2) Income from intangible personal property, including
annuities, dividends, interest, and gains from the disposition of
intangible personal property, shall constitute income derived from
West Virginia sources only to the extent that such income is from
property employed in a business, trade, profession or occupation
carried on in this state.
(3) Deductions with respect to capital losses and net
operating losses shall be based solely on income, gain, loss and
deduction derived from or connected with West Virginia sources, under regulations of the Tax Commissioner, but otherwise shall be
determined in the same manner as the corresponding federal
deductions.
(4) The deduction allowed by Section 215 of the Internal
Revenue Code, relating to alimony, shall not constitute a deduction
derived from West Virginia sources.
(c)
Income and deductions partly from West Virginia sources.
-- If a business, trade, profession or occupation is carried on
partly within and partly without this state, as determined under
regulations of the Tax Commissioner, the items of income, gain,
loss and deduction derived from or connected with West Virginia
sources shall be determined by apportionment and allocation under
such regulations.
(d)
Purchase and sale for own account. -- A nonresident, other
than a dealer holding property for sale to customers in the
ordinary course of his or her trade or business, shall not be
deemed to carry on a business, trade, profession or occupation in
this state solely by reason of the purchase and sale of property
for his or her own account.
(e)
Husband and wife. -- If a husband and wife determine their
federal income tax on a joint return but determine their West
Virginia income taxes separately, they shall determine their West
Virginia source incomes separately as if their federal adjusted
gross incomes had been determined separately.
§11-21A-32. Nonresident partners and shareholders of S
corporations.
(a)
Portion derived from West Virginia sources. --
(1) In determining the West Virginia source income of a
nonresident partner of any partnership, there shall be included
only the portion derived from or connected with West Virginia
sources of such partner's distributive share, for federal income
tax purposes, of items of partnership income, gain, loss and
deduction, as such portion shall be determined under regulations of
the Tax Commissioner consistent with the applicable rules of
section thirty-one.
(2) In determining West Virginia source income of a
nonresident shareholder of an S corporation, there shall be
included only the portion derived from or connected with West
Virginia sources of such shareholder's pro rata share of items of
S corporation income, gain, loss and deduction entering into the
shareholder's federal adjusted gross income, as defined in section
eight, increased by reductions for taxes described in paragraphs
(2) and (3), subsection (f), Section 1366 of the Internal Revenue
Code, as such portion shall be determined under regulations of the
Tax Commissioner consistent with the applicable methods and rules
for allocation and apportionment under article twenty-eight of this
chapter.
(b)
Special rules as to West Virginia sources. -- In determining the sources of a nonresident partner's income, no
effect shall be given to a provision of the partnership agreement
which:
(1) Characterizes payments to the partner as being for
services or for the use of capital; or
(2) Allocates to the partner, as income or gain from sources
outside West Virginia, a greater proportion of his or her
distributive share of partnership income or gain than the ratio of
partnership income or gain from sources outside West Virginia to
partnership income or gain from all sources, except as authorized
in subsection (d); or
(3) Allocates to the partner a greater proportion of a
partnership item of loss or deduction connected with West Virginia
sources than his or her proportionate share, for federal income tax
purposes, of partnership loss or deduction generally, except as
authorized in subsection (c) of this section.
(c)
Alternative methods. -- The Tax Commissioner may, on
written application filed on or before the due date of the
partner's or S corporation shareholder's return under this article
for that taxable year determined without regard to any extension of
time for filing, authorize the use of such other method or methods
of determining the nonresident partner's portion of partnership
items, or the nonresident S corporation shareholder's portion of S
corporation items, derived from or connected with West Virginia sources, and the modifications related thereto, as may be
appropriate and equitable, on such terms and conditions as the
Commissioner may require.
(d)
Application of rules for resident partners to nonresident
partners and shareholders. --
(1) For a partner's distributive share of items, see
subsection (a) of section fifteen.
(2) The character of partnership items for a nonresident
partner shall be determined under subsection (b) of section
fifteen.
(3) The effect of a special provision in a partnership
agreement, other than a provision referred to in subsection (b) of
this section, having the principal purpose of avoidance or evasion
of tax under this article shall be determined under subsection (c)
of section fifteen.
(e)
Application of rules for resident S corporation
shareholders to nonresident S corporation shareholders. --
(1) For an S corporation shareholder's distributive share of
S corporation items, see subsection (a) of section sixteen.
(2) The character of S corporation items for a nonresident
shareholder of an S corporation shall be determined under
subsection (b) of section sixteen.
§11-21A-33. West Virginia source income of a nonresident estate
or trust.
(a)
General. -- The West Virginia source income of a
nonresident estate or trust shall be determined as follows:
(1)
Items in distributable net income. -- There shall be
determined its share of income, gain, loss and deduction from West
Virginia sources under section thirty-four of this article,
relating to items entering into the definition of distributable net
income.
(2)
Items not in distributable net income. -- There shall be
added to or subtracted, as the case may be, the amount derived from
or connected with West Virginia sources of any income, gain, loss
and deduction which would be included in the determination of
federal adjusted gross income if the estate or trust were an
individual and which is recognized for federal income tax purposes,
but excluded from the definition of federal distributable net
income of the estate or trust. The source of such income, gain,
loss and deduction shall be determined in accordance with the
applicable rules of section thirty-one of this article as in the
case of a nonresident individual.
(b)
Special West Virginia source rules. -- Deductions with
respect to capital losses and net operating losses shall be based
solely on income, gains, losses and deductions derived from or
connected with West Virginia sources, under regulations of the Tax
Commissioner, but otherwise determined in the same manner as the
corresponding federal deductions.
§11-21A-34. Share of a nonresident estate, trust or beneficiary
in income from West Virginia sources.
(a)
General. -- The share of a nonresident estate or trust
under paragraph (1) of subsection (a) of section thirty-three, and
the share of a nonresident beneficiary of any estate or trust under
subsection (a) of section thirty-one of this article, in estate or
trust income, gain, loss and deduction from West Virginia sources
shall be determined as follows:
(1)
Items of distributable net income from West Virginia
sources. -- There shall be determined the items of income, gain,
loss and deduction, derived from or connected with West Virginia
sources, which would be included in the determination of federal
adjusted gross income if the estate or trust were an individual and
which enter into the definition of federal distributable net income
of the estate or trust for the taxable year including such items
from another estate or trust of which the first estate or trust is
a beneficiary. Such determination of source shall be made in
accordance with the applicable rules of section thirty-one of this
article as in the case of a nonresident individual.
(2)
Allocation among estate or trust beneficiaries. --
(A) The amounts determined under subdivision (1) of subsection
(a) shall be allocated among the estate or trust and its
beneficiaries (including, solely for the purposes of this
allocation, resident beneficiaries) in proportion to their respective shares of federal distributable net income.
(B) The amounts so allocated shall have the same character
under this article as for federal income tax purposes. Where an
item entering into the computation of such amounts is not
characterized for federal income tax purposes, it shall have the
same character as if realized directly from the source from which
realized by the estate or trust, or incurred in the same manner as
incurred by the estate or trust.
(b)
Alternative methods of determining shares. --
(1) If the estate or trust has no federal distributable net
income for the taxable year, the share of each beneficiary,
including, solely for the purposes of this allocation, resident
beneficiaries, in the net amount determined under subdivision (1)
of subsection (a) shall be in proportion to the beneficiary's share
of the estate or trust income for such year, under local law or the
governing instrument, which is required to be distributed currently
and any other amounts of income distributed in such year. Any
balance of such net amounts shall be allocated to the estate or
trust.
(2) The Tax Commissioner may, on written application filed on
or before the due date of the return due under this article for the
taxable year from the estate or trust determined without regard to
any extension of time for filing such return, authorize use of
other methods of determining the representative shares of the beneficiaries and of the estate or trust in its income derived from
West Virginia sources, and the modifications related thereto, as
may be appropriate and equitable, on such terms and conditions as
the Commissioner may require.
(3) The Tax Commissioner may by regulation establish other
method or methods of determining the respective shares of the
beneficiaries and of the estate or trust in its income derived from
West Virginia sources as may be appropriate and equitable. Such
method may be used by the fiduciary in his or her discretion
whenever the allocation of such respective shares under subsection
(a) or subdivision (1) of subsection (b) would result in an
inequity which is substantial in amount.
§11-21A-35. Credit for income tax of state of residence.
(a)
General. -- A nonresident shall be allowed a credit
against the tax otherwise due under this article for any income tax
imposed for the taxable year by another state of the United States
or by the District of Columbia, of which the taxpayer is a
resident.
(b)
Limitation. -- The credit under this section shall not
exceed either:
(1) The percentage of the other tax determined by dividing the
portion of the taxpayer's West Virginia income which is also
subject to the other tax by the total amount of his or her income
subject to such other tax; or
(2) The percentage of the tax otherwise due under this
article, determined by dividing the portion of the taxpayer's West
Virginia income which is also subject to the other tax by the total
amount of the taxpayer's West Virginia income.
(c)
Exceptions. -- No credit may be allowed under this section
for a taxable year beginning after the thirty-first day of
December, two thousand five, except pursuant to a written agreement
between this state and the nonresident individual's state of
residence. The State Tax Commissioner is hereby authorized to
enter into such agreements necessary to effectuate the purpose of
this section when he or she determines that such agreements are in
the best interest of this state and its residents.
(d)
Definition. -- For purposes of this section West Virginia
income means:
(1) The West Virginia adjusted gross income of an individual;
or
(2) The income derived from West Virginia sources by an estate
or trust, determined in accordance with the applicable rules of
section thirty-one as in the case of a nonresident individual.
§11-21A-36. Special case in which a nonresident need not file a
West Virginia income tax return.
A nonresident individual, who at no time during the taxable
year was a resident of this state, is hereby relieved of filing an
income tax return to this state for that taxable year if:
(1) His or her only income from sources within this state was
from salaries, wages or compensation for personal services
performed within this state;
(2) The salaries, wages or compensation for personal services
were subject to income taxation by the state of his or her
residence under a net income tax law substantially similar in
principle to this article;
(3) The laws of the other state contain a provision
substantially similar in effect to that contained in section
thirty-five of this article and applicable to residents of this
state; and
(4) The laws of the other state afford like treatment to a
resident of this state who earned salaries, wages or compensation
for personal services in the other state.
§11-21A-37. Military incentive tax credit.
Every employer entitled to receive a tax credit against his or
her West Virginia personal income tax liability as provided in
article two-c, chapter twenty-one-a of this code shall receive the
credit for the period and in the amount specified in said article
two-c. The State Tax Commissioner shall provide by appropriate
rule for the reporting, filing and application of claims of the tax
credit provided in a manner in conformity with the legislative
purpose as declared in section two, article two-c, chapter
twenty-one-a of this code.
§11-21A-38. West Virginia source income of part-year resident
individuals.
(a)
Individuals. -- The West Virginia source income of a
part-year resident individual shall be the sum of the following:
(1) Federal adjusted gross income for the period of residence,
computed as if his or her taxable year for federal income tax
purposes were limited to the period of residence;
(2) West Virginia source income for the period of nonresidence
determined in accordance with section thirty-one of this article as
if his or her taxable year for federal income tax purposes were
limited to the period of nonresidence; and
(3) The special accruals required by subsection (b) of this
section.
(b)
Special accruals. --
(1) If an individual changes his or her status from resident
to nonresident he or she shall, regardless of his or her method of
accounting, accrue to the portion of the taxable year prior to such
change in status any items of income, gain, loss or deduction
accruing prior to the change of status, if not otherwise properly
entering into his or her federal adjusted gross income for such
portion of the taxable year or a prior taxable year under his or
her method of accounting.
(2) If an individual changes his or her status from
nonresident to resident, he or she shall, regardless of his or her method of accounting, accrue to the portion of the taxable year
prior to such change of status any items of income, gain, loss or
deduction accruing prior to the change of status, other than items
derived from or connected with West Virginia sources, if not
otherwise properly entering into his or her federal adjusted gross
income for such portion of the taxable year or for a prior taxable
year under his or her method of accounting.
(3) No item of income, gain, loss or deduction which is
accrued under this subsection shall be taken into account in
determining West Virginia adjusted gross income or West Virginia
source income for any subsequent period.
(4) The accruals under this subsection shall not be required
if the individual files with the Tax Commissioner a bond or other
security acceptable to the Tax Commissioner, conditioned upon the
inclusion of amounts accruable under this subsection in West
Virginia adjusted gross income or West Virginia source income for
one or more subsequent taxable years as if the individual had not
changed his or her resident status.
§§11-21A-39 to 11-21A-50 Reserved for future use.
PART IV. RETURNS, DECLARATIONS AND PAYMENT OF TAX.
§11-21A-51. Returns and liabilities.
(a)
General. -- On or before the fifteenth day of the fourth
month following the close of a taxable year, an income tax return
under this article shall be made and filed by or for:
(1) Every resident individual required to file a federal
income tax return for the taxable year, or having West Virginia
adjusted gross income for the taxable year, determined under
section eleven of this article in excess of the sum of his or her
West Virginia personal exemptions:
Provided, That the Tax
Commissioner shall by legislative rule specify circumstances when
an individual is not required to file a return;
(2) Every resident estate or trust required to file a federal
income tax return for the taxable year, or having any West Virginia
taxable income for the taxable year, determined under section
seventeen of this article;
(3) Every nonresident individual having any West Virginia
adjusted gross income for the taxable year, determined under
section thirty-one of this article, in excess of the sum of his or
her West Virginia personal exemptions, except when all of such
nonresident individual's West Virginia source income is taxed on a
composite return filed under this article for the taxable year; and
(4) Every nonresident estate or trust having items of income
or gain derived from West Virginia sources, determined in
accordance with the applicable rules of section thirty-one of this
article as in the case of a nonresident individual, in excess of
its West Virginia exemption.
(b)
Husband and wife. --
(1) If the federal income tax liability of husband or wife is determined on a separate federal income tax return, their West
Virginia income tax liabilities and returns shall be separate.
(2) If the federal income tax liabilities of husband and wife
other than a husband and wife described in subdivision (3) of this
subsection are determined on a joint federal return, or if neither
files a federal return:
(A) They shall file a joint West Virginia income tax return,
and their tax liabilities shall be joint and several; or
(B) They may elect to file separate West Virginia income tax
returns on a single or separate form, as may be required by the Tax
Commissioner, if they comply with the requirements of the Tax
Commissioner in setting forth information, and in such event their
tax liabilities shall be separate.
(3) If either husband or wife is a resident and the other is
a nonresident, they shall file separate West Virginia income tax
returns on such single or separate forms as may be required by the
Tax Commissioner, and in such event their tax liabilities shall be
separate.
(c)
Decedents. -- The return of any deceased individual shall
be made and filed by his or her executor, administrator or other
person charged with his or her property.
(d)
Individuals under a disability. -- The return for an
individual who is unable to make a return by reason of minority or
other disability shall be made and filed by his or her guardian, committee, fiduciary or other person charged with the care of his
or her person or property (other than a receiver in possession of
only a part of his or her property), by his or her duly authorized
agent.
(e)
ESTATES and trusts. -- The return for an estate or trust
shall be made and filed by the fiduciary.
(f)
Joint fiduciaries. -- If two or more fiduciaries are
acting jointly, the return may be made by any one of them.
(g)
Tax a debt. -- Any tax under this article, and any
increase, interest or penalty thereon, shall, from the time it is
due and payable, be a personal debt of the person liable to pay the
same, to the State of West Virginia.
(h)
Cross reference. -- For provisions as to information
returns by partnerships, S corporations, employers and other
persons, see section fifty-two of this article.
§11-21A-52.
Composite returns.
(a)
Nonresident individuals who are required by this article
to file a return and who are:
(1) Partners in a partnership deriving income from a West
Virginia source or sources; or
(2) Shareholders of a corporation having income from a West
Virginia source or sources and which made an election under Section
1362(a) of the Internal Revenue Code (S corporations) for the
taxable year; or
(3) Beneficiaries who received a distribution (actual or
deemed) from an estate or trust having income from a West Virginia
source or sources, may, upon payment of a composite return
processing fee of fifty dollars, file a composite return in
accordance with the provisions of this section.
(b) In filing a composite return and determining the tax due
thereon, no personal exemptions may be utilized, and the rate of
tax shall be six and one-half percent. The entity or entities, to
which the composite return relates are responsible for collection
and remittance of all income tax due at the time the return is
filed.
(c) The composite return shall be filed in a manner and form
acceptable to and in accordance with instructions from the
Commissioner, and need not be signed by all nonresident individuals
on whose behalf the return is filed:
Provided, That the return is
signed by a partner, in the case of a partnership, a corporate
officer, in the case of a corporation, by a trustee, in the case of
a trust or by an executor or administrator in the case of an
estate.
(d) For the purposes of this section, a composite return means
a return filed on a group basis as though there was one taxpayer,
and sets forth the name, address, taxpayer identification number
and percent ownership or interest of each nonresident individual
who consents to be included in the composite return in addition to return information as that term is defined in section five-d,
article ten of this chapter; the term includes block filing:
Provided, That nothing in this section shall prohibit a nonresident
from also filing a separate nonresident personal income tax return
for the taxable year and a separate return shall be filed if the
nonresident has income from any other West Virginia source. If a
separate return is also filed for the taxable year, the nonresident
shall be allowed credit for his or her share of the tax remitted
with the composite return for that taxable year.
§
11-21A-53. Time and place for filing returns and paying tax.
A person required to make and file a return under this
article shall, without assessment, notice or demand, pay any tax
due thereon to the Tax Commissioner on or before the date fixed for
filing such return (determined without regard to any extension of
time for filing the return). The Tax Commissioner shall prescribe
by regulation the place for filing any return, declaration,
statement or other document required pursuant to this article and
for payment of any tax.
§11-21A-54.
Signing of returns and other documents.
(a)
General. -- Any return, declaration, statement or other
document required to be made pursuant to this article shall be
signed in accordance with regulations or instructions prescribed by
the Tax Commissioner. The fact that an individual's name is signed
to a return, declaration, statement or other document shall be prima facie evidence for all purposes that the return, declaration,
statement or other document was actually signed by him or her.
(b)
Partnerships. -- Any return, statement or other document
required of a partnership shall be signed by one or more partners.
The fact that a partner's name is signed to a return, statement or
other document shall be prima facie evidence for all purposes that
such partner is authorized to sign on behalf of the partnership.
(c)
Certifications. -- The making or filing of any return,
declaration, statement or other document or copy thereof required
to be made or filed pursuant to this article, including a copy of
a federal return, shall constitute a certification by the person
making or filing such return, declaration, statement or other
document or copy thereof that the statements contained therein are
true and that any copy filed is a true copy.
§11-21A-55. Declarations of estimated tax.
(a)
Requirement of declaration. -- Every resident and
nonresident individual shall make a declaration of his or her
estimated tax for the taxable year, containing such information as
the Tax Commissioner may prescribe by regulations or instructions,
if his or her West Virginia adjusted gross income, other than from
wages on which tax is withheld under this article, can reasonably
be expected to exceed four hundred dollars plus the sum of the West
Virginia personal exemptions to which he or she is entitled.
(b)
Definition of estimated tax. -- The term "estimated tax" means the amount which an individual estimates to be his or her
income tax under this article for the taxable year, less the amount
which he or she estimates to be the sum of any credits allowable
against the tax.
(c)
Joint declaration of husband and wife. -- A husband and
wife may make a joint declaration of estimated tax as if they were
one taxpayer, in which case the liability with respect to the
estimated tax shall be joint and several. No joint declaration may
be made if husband and wife are separated under a decree of divorce
or of separate maintenance, or if they have different taxable
years. If a joint declaration is made but husband and wife elect
to determine their taxes under this article separately, the
estimated tax for such year may be treated as the estimated tax of
either husband or wife, or may be divided between them, as they may
elect.
(d)
Time for filing declaration. -- A declaration of estimated
tax of an individual other than a farmer shall be filed on or
before the fifteenth day of April of the taxable year, except that
if the requirements of subsection (a) of this section are first
met:
(1) After the first day of April and before the second day of
June of the taxable year, the declaration shall be filed on or
before the fifteenth day of June; or
(2) After the first day of June and before the second day of September of the taxable year, the declaration shall be filed on or
before the fifteenth day of September; or
(3) After the first day of September of the taxable year, the
declaration shall be filed on or before the fifteenth day of
January of the succeeding year.
(e)
Declaration of estimated tax by a farmer. -- A declaration
of estimated tax of an individual having an estimated West Virginia
adjusted gross income from farming for the taxable year which is at
least two thirds of his or her total estimated West Virginia
adjusted gross income for the taxable year may be filed at any time
on or before the fifteenth day of January of the succeeding year,
in lieu of the time otherwise prescribed.
(f)
Declaration of estimated tax of forty dollars or less. --
A declaration of estimated tax of an individual having a total
estimated tax for the taxable year of forty dollars or less may be
filed at any time on or before the fifteenth day of January of the
succeeding year under regulations of the Tax Commissioner.
(g)
Amendments of declaration. -- An individual may amend a
declaration under regulations of the Tax Commissioner.
(h)
Return as declaration or amendment. -- If on or before the
fifteenth day of February of the succeeding taxable year an
individual other than a farmer files his or her return for the
taxable year for which the declaration is required, and pays
therewith the full amount of the tax shown to be due on the return:
(1) Such return shall be considered as his or her declaration,
if no declaration was required to be filed during the taxable year,
but is otherwise required to be filed on or before the fifteenth
day of January.
(2) Such return, if filed on or before the fifteenth day of
January, shall be considered an amendment permitted by subsection
(g) of this section if the tax shown on the return is greater than
the estimated tax shown in a declaration previously made.
(i)
Fiscal year. -- This section shall apply to a taxable year
other than a calendar year by the substitution of the months of
such fiscal year for the corresponding months specified in this
section.
(j)
Short taxable year. -- An individual having a taxable year
of less than twelve months shall make a declaration in accordance
with regulations of the Tax Commissioner.
(k)
Declaration for individual under a disability. -- The
declaration of estimated tax for an individual who is unable to
make a declaration by reason of minority or other disability shall
be made and filed by his or her guardian, committee, fiduciary or
other person charged with the care of his or her person or property
(other than a receiver in possession of only a part of his or her
property), or by his or her duly authorized agent.
(l)
Return of farmer as declaration of estimated tax. -- If
on or before the first day of March of the succeeding taxable year an individual who is a farmer files his or her return for the
taxable year for which the declaration is required, and pays
therewith the full amount of the tax shown to be due on the return,
such return shall be considered as his or her declaration, if no
declaration was required to be filed during the taxable year, but
is otherwise required to be filed on or before the fifteenth day of
January.
§11-21A-56. Payments of estimated tax.
(a)
General. -- The estimated tax with respect to which a
declaration is required shall be paid as follows:
(1) If the declaration is filed on or before the fifteenth day
of April of the taxable year, the estimated tax shall be paid in
four equal installments. The first installment shall be paid at
the time of the filing of the declaration, and the second, third
and fourth installments shall be paid on the following fifteenth
day of June, fifteenth day of September, and fifteenth day of
January, respectively.
(2) If the declaration is filed after the fifteenth day of
April and not after the fifteenth day of June of the taxable year,
and is not required to be filed on or before the fifteenth day of
April of the taxable year, the estimated tax shall be paid in three
equal installments. The first installment shall be paid at the
time of the filing of the declaration, and the second and third
installments shall be paid on the following fifteenth day of September and fifteenth day of January, respectively.
(3) If the declaration is filed after the fifteenth day of
June and not after the fifteenth day of September of the taxable
year, and is not required to be filed on or before the fifteenth
day of June of the taxable year, the estimated tax shall be paid in
two equal installments. The first installment shall be paid at the
time of the filing of the declaration, and the second shall be paid
on the following fifteenth day of January.
(4) If the declaration is filed after the fifteenth day of
September of the taxable year, and is not required to be filed on
or before the fifteenth day of September of the taxable year, the
estimated tax shall be paid in full at the time of the filing of
the declaration.
(5) If the declaration is filed after the time prescribed
therefor, or after the expiration of any extension of time
therefor, paragraphs (2), (3) and (4) of this subsection shall not
apply, and there shall be paid at the time of such filing all
installments of estimated tax payable at or before such time, and
the remaining installments shall be paid at the times at which, and
in the amounts in which, they would have been payable if the
declaration had been filed when due.
(b)
Farmers. -- If an individual referred to in subsection
(e), section fifty-five of this article (relating to income from
farming) makes a declaration of estimated tax after the fifteenth day of September of the taxable year and on or before the following
fifteenth day of January, the estimated tax shall be paid in full
at the time of the filing of the declaration.
(c)
Amendments of declaration. -- If any amendment of a
declaration is filed, the remaining installments, if any, shall be
rateably increased or decreased (as the case may be) to reflect any
increase or decrease in the estimated tax by reason of such
amendment, and if any amendment is made after the fifteenth day of
September of the taxable year, any increase in the estimated tax by
reason thereof shall be paid at the time of making such amendment.
(d)
Application to short taxable year. -- This section shall
apply to a taxable year of less than twelve months in accordance
with regulations of the Tax Commissioner.
(e)
Fiscal year. -- This section shall apply to a taxable year
other than a calendar year by the substitution of the months of
such fiscal year for the corresponding months specified in this
section.
(f)
Installments paid in advance. -- An individual may elect
to pay any installment of his or her estimated tax prior to the
date prescribed for its payment.
§
11-21A-57.
Extensions of time.
(a)
General. -- The Tax Commissioner may grant a reasonable
extension of time for payment of tax or estimated tax (or any
installment), or for filing any return, declaration, statement or other document required pursuant to this article, on such terms and
conditions as he or she may require. Except for a taxpayer who is
outside the United States, no such extension shall exceed six
months.
(b)
Amount determined as deficiency. -- The Tax Commissioner
may, under regulations, extend the time for payment of an amount
determined as a deficiency for a period not to exceed eighteen
months from the date designated for payment of the deficiency, and
under exceptional circumstances, for a further period not to exceed
twelve months. An extension under this subsection may be granted
only where it is established to the satisfaction of the Tax
Commissioner that the payment of a deficiency upon the date
designated for payment would result in undue hardship. No
extension shall be granted if any part of the deficiency is due to
intentional disregard of rules or to fraud.
(c)
Claims in bankruptcy or receivership proceedings. --
Extension of time for payment of any portion of a claim for tax
allowed in bankruptcy, receivership or similar proceedings, which
is unpaid, may be granted subject to the same provisions and
limitations as in the case of a deficiency in such tax.
(d)
Furnishing of security. -- If any extension of time is
granted for payment of any tax or deficiency, the Tax Commissioner
may require the taxpayer to furnish a bond or other security in an
amount not exceeding twice the amount for which the extension of time for payment is granted on such terms and conditions as the Tax
Commissioner may require.
§11-21A-58. Requirements concerning returns, notices, records and
statement.
(a)
General. -- The Tax Commissioner may prescribe regulations
as to the keeping of records, the content and form of returns and
statements, and the filing of copies of federal income tax returns
and determinations. The Tax Commissioner may require any person,
by regulation or notice served upon such person, to make such
returns, render such statements, or keep such records, as the Tax
Commissioner may deem sufficient to show whether or not such person
is liable under this article for tax or for collection of tax.
(b)
Partnerships and S corporations. -- Every partnership and
S Corporation having a resident partner shareholder or having any
income derived from West Virginia sources, determined in accordance
with the applicable rules of section thirty-one as in the case of
a nonresident individual, shall make a return for the taxable year
setting forth all items of income, gain, loss and deduction and
such other pertinent information as the Tax Commissioner may by
regulations and instructions prescribe.
(c)
Information at source. -- The Tax Commissioner may
prescribe regulations and instructions requiring returns of
information to be made and filed on or before the twenty-eighth day
of February of each year as to the payment or crediting in any calendar year of amounts of six hundred dollars or more to any
taxpayer under this article. Such returns may be required of any
person, including lessees or mortgagors of real or personal
property, fiduciaries, employers, and all officers and employees of
this state, or of any municipal corporation or political
subdivision of this state, having the control, receipt, custody,
disposal or payment of interest, rents, salaries, wages, premiums,
annuities, compensations, remunerations, emoluments or other fixed
or determinable gains, profits or income, except interest coupons
payable to bearer. A duplicate of the statement as to tax withheld
on wages, required to be furnished by an employer to an employee,
shall constitute the return of information required to be made
under this section with respect to such wages.
(d)
Notice of qualification as receiver, etc. -- Every
receiver, trustee in bankruptcy, assignee for benefit of creditors,
or other like fiduciary shall give notice of his or her
qualification as such to the Tax Commissioner, as may be required
by regulation.
§11-21A-59. Report of change in federal taxable income.
If the amount of a taxpayer's federal taxable income reported
on his or her federal income tax return for any taxable year is
changed or corrected by the United States Internal Revenue Service
or other competent authority, or as the result of a renegotiation
of a contract or subcontract with the United States, the taxpayer shall report such change or correction in federal taxable income
within ninety days after the final determination of such change,
correction, or renegotiation, or as otherwise required by the Tax
Commissioner, and shall concede the accuracy of such determination
or state wherein it is erroneous. Any taxpayer filing an amended
federal income tax return shall also file within ninety days
thereafter an amended return under this article, and shall give
such information as the Tax Commissioner may require. The Tax
Commissioner may by regulation prescribe such exceptions to the
requirements of this section as he or she deems appropriate.
§11-21A-60. Change of election.
Any election expressly authorized by this article may be
changed on such terms and conditions as the Tax Commissioner may
prescribe by regulation.
§11-21A-61. Income taxes of members of armed forces on death.
(a)
General rule. -- In the case of any individual who dies
while in active service as a member of the armed forces of the
United States, if such death occurred while serving in a combat
zone (as determined under Section 112 of the Internal Revenue Code
of 1986) or as a result of wounds, disease or injury incurred while
so serving:
(1) Any tax imposed by this article shall not apply with
respect to the taxable year in which falls the date of his or her
death, or with respect to any prior taxable year ending on or after the first day he or she served in a combat zone after the first day
of August, one thousand nine hundred ninety; and
(2) Any tax under this article for taxable years preceding
those specified in subdivision (1) of this subsection, which is
unpaid at the date of his or her death (including interest,
additions to tax and additional amounts) shall not be assessed and
if assessed the assessment shall be abated and if the assessment
has been collected, the amount collected shall be credited or
refunded as an overpayment.
(b)
Individuals in missing status. -- For purposes of this
section, in the case of an individual who was in a missing status
within the meaning of Section 6013(f)(3)(A) of the Internal Revenue
Code of 1986, the date of such individual's death shall be treated
as being not earlier than the date on which a determination of such
individual's death is made under Section 556, Title 37 of the
United States Code. Subdivision (1), subsection (a) of this
section shall not apply for any taxable year beginning more than
two years after the date designated under Section 112 of the
Internal Revenue Code as the date of termination of combatant
activities in a combat zone.
(c)
Certain military or civilian employees of the United
States dying as a result of injuries sustained overseas.
(1)
In general. -- In the case of any individual who dies
while a military or civilian employee of the United States, if such death occurs as a result of wounds or injury which were incurred
while the individual was a military or civilian employee of the
United States and which were incurred outside the United States in
a terroristic or military action, any tax imposed by this article
shall not apply:
(A) With respect to the taxable year in which falls the date
of such individual's death; and
(B) With respect to any prior taxable year in the period
beginning with the last taxable year ending before the taxable year
in which the wounds or injury were incurred.
(2)
Terroristic or military action. -- For purposes of
paragraph (1), the term "terroristic or military action" means any
action which is terroristic or military action for purposes of
Section 692 of the Internal Revenue Code of 1986.
§§11-21A-62 to 11-21A-70. Reserved for future use.
PART V. WITHHOLDING OF TAX.
§11-21A-71. Requirement of withholding tax from wages.
(a)
General. -- Every employer maintaining an office or
transacting business within this state and making payment of any
wage taxable under this article to a resident or nonresident
individual shall deduct and withhold from such wages for each
payroll period a tax computed in such manner as to result, so far
as practicable, in withholding from the employee's wages during
each calendar year an amount substantially equivalent to the tax reasonably estimated to be due under this article resulting from
the inclusion in the employee's West Virginia adjusted gross income
of wages received during such calendar year. The method of
determining the amount to be withheld shall be prescribed by the
Tax Commissioner, with due regard to the West Virginia withholding
exemption of the employee and asserted in good faith by the
employee. This section shall not apply to payments by the United
States for service in the armed forces of the United States:
Provided, That the Tax Commissioner may execute an agreement with
the secretary of the treasury, as provided in 5 U.S.C. §5517, for
the mandatory withholding of tax under this section on pay to
members of the national guard while participating in exercises or
performing duty under 32 U.S.C. §502, and on pay to members of the
ready reserve while participating in scheduled drills or training
periods or serving on active duty for training under 10 U.S.C.
§270(a) [repealed].
(b)
Withholding exemptions. -- For purposes of this section:
(1) An employee shall be entitled to the same number of West
Virginia withholding exemptions as the number of withholding
exemptions to which he or she is entitled for federal income tax
withholding purposes. An employer may rely upon the number of
federal withholding exemptions claimed by the employee, except
where the employee claims a higher number of West Virginia
withholding exemptions.
(2) With respect to any taxable year beginning after the
thirty-first day of December, two thousand five, the amount of each
West Virginia exemption shall be the greater of two thousand
dollars or the taxpayer's West Virginia personal exemption amount
for the next preceding tax year whether the individual is a
resident or nonresident.
(c)
Exception for certain nonresidents. -- If the income tax
law of another state of the United States or of the District of
Columbia results in its residents being allowed a credit under
section thirty-five sufficient to offset all taxes required by this
article to be withheld from wages of an employee, the Tax
Commissioner may by regulation relieve the employers of such
employees from withholding requirements of this article with
respect to such employees.
§11-21A-72. Withholding tax on West Virginia source income of
nonresident partners, nonresident S corporation
shareholders, and nonresident beneficiaries of
estates and trusts.
(a)
General rule. -- For the privilege of doing business in
this state or deriving rents or royalties from real or tangible
personal property located in this state, including, but not limited
to, natural resources in place and standing timber, a partnership,
S corporation, estate or trust, which is treated as a pass-through
entity for federal income tax purposes and which has taxable income for the taxable year derived from or connected with West Virginia
sources any portion of which is allocable to a nonresident partner,
nonresident shareholder, or nonresident beneficiary, as the case
may be, shall pay a withholding tax under this section, except as
provided in subsections (c) and (k) of this section.
(b)
Amount of withholding tax. --
(1)
In general. -- The amount of withholding tax payable by
any partnership, S corporation, estate or trust, under subsection
(a) of this section shall be equal to four percent of the
effectively connected taxable income of the partnership, S
corporation, estate or trust, as the case may be, which may
lawfully be taxed by this state and which is allocable to a
nonresident partner, nonresident shareholder, or nonresident
beneficiary of a trust or estate.
(2)
Credits against tax. -- When determining the amount of
withholding tax due under this section, the pass-through entity may
apply any tax credits allowable under this chapter to the
pass-through entity which pass through to the nonresident
distributees:
Provided, That in no event may the application of
any credit or credits reduce the tax liability of the distributee
under this article to less than zero.
(c)
When withholding is not required. -- Withholding shall not
be required:
(1) On distribution to a person, other than a corporation, who is exempt from the tax imposed by this article. For purposes of
this subdivision (1), a person is exempt from the tax imposed by
this article only if such person is, by reason of such person's
purpose or activities, exempt from paying federal income taxes on
such person's West Virginia source income. The pass-through entity
may rely on the written statement of the person claiming to be
exempt from the tax imposed by this article provided the
pass-through entity discloses the name and federal taxpayer
identification number for all such persons in its return for the
taxable year filed under this article or article twenty-eight of
this chapter; or
(2) On distributions to a corporation which is exempt from the
tax imposed by article twenty-eight of this chapter. For purposes
of this subdivision (2), a corporation is exempt from the tax
imposed by article twenty-eight of this chapter only if the
corporation, by reason of its purpose or activities is exempt from
paying federal income taxes on the corporation's West Virginia
source income. The pass-through entity may rely on the written
statement of the person claiming to be exempt from the tax imposed
by article twenty-eight of this chapter provided the pass-through
entity discloses the name and federal taxpayer identification
number for all such corporations in its return for the taxable year
filed under this article or article twenty-eight of this chapter;
or
(3) On distributions when compliance will cause undue hardship
on the pass-through entity:
Provided, That no pass-through entity
shall be exempt under subdivision (3) of this section from
complying with the withholding requirements of this section unless
the Tax Commissioner, in his or her discretion, approves in writing
the pass-through entity's written petition for exemption from the
withholding requirements of this section based on undue hardship.
The Tax Commissioner may prescribe the form and contents of such a
petition and specify standards for when a pass-through entity will
not be required to comply with the withholding requirements of this
section due to undue hardship. Such standards shall take into
account (among other relevant factors) the ability of a
pass-through entity to comply at reasonable cost with the
withholding requirements of this section and the cost to this state
of collecting the tax directly from a nonresident distributee who
does not voluntarily file a return and pay the amount of tax due
under this article with respect to such distributions; or
(4) On distributions by nonpartnership ventures. An
unincorporated organization that has elected, under Section 761 of
the Internal Revenue Code, to not be treated as a partnership for
federal income tax, is not treated as a partnership under this
article and is not required to withhold under this section.
However, such unincorporated organizations shall make and file with
the Tax Commissioner a true and accurate return of information under subsection (c), section fifty-eight of this article, under
such regulations and in such form and manner as the Tax
Commissioner may prescribe, setting forth: (A) The amount of fixed
or determinable gains, profits and income; (B) the name, address
and taxpayer identification number of persons receiving fixed or
determinable gains, profits or income from the nonpartnership
venture.
(d)
Payment of withheld tax. --
(1)
General rule. -- Each partnership, S corporation, estate
or trust, required to withhold tax under this section shall pay the
amount required to be withheld to the Tax Commissioner no later
than:
(A)
S corporations. -- The fifteenth day of the third month
following the close of the taxable year of the S corporation unless
paragraph (C) of this subdivision applies.
(B)
Partnerships, estates and trusts. -- The fifteenth day of
the fourth month following the close of the taxable year of the
partnership, estate or trust, with the annual return of the
partnership, estate or trust due under this article, unless
paragraph (C) of this subdivision applies.
(C)
Composite returns. -- The fifteenth day of the fourth
month of the taxable year with the composite return filed under
section fifty-two of this article.
(2)
Special rules. --
(A)
Where there is extension of time to file return. -- An
extension of time for filing the returns referenced in subdivision
(1) of this subsection does not extend the time for paying the
amount withholding tax due under this section. In this situation,
the pass-through entity shall pay, by the date specified in
subdivision (1) of this subsection, at least ninety percent of the
withholding tax due for the taxable year, or one hundred percent of
the tax paid under this section for the prior taxable year, if such
taxable year was a taxable year of twelve months and tax was paid
under this section for that taxable year. The remaining portion of
the tax due under this section, if any, shall be paid at the time
the pass-through entity files the return specified in subdivision
(1) of this subsection. If the balance due is paid by the last day
of the extension period for filing such return and the amount of
tax due with such return is ten percent or less of the tax due
under this section for the taxable year, no additions to tax shall
be imposed under article ten of this chapter with respect to
balance so remitted. If the amount of withholding tax due under
this section for the taxable year is less than the estimated
withholding taxes paid for the taxable year by the pass-through
entity, the excess shall be refunded to the pass-through entity or,
at its election, established as a credit against withholding tax
due under this section for the then current taxable year.
(B)
Deposit in trust for Tax Commissioner. -- The Tax Commissioner may, if the Commissioner believes such action is
necessary for the protection of trust fund moneys due this state,
require any pass-through entity to pay over to the Tax Commissioner
the tax deducted and withheld under this section, at any earlier
time or times.
(e)
Effectively connected taxable income. -- For purposes of
this section, the term "effectively connected taxable income" means
the taxable income or portion thereof of a partnership, S
corporation, estate or trust, as the case may be, which is derived
from or attributable to West Virginia sources as determined under
section thirty-one of this article and such regulations as the Tax
Commissioner may prescribe, whether such amount is actually
distributed or is deemed to have been distributed for federal
income tax purposes.
(f)
Treatment of nonresident partners, S corporation
shareholders or beneficiaries of a trust or estate. --
(1)
Allowance of credit. -- Each nonresident partner,
nonresident shareholder, or nonresident beneficiary, shall be
allowed a credit for such partner's or shareholder's or
beneficiary's share of the tax withheld by the partnership, S
corporation, estate, or trust, under this section:
Provided, That
when the distribution is to a corporation taxable under article
twenty-eight of this chapter, the credit allowed by this section
shall be applied against the distributee corporation's liability for tax under article twenty-eight of this chapter.
(2)
Credit treated as distributed to partner, shareholder or
beneficiary. -- Except as provided in regulations, a nonresident
partner's share, a nonresident shareholder's share or a nonresident
beneficiary's share, of any withholding tax paid by the
partnership, S corporation, estate or trust, under this section
shall be treated as distributed to such partner by such
partnership, or to such shareholder by such S corporation, or to
such beneficiary by such estate or trust, on the earlier of:
(A) The day on which such tax was paid to the Tax Commissioner
by the partnership, S corporation, estate or trust; or
(B) The last day of the taxable year for which such tax was
paid by the partnership, S corporation, estate or trust.
(g)
Regulations. -- The Tax Commissioner shall prescribe such
regulations as may be necessary to carry out the purposes of this
section.
(h)
Information statement.
(1) Every person required to deduct and withhold tax under
this section shall furnish to each nonresident partner, or
nonresident shareholder, or nonresident beneficiary, as the case
may be, a written statement, as prescribed by the Tax Commissioner,
showing the amount of West Virginia effectively connected taxable
income, whether distributed or not distributed for federal income
tax purposes by such partnership, S corporation, estate or trust, to such nonresident partner, or nonresident shareholder, or
nonresident beneficiary, the amount deducted and withheld as tax
under this section; and such other information as the Tax
Commissioner may require.
(2) A copy of the information statements required by this
subsection must be filed with the West Virginia return filed under
this article (or article twenty-eight of this chapter in the case
of S corporations) by the pass-through entity for its taxable year
to which the distribution relates. This information statement must
be furnished to each nonresident distributee on or before the due
date of the pass-through entity's return under this article or
article twenty-eight of this chapter for the taxable year,
including extensions of time for filing such return, or such later
date as may be allowed by the Tax Commissioner.
(i)
Liability for withheld tax. -- Every person required to
deduct and withhold tax under this section is hereby made liable
for the payment of the tax due under this section, except as
otherwise provided in this section. The amount of tax required to
be withheld and paid over to the Tax Commissioner shall be
considered the tax of the partnership, estate, or trust, as the
case may be, for purposes of articles nine and ten of this chapter.
Any amount of tax withheld under this section shall be held in
trust for the Tax Commissioner. No partner, S corporation
shareholder or beneficiary of a trust or estate, shall have a right of action against the partnership, S corporation, estate or trust,
in respect to any moneys withheld from such person's distributive
share and paid over to the Tax Commissioner in compliance with or
in intended compliance with this section.
(j)
Failure to withhold. -- If any partnership, S corporation,
estate, or trust, fails to deduct and withhold tax as required by
this section, and thereafter the tax against which such tax may be
credited is paid, the tax so required to be deducted and withheld
under this section shall not be collected from the partnership, S
corporation, estate or trust, as the case may be, but the
partnership, S corporation, estate or trust, shall not be relieved
from liability for any penalties or interest on additions to tax
otherwise applicable in respect of such failure to withhold.
(k)
Distributee agreements. --
(1) The Tax Commissioner shall permit a nonresident
distributee to file with a pass-through entity, on a form
prescribed by the Tax Commissioner, the agreement of such
nonresident distributee:
(A) To timely file returns and make timely payment of all
taxes imposed by this article, on the distributee with respect to
the effectively connected taxable income of the pass-through
entity; and
(B) To be subject to personal jurisdiction in this state for
purposes of the collection of any unpaid income tax under this article (or article twenty-eight of this chapter), together with
related interest, penalties, additional amounts and additions to
tax, owed by the nonresident distributee.
(2) A nonresident distributee electing to execute an agreement
under this subsection must file a complete and properly executed
agreement with each pass-through entity for which this election is
made, on or before the last day of the first taxable year of the
pass-through entity in respect of which the agreement applies. The
pass-through entity shall file a copy of that agreement with the
Tax Commissioner as provided in subdivision (5) of this subsection.
(3) After an agreement is filed with the pass-through entity,
that agreement may be revoked by a distributee only in accordance
with regulations promulgated by the Tax Commissioner.
(4) Upon receipt of such an agreement properly executed by the
nonresident distributee, the pass-through entity shall not withhold
tax under this section for the taxable year of the pass-through
entity in which the agreement is received by the pass-through
entity and for any taxable year subsequent thereto until either the
nonresident distributee notifies the pass-through entity, in
writing, to begin withholding tax under this section or the Tax
Commissioner directs the pass-through entity, in writing, to begin
withholding tax under this section because of the distributee's
continuing failure to comply with the terms of such agreement.
(5) The pass-through entity shall file with the Tax Commissioner a copy of all distributee agreements received by the
pass-through entity during any taxable year with this annual
information return filed under this article, or article twenty-four
of this chapter in the case of S corporations. If the pass-through
entity fails to timely file with the Tax Commissioner a copy of an
agreement executed by a distributee and furnished to the
pass-through entity in accordance with this section, then the
pass-through entity shall remit to the Tax Commissioner an amount
equal to the amount that should have been withheld under this
section from the nonresident distributee. The pass-through entity
may recover payment made pursuant to the preceding sentence from
the distributee on whose behalf the payment was made.
(l)
Definitions. -- For purposes of this section, the
following terms mean:
(1)
Corporation. -- The term "corporation" includes
associations, joint stock companies and other entities which are
taxed as corporations for federal income tax purposes.
(A)
C corporation. -- The term "C corporation" means a
corporation which is not an S corporation for federal income tax
purposes.
(B)
S corporation. -- The term "S corporation" means a
corporation for which a valid election under Section 1362(a) of the
Internal Revenue Code is in effect for the taxable period. All
other corporations are C corporations.
(2)
Distributee. - The term "distributee" includes any partner
of a partnership, any shareholder of an S corporation, and any
beneficiary of an estate or trust, that is treated as a
pass-through entity for federal income tax purposes for the taxable
year of the entity, with respect to all or a portion of its income.
(3)
Internal Revenue Code. -- The term "Internal Revenue Code"
means the Internal Revenue Code of 1986, as amended through the
date specified in section nine of this article.
(4)
Nonresident distributee. - The term "nonresident
distributee" includes any individual who is treated as a
nonresident of this state under this article; and any partnership,
estate, trust or corporation, whose commercial domicile is located
outside this state.
(5)
Partner. -- The term "partner" includes a member of a
partnership as that term is defined in this section.
(6)
Partnership. -- The term "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. "Partnership" does
not include an unincorporated organization which, under Section 761
of the Internal Revenue Code, is not treated as a partnership for
the taxable year for federal income tax purposes.
(7)
Taxable period. -- The term "taxable period" means, in the case of an S corporation, any taxable year or portion of a taxable
year during which a corporation is an S corporation.
(8)
Taxable year of the pass-through entity. -- The term
"taxable year of the pass-through entity" means the taxable year of
the pass-through entity for federal income tax purposes. If a
pass-through entity does not have a taxable year for federal tax
purposes, its tax year for purposes of this article shall be the
calendar year.
§11-21A-73. Information statement for employee.
Every employer required to deduct and withhold tax under this
article from the wages of an employee, or who would have been
required so to deduct and withhold tax if the employee had claimed
no more than one withholding exemption, shall furnish to each such
employee in respect of the wages paid by such employer to such
employee during the calendar year on or before the fifteenth day of
February of the succeeding year, or, if his or her employment is
terminated before the close of such calendar year, on the date on
which the last payment of the wages is made, a written statement as
prescribed by the Tax Commissioner showing the amount of wages paid
by the employer to the employee, the amount deducted and withheld
as tax, and such other information as the Tax Commissioner shall
prescribe.
§11-21A-74. Credit for tax withheld.
Wages upon which tax is required to be withheld shall be taxable under this article as if no withholding were required, but
any amount of tax actually deducted and withheld under this article
in any calendar year shall be deemed to have been paid to the Tax
Commissioner on behalf of the person from whom withheld, and such
person shall be credited with having paid that amount of tax for
the taxable year beginning in such calendar year. For a taxable
year of less than twelve months, the credit shall be made under
regulations of the Tax Commissioner.
§11-21A-75. Employer's return and payment of withheld taxes.
(a)
General. -- Every employer required to deduct and withhold
tax under this article shall, for each calendar quarter, on or
before the last day of the month following the close of such
calendar quarter, file a withholding return as prescribed by the
Tax Commissioner and pay over to the Tax Commissioner the taxes so
required to be deducted and withheld. Where the average quarterly
amount so deducted and withheld by any employer is less than one
hundred fifty dollars and the aggregate for the calendar year can
reasonably be expected to be less than six hundred dollars, the Tax
Commissioner may by regulation permit an employer to file an annual
return and pay over to the Tax Commissioner the taxes deducted and
withheld on or before the last day of the month following the close
of the calendar year:
Provided, That the Tax Commissioner may, by
nonemergency legislative rules promulgated pursuant to article
three, chapter twenty-nine-a of this code, change the minimum amounts established by this subsection. The Tax Commissioner may,
if he or she believes such action necessary for the protection of
the revenues, require any employer to make the return and pay to
him or her the tax deducted and withheld at any time, or from time
to time.
(b)
Monthly returns and payments of withheld tax. --
Notwithstanding the provisions of subsection (a)of this section,
every employer required to deduct and withhold tax under this
article shall, for each of the first eleven months of the calendar
year, on or before the twentieth day of the succeeding month and
for the last calendar month of the year, on or before the last day
of the succeeding month, file a withholding return as prescribed by
the Tax Commissioner and pay over to the Tax Commissioner the taxes
so required to be deducted and withheld, if such withheld taxes
aggregate two hundred fifty dollars or more for the month; except
any employer with respect to whom the Tax Commissioner may have by
regulation provided otherwise in accordance with the provisions of
subsection (a) of this section.
(c)
Annual returns and payments of withheld tax of certain
domestic and household employees. -- Employers of domestic and
household employees whose withholdings of federal income tax are
annually paid and reported by the employer pursuant to the filing
of Schedule H of federal form 1040, 1040A, 1040NR, 1040NR-EZ,
1040SS or 1041 may, on or before the thirty-first day of January next succeeding the end of the calendar year for which withholdings
are deducted and withheld, file an annual withholding return with
the Tax Commissioner and annually remit to the Tax Commissioner
West Virginia personal income taxes deducted and withheld for the
employees. The Tax Commissioner may promulgate legislative or
other rules pursuant to article three, chapter twenty-nine-a of
this code for implementation of this subsection.
(d)
Deposit in trust for Tax Commissioner. -- Whenever any
employer fails to collect, truthfully account for, or pay over the
tax, or to make returns of the tax as required in this section, the
Tax Commissioner may serve a notice requiring the employer to
collect the taxes which become collectible after service of the
notice, to deposit the taxes in a bank approved by the Tax
Commissioner, in a separate account, in trust for and payable to
the Tax Commissioner, and to keep the amount of the tax in the
separate account until payment over to the Tax Commissioner. The
notice shall remain in effect until a notice of cancellation is
served by the Tax Commissioner.
(e)
Accelerated payment. --
(1) Notwithstanding the provisions of subsections (a) and (b)
of this section, every employer required to deduct and withhold tax
whose average payment per calendar month for the preceding calendar
year under subsection (b) of this section exceeded one hundred
thousand dollars shall remit the tax attributable to the first fifteen days of June each year on or before the twenty-third day of
June.
(2) For purposes of complying with subdivision (1) of this
subsection (e), the employer shall remit an amount equal to the
withholding tax due under this article on employee compensation
subject to withholding tax payable or paid to employees for the
first fifteen days of June or, at the employer's election, the
employer may remit an amount equal to fifty percent of the
employer's liability for withholding tax under this article on
compensation payable or paid to employees for the preceding month
of May.
(3) For an employer which has not been in business for a full
calendar year, the total amount the employer was required to deduct
and withhold under subsection (b) of this section for the prior
calendar year shall be divided by the number of months, including
fractions of a month, that it was in business during the prior
calendar year, and if that amount exceeds one hundred thousand
dollars, the employer shall remit the tax attributable to the first
fifteen days of June each year on or before the twenty-third day of
June, as provided in subdivision (2) of this subsection (e).
(4) When an employer required to make an advanced payment of
withholding tax under subdivision (1) of this subsection (e) makes
out its return for the month of June, which is due on the twentieth
day of July, that employer may claim as a credit against its liability under this article for tax on employee compensation paid
or payable for employee services rendered during the month of June
the amount of the advanced payment of tax made under subdivision
(1) of this subsection (e).
§11-21A-76. Employer's liability for withheld taxes.
Every employer required to deduct and withhold tax under this
article is hereby made liable for such tax. To the extent not
inconsistent with the provisions of this article, all of the
provisions of articles nine and ten of this chapter, relating to
assessment and collection of taxes, and to penalties, additions to
tax and interest in respect thereto, shall apply to every employer
required to withhold tax under this article. For such purposes any
amount required to be withheld and paid over to the Tax
Commissioner shall be considered the tax of the employer. Any
amount of tax actually deducted and withheld under this article
shall be held to be a special fund in trust for the Tax
Commissioner. No employee shall have any right of action against
his or her employer in respect to any moneys deducted and withheld
from his or her wages and paid over to the Tax Commissioner in
compliance or in intended compliance with this article.
§11-21A-77. Employer's failure to withhold.
If an employer fails to deduct and withhold tax as required,
and thereafter the tax against which such tax may be credited is
paid, the tax so required to be deducted and withheld shall not be collected from the employer, but the employer shall not be relieved
from liability for any penalties, interest, or additions to the tax
otherwise applicable in respect of such failure to deduct and
withhold.
§11-21A-78. Extension of withholding to certain lottery winnings.
(a)
Lottery winnings subject to withholding. -- Proceeds of
more than five thousand dollars from any lottery prize awarded by
the West Virginia State Lottery Commission shall be subject to
withholding. The West Virginia State Lottery Commission in making
any payment of a lottery prize subject to withholding shall deduct
and withhold from such payment a tax in an amount equal to six and
one-half percent of such payment.
(b)
Statement by recipient. -- Every person who is to receive
payment of winning which is subject to withholding shall furnish
the person making such payment a statement made under the penalties
of perjury, containing the name, address and taxpayer
identification number of the person receiving the payment and each
person entitled to any portion of such payment.
(c)
Coordination with other sections. -- For the purposes of
determining liability for payment of taxes and filing of returns,
payments of winnings which are subject to withholding shall be
treated as if they were wages paid by an employer to an employee.
§11-21A-79. Disposition of revenue.
Of the revenue collected under this article the State Treasurer shall retain in his or her hands such amount as the Tax
Commissioner may determine to be necessary for refunds to which
taxpayers shall be entitled under this article. The State
Treasurer shall, after reserving such refund fund, on or before the
tenth day of each month pay all interest, penalties and taxes
collected under this article and remaining to his or her credit in
banks, banking houses or trust companies at the close of business
on the last day of the preceding month, into the general fund of
the State Treasury.
§11-21A-80.
Severability.
If any provision of this article or the application thereof
shall for any reason be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder of said article, but shall be confined
in its operation to the provision thereof directly involved in the
controversy in which such judgment shall have been rendered, and
the applicability of such provision to other persons or
circumstances shall not be affected thereby.
§11-21A-81. Effective date.
This article shall take effect on the first day of January of
the first year following the year in which the voters ratify the
Fair taxation Amendment to the Constitution of this state.
ARTICLE 23. BUSINESS FRANCHISE TAX.
§11-23-29. Prospective termination of tax, preservation for prior periods.
Each and every provision of this article is repealed for all
tax periods beginning on the first day of January of the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state:
Provided, That tax
liabilities, if any, arising for taxable periods prior to the first
day of January of the first year following the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of
this state shall be determined, administered, assessed and
collected as if the taxes imposed by this article had not been
repealed; and the rights and duties of taxpayers and the state
shall be fully and completely preserved.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-23h. Preservation of economic benefit of credit.
Notwithstanding the repeal of this article as provided in
section forty-three of this article, any taxpayer subject to the
tax imposed under article twenty-eight of this chapter and which
has gained entitlement to the credit provided in section
twenty-three-a of this article prior to the first day of January of
the first year following the year in which the voters ratify the
Fair Taxation Amendment to the Constitution of this state, shall be
allowed a credit against the tax imposed under article twenty-eight
of this chapter in an amount and for the tax year or years that
will secure for such taxpayer an actual economic benefit equal in amount to the economic benefit it would have received by virtue of
the credit provided in section twenty-three-a of this article but
for section forty-three of this article.
§11-24-43. Prospective termination of tax, preservation for prior
periods.
Each and every provision of this article is repealed for all
tax periods beginning on the first day of January of the first year
following the year in which the voters ratify the Fair Taxation
Amendment to the Constitution of this state:
Provided, That tax
liabilities, if any, arising for taxable periods prior to the first
day of January of the first year following the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of
this state shall be determined, administered, assessed and
collected as if the taxes imposed by this article had not been
repealed; and the rights and duties of taxpayers and the state
shall be fully and completely preserved.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-37. Phase-out of tax required by Fair Taxation Amendment.
Notwithstanding any provision of this code to the contrary,
beginning on the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state phasing out the taxes imposed by
this article, the rates of the taxes imposed in this article shall
be one hundred percent of the rates of tax imposed in this article immediately before ratification of the Fair Taxation Amendment; and
in the second year, seventy percent; and in the third year, forty
percent; and in the fourth year, twenty percent; and in the fifth
year and thereafter, zero percent.
ARTICLE 28.
BUSINESS ACTIVITIES AND PROFITS TAX.
§11-28-1. Short title.
This article is known and may be cited as the "Business
Activities and Profits Tax Law."
§11-28-2. Legislative findings and declaration of purpose.
The Legislature finds and declares that all persons and
entities, granted the privilege of engaging in business activities
in this state, benefit from the functions of state government
regardless of how they are organized, and, as a result, in respect
of that privilege they should provide some of the financial support
for those functions through a single, simple, stable and
predictable tax that fairly reflects the scale of their business
activities in this state
. The Legislature further finds that,
until they reach a certain minimum scale of business activity, the
operators of enterprises will be contributing their fair share of
that support through the taxes imposed on them as individuals under
other articles of this chapter.
The Legislature does therefore declare that the purpose of
this article shall be to impose the business activities and profits
tax which is based on, and shall be construed so as to give effect to, the foregoing findings.
§11-28-3. Definitions of terms; general rule and specific terms
defined.
(a)
General rule. -- Any term used in this article shall have
the same meaning as when used in any comparable context in the laws
of the United States relating to federal income taxes, unless a
different meaning is clearly required by the context or by specific
definition in this article. For purposes of this article, terms
specifically defined in this section shall have the meanings
ascribed to them herein unless a different meaning is clearly
required by either the context in which the term is used or by
specific definition in another section of this article.
(b)
Terms defined. --
(1)
Adjusted profit. -- The term "adjusted profit" means a
taxpayer's net income reportable for federal income tax purposes
less the adjustments provided in this article.
(2)
Affiliated group. -- The term "affiliated group" means one
or more subsidiaries connected by a common parent taxpayer.
(3)
Allowable depreciation. -- The term "allowable
depreciation" means the amount of depreciation allowable to the
taxpayer as a deduction for federal income tax purposes in a
taxable year with respect to capital assets for which a qualified
capital expenditure deduction was allowed under this article in the
same or a prior taxable year.
(4)
Apportionment factor. -- The term "apportionment factor"
means, for a taxable year, a fraction the numerator of which is sum
of the taxpayer's payroll factor, plus the property factor, plus
two times the sales factor, and the denominator of which is four,
reduced by the number of factors, if any, having no denominator,
with the sales factor counting as two factors.
(5)
Business activity or engaging in business activity. -- The
term "business activity" and the phrase "engaging in business
activity" are used interchangeably and mean any purposeful revenue
generating activity, except casual transactions, by a person who or
which enjoys the benefits and protection of the government and laws
of this state.
(6)
Casual transactions. -- The term "casual transactions"
means transactions which are not conducted by the taxpayer in a
repeated manner or in the ordinary course of repetitive and
successive activities of like character.
(7)
Commissioner or Tax Commissioner. -- The terms
"Commissioner" or "Tax Commissioner" are used interchangeably
herein and mean the Tax Commissioner of the State of West Virginia,
or his or her delegate.
(8)
Compensation. -- The term "compensation" means:
(A) Wages, salaries, commissions and any other form of
remuneration paid or accrued in the taxable year on behalf of or
for the benefit of employees, officers or directors for personal services rendered to the taxpayer which are subject to or
specifically made exempt from withholding for federal income tax
purposes;
(B) Amounts reportable by a partner as earned income from
personal services rendered to a taxpayer that is a partnership, or
by a member or another person as an owner of an interest in an
entity treated as a partnership for federal income tax purposes;
and
(C) Amounts reportable as net earnings from self-employment
for federal income tax purposes to the extent not included in the
preceding subparagraph (B).
(9)
Corporation. -- The term "corporation" includes any
corporation, S corporation, joint-stock company and any association
or other organization which is treated as a corporation for federal
income tax purposes.
(10)
Delegate. -- The term "delegate" in the phrase "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 Revenue duly authorized by the Tax Commissioner
directly, or indirectly by one or more redelegations of authority,
to perform functions mentioned or described in this article or
regulations promulgated thereunder.
(11)
Domicile. -- The term "domicile" means the principal
place from which the business activity of the taxpayer is directed or managed:
Provided, That the domicile of a financial
organization, which is subject to regulation as such, shall be at
the place designated as its principal office with its regulating
authority.
(12)
Fiduciary. -- The term "fiduciary" means, and includes,
a guardian, trustee, executor, administrator, receiver, conservator
or any other person acting in a fiduciary capacity for any other
person.
(13)
Financial organization. -- The term "financial
organization" means:
(A) A holding company or subsidiary thereof. As used in this
section, "holding company" means a corporation registered under the
federal bank holding company act of 1956 or registered as a savings
and loan holding company other than a diversified savings and loan
holding company (as defined in Section 408(a)(1)(F) of the federal
national housing act;
(B) A regulated financial corporation or a subsidiary thereof.
As used in this section, "regulated financial corporation" means:
(1) An institution, the deposits, shares or accounts of which
are insured under the federal deposit insurance act, or by the
federal savings and loan insurance corporation;
(2) An institution that is a member of a federal home loan
bank;
(3) Any other bank or thrift institution incorporated or organized under the laws of a state that is engaged in the business
of receiving deposits;
(4) A credit union incorporated and organized under the laws
of this state;
(5) A production credit association organized under 12 U.S.C.
2071;
(6) A corporation organized under 12 U.S.C. 611 through 631;
or
(7) A federal or state agency or branch of a foreign bank; or
(C) A corporation which derives more than fifty percent of its
gross receipts from business activity from one or more of the
following activities:
(1) Making, acquiring, selling or servicing loans or
extensions of credit. Loans and extensions of credit include:
(I) Secured or unsecured consumer loans;
(II) Installment obligations;
(III) Mortgages or other loans secured by real estate or
tangible personal property;
(IV) Credit card loans;
(V) Secured and unsecured commercial loans of any type; and
(VI) Loans arising in factoring.
(2) Leasing or acting as an agent, broker or advisor in
connection with leasing real and personal property that is the
economic equivalent of an extension of credit.
(3) Operating a credit card business.
(4) Rendering estate or trust services.
(5) Receiving, maintaining or otherwise handling deposits.
(6) Engaging in any other activity with an economic effect
comparable to those activities described in items (1), (2), (3),
(4) and (5) of this subparagraph.
(14)
Fiscal year. -- The term "fiscal year" means an
accounting period of twelve months ending on any day other than the
last day of December, and on the basis of which the taxpayer is
required to report for federal income tax purposes.
(15)
Gross receipts. -- The term "gross receipts" means the
amount of money, credits, property or other consideration, without
deduction for any expenses whatsoever, received by a person as a
result of and with respect to his, her or its business activity.
(16)
Includes and including. -- The terms "includes" and
"including" when used in a definition in this article shall not be
deemed to exclude other things otherwise within the meaning of the
term being defined.
(17)
Interest. -- The term "interest" when used in reference
to an element of the tax base described in section four of this
article means amounts paid or accrued by a taxpayer for the use or
forbearance of money or property.
(18)
Nexus. -- The term "nexus" means the extent of contacts
that a person has with a state that is sufficient, under the laws and Constitution of the United States, to permit that state to
exercise its jurisdiction to impose, on that person, taxes and
obligations to report to it for tax purposes.
(19)
Nonprofit organization. -- The term "nonprofit
organization" means a corporation, partnership or other entity that
is organized and functions in a manner consistent with the
substantive requirements of the laws of the United States relating
to organizations exempt from federal income taxes.
(20)
Parent taxpayer. -- The term "parent taxpayer" means a
corporation, partnership or other taxpayer which owns on average
during the taxable year more than fifty percent of the stock,
partnership or other equity ownership interest in another
corporation, partnership or other entity, which interest is
accompanied by the right to vote on matters of governance of the
business affairs of the other corporation, partnership or other
entity.
(21)
Partnership and partner. -- The term "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, whether for
profit or not, which is treated as a partnership for federal income
tax purposes, but which is not a trust, estate or corporation. The
term "partner" includes a member in such a syndicate, group, pool,
joint venture or other unincorporated organization which is a partnership.
(22)
Payroll factor. -- The term "payroll factor" means a
fraction, the numerator of which is the total compensation paid in
this state during the taxable year by the taxpayer, and the
denominator of which is the total compensation paid by the taxpayer
during the taxable year.
(23)
Person. -- The term "person" means any individual,
partnership, association, corporation, trust, estate or any other
entity that has a separate identity under applicable law.
(24)
Profit. -- The term "profit" means a person's net income
from business activities as reported for federal income tax
purposes.
(25)
Pro forma return. -- The term "pro forma return" means
the return a taxpayer would have filed with the Internal Revenue
Service of the United States Department of the Treasury for the
taxable year had it elected to file, or were it not exempt from
filing, as a separate entity a return for federal income tax
purposes.
(26)
Property factor. -- The term "property factor" means a
fraction, the numerator of which is the average value of the
taxpayer's real and tangible personal property owned or rented and
used by it in this state during the taxable year, and the
denominator of which is the average value of all real and tangible
personal property owned or rented by the taxpayer and used by it during the taxable year.
(27)
Qualified capital expenditure. -- The term "qualified
capital expenditure" means the cost paid or accrued by a taxpayer
in a taxable year for the purchase or lease of tangible assets,
real or personal, located in this state and as to which the
taxpayer is or will be allowed a deduction for depreciation for
federal income tax purposes.
(28)
Qualified investment company. -- The term "qualified
investment company" means a regulated investment company as defined
in the laws of the United States relating to federal income taxes,
or an organization generally subject to the Investment Company Act
of 1940 as amended and set forth in the United States code, without
regard to whether it may be expressly excepted from compliance with
the provisions of that said federal law.
(29)
Sales. -- The term "sales" means all gross receipts
generated by the taxpayer's business activity.
(30)
Sales factor. -- The term "sales factor" means a
fraction, the numerator of which is the gross receipts of the
taxpayer derived from business activity in this state during the
taxable year, less returns and allowances. The denominator of the
fraction is the gross receipts derived by the taxpayer from
business activity during the taxable year, less returns and
allowances.
(31)
State. -- The term "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico,
or any territory or possession of the United States, and any
foreign country or political subdivision thereof.
(32)
Stock. -- The term "stock" means shares in a corporation,
association or joint-stock company. It shall not include nonvoting
stock which is limited and preferred as to dividends, or treasury
stock.
(33)
Subsidiary. -- The term "subsidiary" means the
corporation, partnership or other entity in which a parent taxpayer
holds an ownership interest, and voting rights.
(34)
Taxable year and short taxable year. -- The term "taxable
year" means the calendar year, or the fiscal year ending in such
calendar year, upon the basis of which tax liability is computed
under this article. The term "short taxable year" means the period
that is a fractional part of a taxable year for which a return is
made under this article, or under regulations promulgated by the
Tax Commissioner.
(35)
Taxpayer. -- The term "taxpayer" means any person subject
to the tax imposed by this article.
(36)
Taxable in another state. -- The term "taxable in another
state" means a taxpayer who is lawfully subject to tax on net
income or measured by net income, or to a tax imposed on the
privilege of engaging in business activity in a state that is not
this state, or who would be subject to such a tax if such other state imposed it on the taxpayer.
(37)
Transportation business. -- The term "transportation
business" means the business activity of conveying passengers or
goods from one geographical location to another geographical
location.
(38)
This code. -- The term "this code" means the code of West
Virginia, 1931, as amended.
(39)
This state. - The term "this state" means the State of
West Virginia.
(40)
Unitary group. -- The term "unitary group" means the
members of an affiliated group which are engaged in a single,
integrated line of business activity.
§11-28-4. Base of tax; deductions and exceptions; apportionment.
(a)
Tax Base. -- For the purposes of this article, but subject
to the exceptions provided in this section, the tax base of a
taxpayer shall consist of an amount equal to the sum of the
taxpayer's payments during the taxable year for compensation,
rents, royalties and interest, plus its allowable depreciation and
adjusted profit for the taxable year, less qualified capital
expenditures and less deductions provided in this section.
(b)
Small business deduction. -- A taxpayer whose tax base
amount in the taxable year, as determined under subsection (a) of
this section without regard to this subsection, is not more than
fifty thousand dollars, or whose gross receipts in the taxable year are not more than one hundred thousand dollars, shall be entitled
to a deduction from his, her or its tax base equal to one hundred
percent of that tax base amount; a taxpayer whose tax base amount
in the taxable year, as determined under subsection (a) of this
section without regard to this subsection, is more than fifty
thousand dollars, but not more than one hundred thousand dollars,
or whose gross receipts in the taxable year are more than one
hundred thousand dollars, but not more than two hundred thousand
dollars, shall be entitled to a deduction from his, her or its tax
base equal to eighty percent of that tax base amount; a taxpayer
whose tax base amount in the taxable year, as determined under
subsection (a) of this section without regard to this subsection,
is more than one hundred thousand dollars, but not more than one
hundred fifty thousand dollars, or whose gross receipts in the
taxable year are more than two hundred thousand dollars, but not
more than three hundred thousand dollars, shall be entitled to a
deduction from his, her or its tax base equal to sixty percent of
that tax base amount; a taxpayer whose tax base amount in the
taxable year, as determined under subsection (a) of this section
without regard to this subsection, is more than one hundred fifty
thousand dollars, but not more than two hundred thousand dollars,
or whose gross receipts in the taxable year are more than three
hundred thousand dollars but not more than four hundred thousand
dollars, shall be entitled to a deduction from his, her or its tax base equal to forty percent of that tax base amount; a taxpayer
whose tax base amount in the taxable year, as determined under
subsection (a) of this section without regard to this subsection,
is more than two hundred thousand dollars but not more than two
hundred fifty thousand dollars, or whose gross receipts in the
taxable year are more than four hundred thousand dollars, but not
more than five hundred thousand dollars, shall be entitled to a
deduction from his, her or its tax base equal to twenty percent of
that tax base amount; and a taxpayer whose tax base amount in the
taxable year, as determined under subsection (a) of this section
without regard to this subsection, is more than two hundred fifty
thousand dollars but not more than five hundred thousand dollars,
or whose gross receipts in the taxable year are more than five
hundred thousand dollars, but not more than one million dollars,
shall be entitled to a deduction from his, her, or its tax base
equal to ten percent of that tax base amount.
(c)
Adjustment for dividends received. -- To avoid multiple
taxation of the same taxpayer, a taxpayer which is a member of an
affiliated group of entities may, in determining its adjusted
profit for purposes of subsection (a) of this section, deduct from
profit for the taxable year the amount of dividends received from
another member of that same group and included in the payor's tax
base.
(d)
Tax base of financial organizations. -- Notwithstanding subsection (a) of this section, the tax base of a taxpayer which is
a financial organization, and which is not taxable in another state
for the taxable year, shall be the sum of the taxpayer's payments
in the taxable year for compensation, rents and royalties, expenses
directly attributable to the acquisition, holding and sale of
federal and state obligations and interest incurred in nonfinancial
intermediation activities, plus allowable depreciation and its
adjusted profit for the tax year, less interest earned on federal
and state obligations and qualified capital expenditures. A
taxpayer that is a financial organization having nexus with this
state, but that is also taxable in another state, shall,
notwithstanding subsection (f) of this section, determine the
adjusted profit element of its tax base under section six of this
article.
(e)
Multistate transportation businesses. -- taxpayers engaged
in the transportation business in this state and taxable in another
state or states, shall, notwithstanding subsection (f) of this
section, determine the adjusted profit element of his, her or its
tax base according to section seven of this article.
(f)
Allocation and apportionment.
(1)
Domiciled taxpayers. -- Except for taxpayers that are
financial organizations, the tax base of a person who has its
domicile in West Virginia but is also taxable in another state,
shall be determined by applying the allocation and apportionment rules under section five of this article.
(2)
Nondomiciled taxpayers. -- Except for taxpayers that are
financial organizations, the tax base of a person not having its
domicile in West Virginia but having nexus with West Virginia shall
be determined by applying the allocation and apportionment rules
under section five of this article.
§
11-28-5. Allocation and apportionment of tax base.
A taxpayer whose tax base is to be determined under this
section shall make the following allocations and apportionments of
his, her or its tax base:
(a)
Allocation of compensation paid. -- Compensation shall be
allocated to this state and included in the compensation element of
the tax base if the compensated person's base of operations for the
performance of his or her services is in this state, or, if there
is no base of operations for that person in any state, if the
person's services are controlled or directed from this state, or,
if no state can be identified from which the person's services are
controlled or directed, if that person is a resident of this state.
(b)
Allocation of rents and royalties paid. -- Rents and
royalties paid shall be allocated to this state and included in the
rents and royalties paid element of the tax base to the extent the
property for which they are paid, real, personal, tangible or
intangible, is used in this state by the taxpayer.
(c)
Apportionment of interest paid. -- Interest paid shall be apportioned to this state and included in the interest paid element
of the tax base based on the taxpayer's property factor.
(d)
Apportionment of profits. -- Except for taxpayers engaged
in the transportation business, a taxpayer's profit shall be
apportioned to this state and included in the profit element of the
tax base based on the taxpayer's apportionment factor.
(e)
Use of allocated and apportioned elements to determine tax
base. -- The taxpayer shall determine his, her or its tax base in
a taxable year by:
(1) Adding:
(A) The allocated amount of compensation paid;
(B) The allocated amount of rents and royalties paid;
(C) The result of multiplying the amount of interest paid by
the property factor;
(D) The result of multiplying his, her or its profit for the
taxable year by the apportionment factor; and
(E) The amount of allowable depreciation; and
(2) By subtracting from the sum determined under subparagraph
(1) above the amount of the taxpayer's qualified capital
expenditures for the taxable year.
(f)
Other methods of allocation.
(1)
General. -- If the allocation and apportionment provisions
of subsections (a) through (e) of this section do not fairly
represent the extent of the taxpayer's business activities in this state, the taxpayer may petition for or the tax Commissioner may
require, in respect to all or any part of the taxpayer's business
activities, if reasonable:
(A) Separate accounting;
(B) The modification of one of the factors used in the
apportionment factor;
(C) The inclusion of one or more additional factors in the
apportionment factor which will fairly represent the taxpayer's
business activity in this state; or
(D) The employment of any other method to effectuate an
equitable allocation or apportionment of the taxpayer's tax base.
Such petition shall be filed no later than the due date of the
annual return for the taxable year for which the alternative method
is requested, determined without regard to any extension of time
for filing such return, and the petition shall include a statement
of the petitioner's objections and of such alternative method of
allocation or apportionment as it believes to be proper under the
circumstances with such detail and proof as the Tax Commissioner
may require.
(2)
Burden of proof. -- In any proceeding before the Tax
Commissioner or in any court in which employment of one of the
methods of allocation or apportionment provided in subdivision (1)
of this subsection is sought, on the grounds that the other
allocation and apportionment provisions of this section do not fairly represent the extent of the taxpayer's business activities
in this state, the burden of proof would:
(A) Be on the Tax Commissioner, if the Tax Commissioner seeks
employment of one of such methods; or
(B) Be on the taxpayer, if the taxpayer seeks employment of
one of such other methods.
(3) Notwithstanding any other provisions of this section,
financial organizations shall use only the special apportionment
rules set forth in section six of this article.
§11-28-6. Special allocation and apportionment rules for financial
organizations.
(a)
West Virginia financial organizations taxable in another
state. -- A financial organization which has its domicile in this
state and which is taxable in another state may not apportion its
tax base under the general apportionment rule. Instead, those
financial organizations would allocate their entire tax base to
West Virginia without apportionment. Those financial organizations
would then be allowed a credit against their business activities
and profits tax for the amount of other similar tax lawfully paid
to another state in respect of the taxable year on that portion of
its tax base which was lawfully taxed in the other state.
(b)
Out-of-State financial organizations with business
activities in this state. -- A financial organization which does
not have its domicile in this state and which regularly engages in business activities in this state would allocate compensation,
rents and royalties paid and, to the extent includable, interest
paid in the same manner as other taxpayers. The profit element of
its tax base would be apportioned to this state by multiplying it
by the special gross receipts factor calculated as provided in this
section. The product of this multiplication is the portion of its
profit that is attributable to its business activity in this state.
(c)
Engaging in business, nexus presumptions and exclusions.
-- A financial organization that has its domicile in another state
is presumed to be regularly engaging in business in this state if
during any year it obtains or solicits business with twenty or more
persons within this state, or if the sum of the value of its gross
receipts attributable to sources in this state equals or exceeds
one million dollars. However, gross receipts from the following
types of property (as well as those contacts with this state
reasonably and exclusively required to evaluate and complete the
acquisition or disposition of the property, the servicing of the
property or the income from it, the collection of income from the
property or the acquisition or liquidation of collateral relating
to the property) would not be a factor in determining whether the
owner is engaging in business in this state:
(1) An interest in a real estate mortgage investment conduit,
a real estate investment trust or a regulated investment company;
(2) An interest in a loan backed security representing ownership or participation in a pool of promissory notes or
certificates of interest that provide for payments in relation to
payments or reasonable projections of payments on the notes or
certificates;
(3) An interest in a loan or other asset from which the
interest is attributed to a consumer loan, a commercial loan or a
secured commercial loan and in which the payment obligations were
solicited and entered into by a person that is independent and not
acting on behalf of the owner;
(4) An interest in the right to service or collect income from
a loan or other asset from which interest on the loan is attributed
as a loan described in the previous paragraph and in which the
payment obligations were solicited and entered into by a person
that is independent and not acting on behalf of the owner; and
(5) Any amounts held in an escrow or trust account with
respect to property described above.
(d)
Definitions. -- Certain terms used in this special
apportionment rule for banks and financial institutions would be
defined as follows:
(1) For purposes of this section, the term "deposit" means:
(A) The unpaid balance of money or its equivalent received or
held by a financial organization in the usual course of business
and for which it has given or it is obligated to give credit,
either conditionally or unconditionally, to a commercial checking, savings, time or thrift account, whether or not advance notice is
required to withdraw the credit funds, or which is evidenced by a
certificate of deposit, thrift certificate, investment certificate
or certificate of indebtedness or other similar name, or a check or
draft drawn against a deposit account and certified by the
financial organization, or a letter of credit or a traveler's check
on which the financial organization is primarily liable. However,
without limiting the generality of the term "money or its
equivalent," any such account or instrument must be regarded as
evidencing the receipt of the equivalent of money when credited or
issued in exchange for checks, drafts or for a promissory note upon
which the person obtaining any such credit or instrument is
primarily or secondarily liable or for a charge against a deposit
account or in settlement of checks, drafts or other instruments
forwarded to such bank for collection;
(B) Trust funds received or held by such financial
organization, whether held in the trust department or held or
deposited in any other department of such financial organization;
(C) Money received or held by a financial organization or the
credit given for money or its equivalent received or held by a
financial organization in the usual course of business for a
special or specific purpose, regardless of the legal relationship
thereby established, including without being limited to, escrow
funds, funds held as security for an obligation due the financial organization or other (including funds held as dealers' reserves)
or for securities loaned by the financial organization, funds
deposited by a debtor to meet maturing obligations, funds deposited
as advance payment on subscriptions to United States government
securities, funds held for distribution or purchase of securities,
funds held to meet its acceptances or letters of credit and
withheld taxes. However, there would not be included funds which
are received by the financial organization for immediate
application to the reduction of an indebtedness to the receiving
financial organization or under condition that the receipt thereof
immediately reduces or extinguishes such an indebtedness.
(D) Outstanding drafts (including advice or authorization to
charge a financial organization's balance in another such
organization), cashier's check, money orders or other officer's
checks issued in the usual course of business for any purpose, but
not including those issued in payment for services, dividends or
purchases or other costs or expenses of the financial organization
itself; and
(E) Money or its equivalent held as a credit balance by a
financial organization on behalf of its customer if such entity is
engaged in soliciting and holding such balances in the regular
course of its business.
(2) For purposes of this section, the term "sales" would mean
the gross receipts of a financial organization included in the gross receipts factor described in the rule regardless of their
source.
(e)
Special gross receipts factor. -- The special gross
receipts factor is a fraction, the numerator of which is the total
gross receipts of the taxpayer from sources within this state
during the taxable year and the denominator of which is the total
gross receipts of the taxpayer wherever earned during the taxable
year. However, neither the numerator nor the denominator of the
gross receipts factor would include receipts from obligations of
the United States government backed by the full faith and credit of
the United States or obligations of this state or any of its
political subdivisions.
(1)
Numerator. -- The numerator of the gross receipts factor
would include, in addition to items otherwise includable in the
sales factor under the general apportionment factor applicable to
most other taxpayers, the following:
(A) Gross receipts from the lease or rental of real or
tangible personal property (whether as the economic equivalent of
an extension of credit or otherwise) if the property is located in
this state;
(B) Interest income and other receipts from assets in the
nature of loans that are secured primarily by real estate or
tangible personal property if the security property is located in
the state. In the event the security property is also located in one or more other States, such receipts shall be presumed to be
from sources within this state subject to rebuttal based upon
factors described in rules to be promulgated by the Tax
Commissioner, including the factor that the proceeds of any such
loans were applied and used by the borrower entirely outside of
this state;
(C) Interest income and other receipts from consumer loans
which are unsecured or are secured by intangible property that are
made to residents of this state, whether at a place of business, by
traveling loan officer, by mail, by telephone or other electronic
means or otherwise;
(D) Interest income and other receipts from commercial loans
and installment obligations that are unsecured or are secured by
intangible property, if and to the extent that the borrower or
debtor is a resident of or is domiciled in this state. These
receipts are presumed to be from sources in this state and such
presumption may be overcome by reference to factors described in
rules to be promulgated by the Tax Commissioner, including the
factor that the proceeds of any such loans were applied and used by
the borrower entirely outside of this state;
(E) Interest income and other receipts from a financial
organization's syndication and participation in loans, under the
rules set forth in subparagraphs (A) through (D) above;
(F) Interest income and other receipts, including service charges from financial institution credit card, travel and
entertainment credit card receivables and credit card holders'
fees, if the borrower or debtor is a resident of this state or if
the billings for any such receipts are regularly sent to an address
in this state;
(G) Merchant discount income derived from financial
institution credit card holder transactions with a merchant located
in this state. In the case of merchants located within and without
this state, only receipts from merchant discounts attributable to
sales made from locations within this state shall be attributed to
this state. It shall be presumed, subject to rebuttal, that the
location of a merchant is the address shown on the invoice
submitted by the merchant to the taxpayer;
(H) Gross receipts from the performance of services are
attributed to this state if:
(i) The service receipts are loan-related fees including loan
servicing fees, and the borrower resides in this state except that,
at the taxpayer's election, receipts from loan-related fees which
are either:
(I) "Pooled" or aggregated for collective financial accounting
treatment;
(II) Manually written as nonrecurring extraordinary charges to
be processed directly to the general ledger may either be
attributed to a state based upon the borrowers' residences or upon the ratio that total interest sourced to that state bears to total
interest from all sources;
(ii) The service receipts are deposit-related fees and the
depositor resides in this state except that, at the taxpayer's
election, receipts from deposit-related fees which are either:
(I) "Pooled" or aggregated for collective financial accounting
treatment;
(II) Manually written as nonrecurring extraordinary charges to
be processed directly to the general ledger may either be
attributed to a state based upon the depositors' residences or upon
the ratio that total deposits sourced to that state bears to total
deposits from all sources.
(iii) The service receipt is a brokerage fee and the account
holder is a resident of this state;
(iv) The service receipts are fees related to estate or trust
services and the State's decedent was a resident of this state
immediately before death or the grantor who either funded or
established the trust is a resident of this state; or
(v) The service receipt is associated with the performance of
any other service not identified above and the service is performed
for an individual resident of or for a corporation or other
business domiciled in this state and the economic benefit of such
service is received in this state;
(I) Gross receipts from the issuance of travelers' checks and money orders if such checks and money orders are purchased in this
state; and
(J) All other receipts not attributed by this rule to a state
in which the taxpayer is taxable shall be attributed pursuant to
the laws of the state of the taxpayer's commercial domicile.
(2)
Denominator. -- The denominator of the gross receipts
factor would include all of the taxpayer's gross receipts from
transactions of the kind included in the numerator, but without
regard to their source or situs.
§11-28-7. Special apportionment formula for profits of
transportation businesses.
(a)
Barges. -- A barge company transporting property would
apportion the profits component of its tax base by the ratio that
revenue miles in this state bear to revenue miles everywhere during
the taxable year.
(b)
Motor carriers. -- An interstate motor carrier of property
or passengers would apportion the profits component of its tax base
to this state by the ratio that its total vehicle miles in this
state during the taxable year bears to total vehicle miles of the
motor carrier everywhere during the taxable year, except as
otherwise provided in this subsection.
(1)
Definitions. -- For purposes of the special apportionment
rule for motor carriers:
(A) "Motor carrier" means any person engaging in the transportation business and in doing so employs motor propelled
vehicles over roads in this state whether traveling on a scheduled
route or otherwise.
(B) "Vehicle mile" means the operation of a motor propelled
vehicle by a motor carrier over a distance of one mile in the
pursuit of its transportation business.
(2)
Exception. -- This special apportionment rule would not
apply to a motor carrier:
(A) Which neither owns nor rents real or tangible personal
property located in this state, which has made no pick-ups or
deliveries within this state and which has traveled less than fifty
thousand vehicle miles in this state during the taxable year; and
(B) Which neither owns nor rents any real or tangible personal
property located in this state, except vehicles, and which makes no
more than twelve trips into or through this state during a taxable
year.
(C) The mileage traveled under fifty thousand vehicle miles or
the mileage traveled in this state during the twelve trips into or
through this state may not represent more than five percent of the
total motor vehicle miles traveled in all states during the taxable
year.
(c)
Pipeline Companies. --
(1) When the tax base is derived from transportation of oil by
pipeline, the apportionment of profits would be based on barrel-miles. Profits apportioned to this state would be total
profits included in the tax base multiplied by the ratio that
barrel miles transported in this state bears to the barrel miles
transported by the taxpayer everywhere during the taxable year.
(2) When the tax base is derived from transportation of
natural gas by pipeline, the apportionment of profits would be
based on one thousand cubic-foot miles. Profits apportioned to
this state would be total profits included in the tax base
multiplied by the ratio that one thousand cubic-foot miles
transported in this state bear to the one thousand cubic-foot miles
transported by the taxpayer everywhere during the taxable year.
(d)
Railroads. -- Railroads transporting passengers or
property would apportion their profits based upon the ratio that
revenue miles in this state bear to revenue miles everywhere during
the taxable year.
§11-28-8. Imposition of tax; temporary initial rate of tax; short
taxable years.
(a)
General. -- An annual business activities and profits tax
is hereby imposed on each person exercising the privilege of
engaging in business activities in this state and in respect of the
benefits and protection conferred. Such tax shall be collected
from every taxpayer as that term is defined in section three of
this article.
(b)
Amount of tax and rate; effective date. -- On or about the first day of July, two thousand six, the amount of tax shall be two
percent of the amount of the taxpayer's tax base, as determined
under this article.
(c) Taxable years before July 1, 2005. -- For taxable years
beginning before the first day of July, two thousand five, the
amount of tax due under this article shall be two and two-tenths
percent of the taxpayer's tax base, as determined under this
article.
(d)
Short taxable years. -- When the taxpayer's taxable year
for federal income tax purposes is a short taxable year, the tax
due under this article shall be prorated based on the ratio which
the number of months in such short taxable years bears to twelve:
Provided, That when the taxpayer's first taxable year under this
article is less than twelve months, the taxpayer's liability shall
be prorated based upon the ratio which the number of months the
taxpayer was engaged in business activities in this state bears to
twelve.
§11-28-9. Exemptions.
The following persons and entities are exempt from the tax
imposed by this article to the extent provided in this section:
(a) Employees as defined in this article.
(b) Persons and entities only engaged in casual transactions
as defined in this article.
(c) The United States, the State of West Virginia, the other States of the United States, their agencies, political subdivisions
and instrumentalities.
(d) Persons and entities holding an ownership interest in a
qualified investment company, as defined in this article, that
confine their activities in this state to investment and other
activities consistent with their organizational purposes and those
incidental to or in support of those activities.
(e) Nonprofit organizations that do not regularly engage in
business activities in this state as that term is defined in this
article.
§11-28-10. Credits against tax.
(a)
Credit for tax paid by subsidiary. -- A parent taxpayer
that files a separate return under this article shall be allowed a
credit against such taxpayer's liability for the tax under this
article equal to the amount of taxes paid by its subsidiary for the
taxable year under this article multiplied by the percentage of the
parent taxpayer's ownership of the subsidiary. In the case of
corporations, that percentage shall be equal to the percentage of
stock of all classes owned by the parent taxpayer. In no case
shall any credit allowable by this section, which is not used on an
annual return, be carried forward or back, but instead the same
shall be forfeited.
(b)
Credit for unrealized investment incentive benefits. -- A
taxpayer who became entitled to claim the benefit of the credits against other taxes imposed under this chapter pursuant to the
provisions of articles thirteen-c, thirteen-d, thirteen-e,
thirteen-f, thirteen-g, thirteen-h, thirteen-i, thirteen-j,
thirteen-k, thirteen-l, thirteen-m, thirteen-n, thirteen-o,
thirteen-p, thirteen-q, thirteen-r or thirteen-s of this chapter,
but who would not receive the full economic benefit of such
entitlement solely by virtue of the repeal in the year two thousand
five of either one or more of the credit provisions, or of one or
more of the taxes against which those credits were allowed or of
the repeal of both, shall be entitled to a credit against the tax
imposed by this article in an amount equal to the present economic
value of the unused and unexpired credit the taxpayer had otherwise
earned as provided in one or more of those other articles of this
chapter. The entitlement to the credit allowed in this subsection,
and the means and timing of asserting it, shall be in accordance
with legislative regulations promulgated by the Tax Commissioner
pursuant to the provisions of article three, chapter twenty-nine-a
of this code.
§11-28-11. Accounting periods and methods of accounting.
(a)
General rule. -- For purposes of the tax imposed by this
article, a taxpayer's taxable year shall be the same as the
taxpayer's taxable year for federal income tax purposes.
(b)
Change of taxable year. -- If a taxpayer's taxable year is
changed for federal income tax purposes, the taxpayer's taxable year for purposes of this article shall be similarly changed.
(c)
Methods of accounting. --
(1)
Same as federal. -- A taxpayer's method of accounting
under this article shall be the same as the taxpayer's method of
accounting for federal income tax purposes. In the absence of any
method of accounting for federal income tax purposes, the accrual
method of accounting shall be used unless the Tax Commissioner, in
writing, consents to use of another method.
(2)
Change of accounting methods. -- If a taxpayer's method of
accounting is changed for federal income tax purposes, his, her or
its method of accounting for purposes of this article shall be
similarly changed.
§11-28-12. Annual returns; special rule for nonprofit
organizations; extensions of time.
(a)
In general. -- Every person subject to the tax imposed by
this article shall make and file an annual return for its taxable
year with the Tax Commissioner on or before the fifteenth day of
the fourth month following the close of the taxable year
. The
annual return shall include such information as the Tax
Commissioner may require for determining the amount of taxes due
under this article for the taxable year.
(b)
Special rule for nonprofit organizations. --
Notwithstanding the provisions of subsection (a) of this section,
when a return is required from a nonprofit organization under this article, the annual return shall be filed on or before the
fifteenth day of the fifth month following the close of the taxable
year.
(c)
Extensions of time for filing returns. -- The tax
Commissioner may grant a reasonable extension of time for filing
any returns or other document required by this article upon such
terms as he or she may by regulations prescribe. An extension of
time for an annual return for federal income tax purposes shall
automatically extend the time for filing any return or other
document required by this article for the same period as the
extension for filing such federal return. An extension of time for
filing a return shall not extend the time for payment of the tax.
§11-28-13. Method of filing.
(a)
Privilege to file consolidated return. -- An affiliated
group shall, subject to the provisions of this section and in
accordance with any regulations prescribed by the Tax Commissioner,
have the privilege of filing a consolidated return with respect to
the tax imposed by this article for the taxable year in lieu of
filing separate returns. The making of a consolidated return shall
be upon the condition that all persons which at any time during the
taxable year have been members of the affiliated group are included
in such return and consent to the filing of such return. The
filing of a consolidated return shall be considered as such
consent. When a person is a member of an affiliated group for a fractional part of the year, the consolidated return shall include
the tax base of such person for that part of the year during which
it is a member of the affiliated group.
(b)
Election binding. -- If an affiliated group elects to file
a consolidated return under this article, such election once made
shall not be revoked for any subsequent taxable year without the
written approval of the Tax Commissioner consenting to the
revocation.
(c)
Consolidated return --
financial organizations. -- An
affiliated group that includes one or more financial organizations
may elect under this section to file a consolidated return when
that affiliated group complies with all of the following rules:
(1) The affiliated group of which the financial organization
is a member must file a federal consolidated income tax return for
the taxable year;
(2) All members of the affiliated group included in the
federal consolidated return must consent to being included in the
consolidated return filed under this article. The filing of a
consolidated return under this article is conclusive proof of such
consent;
(3) The tax base of the affiliated group shall be the sum of:
(A) The pro forma tax base of all financial organizations
having their domicile in this state that are included in the
federal consolidated return, as shown on a combined pro forma West Virginia return prepared for such financial organizations; plus
(B) The pro forma West Virginia tax base of all financial
organizations not having their domicile in this state that are
included in the federal consolidated return, as shown on a combined
pro forma West Virginia return prepared for such financial
organization; plus
(C) The pro forma West Virginia tax base of all other members
included in the federal consolidated income tax return, as shown on
a combined pro forma West Virginia return prepared for all such
nonfinancial organization members, except that the tax base
apportionment factors and other items considered when determining
tax liability shall not be included in the pro forma return
prepared under this paragraph for a member that is totally exempt
from tax under section nine of this article, or for a member that
is subject to a different special industry apportionment rule
provided in this article. When a different special industry
apportionment rule applies, the tax base of a member(s) subject to
that special industry apportionment rule shall be determined on a
separate pro forma West Virginia return for the member(s) subject
to that special industry rule and the tax base so determined shall
be included in the consolidated return;
(4) The West Virginia consolidated return is prepared in
accordance with regulations of the Tax Commissioner promulgated as
provided in article three, chapter twenty-nine-a of this code; and
(5) The filing of a consolidated return does not distort the
tax base of the affiliated group. In any proceeding, the burden of
proof that the taxpayer's method of filing does not distort its tax
base under this article shall be upon the taxpayer.
(d)
Combined return. -- A combined return may be filed under
this article by a unitary group, including a unitary group that
includes one or more financial organizations, only pursuant to the
prior written approval of the Tax Commissioner. A request for
permission to file a combined return must be filed on or before the
statutory due date of the return, determined without inclusion of
any extension of time to file the return. Permission to file a
combined return may be granted by the Tax Commissioner only when
taxpayer submits evidence that conclusively establishes that
failure to allow the filing of a combined return will result in an
unconstitutional distortion of the measure of tax under this
article. When permission to file a combined return is granted,
combined filing will be allowed for the year(s) stated in the Tax
Commissioner's letter. The combined return must be filed in
accordance with regulations of the Tax Commissioner promulgated
under article three, chapter twenty-nine-a of this code.
(e)
Rules. -- The Tax Commissioner shall prescribe such rules
as he or she may deem necessary in order that the tax liability of
any affiliated group filing a consolidated return, or of any
unitary group filing a combined return, and of each member of an affiliated or unitary group, both during and after the period of
affiliation, may be returned, determined, computed, assessed,
collected and adjusted, in such manner as the Tax Commissioner
deems necessary to clearly reflect tax liability under this article
and the factors necessary for the determination of such liability,
and in order to prevent avoidance of such tax liability.
(f)
Computation and payment of tax. -- In any case in which
a consolidated or combined return is filed, or required to be
filed, the tax due under this article from the affiliated or
unitary group shall be determined, computed, assessed, collected
and adjusted in accordance with regulations prescribed by the Tax
Commissioner, in effect on the last day prescribed by section
twelve of this article for the filing of such return, and such
affiliated or unitary group, as the case may be, shall be treated
as the taxpayer. However, when any member of an affiliated or
unitary group that files a consolidated or combined return under
this article is allowed to claim credit against its tax liability
under this article for payment of any other tax, the amount of
credit allowed may not exceed that member's proportionate share of
the affiliated or unitary group's precredit tax liability under
this article, as shown on its pro forma return.
(g)
Consolidated or combined return may be required. -- If any
affiliated group has not elected to file a consolidated return, or
if any unitary group has not applied for permission to file a combined return, the Tax Commissioner may require such taxpayers to
make a consolidated or combined return, as the case may be, in
order to clearly reflect their tax base under this article.
§11-28-14. Time and place for paying tax shown on returns.
(a)
In general. -- The person required to make the annual
return required by this article shall, without assessment or notice
and demand from the Tax Commissioner, pay such tax at the time and
place fixed for filing the return (determined without regard to any
extension of time for filing the return).
(b)
Date fixed for payment of tax. -- The date fixed for
payment of the taxes imposed by this article shall be deemed to be
a reference to the last day fixed for such payment (determined
without regard to any extension of time for paying the tax).
§11-28-15. Extensions of time for paying tax.
(a)
Amount determined on return. -- The Tax Commissioner may
extend the time for payment of the amount of the tax shown, or
required to be shown, on any return required by this article (or
any periodic installment payments), for a reasonable period not to
exceed six months from the date fixed for payment thereof.
(b)
Amount determined as deficiency. -- Under regulations
prescribed by the Tax Commissioner, he or she may extend the time
for the payment of the amount determined as a deficiency of the
taxes imposed by this article for a period not to exceed eighteen
months from the date fixed for payment of the deficiency. In exceptional cases, a further period of time not to exceed twelve
months may be granted. An extension under this subsection (b) may
be granted only where it is shown to the satisfaction of the Tax
Commissioner that payment of a deficiency upon the date fixed for
the payment thereof will result in undue hardship to the taxpayer.
(c)
No extension for certain deficiencies. -- No extension
shall be granted under this section for any deficiency if the
deficiency is due to negligence, to intentional disregard of rules,
or to fraud with intent to evade tax.
§11-28-16. Declaration and payment of estimated tax.
(a)
Requirement of declaration. -- Every taxpayer subject to
tax under this article shall file a declaration of estimated tax
for the taxable year if the taxpayer's liability for tax under this
article can reasonably be expected to exceed twelve thousand
dollars for the taxable year. A taxpayer not required by this
section to file a declaration and pay estimated tax may elect to so
file and pay.
(b)
Definition of estimated tax. -- The term "estimated tax"
means the amount which a taxpayer estimates to be his, her or its
liability under this article for the taxable year.
(c)
Contents of declaration. -- The declaration shall contain
such information as the Tax Commissioner may, by rules or
regulations, require, including, but not limited to, such detailed
information as may be necessary to estimate the taxpayer's liability under section eight of this article.
(d)
Time for filing declaration. -- A declaration of estimated
tax shall be filed on or before the fifteenth day of the fourth
month of the taxable year.
(e)
Amendment of declaration. -- A taxpayer may amend his, her
or its declaration at any time during the taxable year in
accordance with regulations prescribed by the Tax Commissioner. If
any amendment of a declaration is filed by a taxpayer, the
remaining installments, if any, shall be rateably increased or
decreased (as the case may be) to reflect any increase or decrease
in the estimated tax by reason of such amendment. If any amendment
is made after the fifteenth day of the ninth month of the taxable
year, any increase in the estimated tax by reason thereof shall be
paid at the time of making such amendment.
(f)
Payment of estimated tax. -- The estimated tax shall be
paid in four equal installments. At the time the declaration of
estimated payment is filed, the taxpayer shall pay one fourth of
the estimated tax liability for the taxable year. The second,
third and fourth installments shall be paid on the following
fifteenth day of the sixth, ninth and twelfth months of the taxable
year, respectively.
(g)
Application to short taxable year. -- This section shall
apply to a taxable year of less than twelve months in accordance
with regulations of the Tax Commissioner.
(h)
Installment paid in advance. -- Any taxpayer may elect to
pay any installment of his, her or its estimated tax prior to the
date prescribed for its payment.
§11-28-17. Requirements concerning content and signing of returns;
notices, records and statements; criminal penalties;
general procedure and administration.
(a)
General. -- The Tax Commissioner may prescribe regulations
as to the keeping of records, the content and form of returns and
statements, and the filing of copies of federal income tax returns
and determinations. The Tax Commissioner may require any person,
by regulation or notice served upon such person, to make such
returns, render such statement, or keep such records, as the Tax
Commissioner may deem sufficient to show whether or not such person
is liable for tax under this article.
(b)
Notice of qualification as receiver, etc. -- Every
receiver, trustee in bankruptcy, assignee for benefit of creditors,
or other like fiduciary shall give notice of his, her or its
qualification as such to the Tax Commissioner, as may be required
by regulation.
(c)
Signing of returns and other documents. -- Any return, s
statement or other document required to be made under the
provisions of this article shall be signed in accordance with
instructions or regulations prescribed by the Tax Commissioner.
The fact that an individual's name is signed on the return shall be prima facie evidence that such individual is authorized to sign the
return on behalf of the taxpayer. The fact that an individual's
name is signed to a return, statement or other document shall be
prima facie evidence for all purposes that the return, statement or
other document was actually signed by that individual. Except as
otherwise provided by the Tax Commissioner, any return, declaration
or other document required to be made under this article shall
contain or be verified by a written declaration that it is made
under the penalties of perjury.
(d)
Records. -- Every taxpayer liable for reporting or paying
taxes under this article shall keep such records, receipts,
invoices, and other pertinent papers in such forms as the Tax
Commissioner may require. Every taxpayer shall keep such records
for not less than three years after the annual return is filed
under this article, unless the Tax Commissioner in writing
authorizes their earlier destruction. An extension of time for
making an assessment shall automatically extend the time period for
keeping the records for all years subject to audit covered in the
agreement.
(e)
Criminal penalties. -- Each and every provision of the
"West Virginia Tax Crimes and Penalties Act" set forth in article
nine of this chapter shall apply to the tax imposed by this article
with like effect as if said act were applicable only to the tax
imposed by this article and were set forth in extenso in this article.
(f)
General procedure and administration. -- Each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in articles ten and ten-a of this chapter, shall
apply to the tax imposed by this article with like effect as if
said act were applicable only to the tax imposed by this article
and were set forth in extenso in this article.
§11-28-18. Place for filing returns or other documents.
Tax returns, statements or other documents, or copies thereof,
required by this article or by regulations shall be filed with the
Tax Commissioner by delivering it, in person or by mail, to his or
her office in Charleston, West Virginia:
Provided, That the Tax
Commissioner may, by regulation, prescribe the place for filing
such returns, statements or other documents, or copies thereof.
§11-28-19. Severability.
If any provision of this article or the application thereof
shall for any reason be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder of said article, but shall be confined
in its operation to the provision thereof directly involved in the
controversy in which such judgment shall have been rendered, and,
unless otherwise expressly ordered in such judgment, the
applicability of such provision to other persons or circumstances
shall not be affected thereby.
§11-28-20. Legislative rules.
The Tax Commissioner shall propose for promulgation pursuant
to the provisions of article three, chapter twenty-nine-a of this
code such legislative rules as may be necessary to carry out the
purposes of this article, including, but not limited to, rules
relating to definitions of terms and allocation and apportionment
of elements of the tax base.
§11-28-21. Effective date.
The provisions of this article shall take effect on the first
day of January of the first year following the year in which the
voters ratify the Fair Taxation Amendment to the Constitution of
this state.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-4a. Prospective termination of tax.
The tax imposed in section four of this article is repealed
effective on the first day of January of the first year following
the year in which the voters ratify the Fair Taxation Amendment to
the Constitution of this state.
NOTE: The purpose of this bill is to rewrite the tax laws of
the state to become effective upon the voters' ratification of the Fair Taxation Amendment to the Constitution of West Virginia.
§§11-1C-1c; 11-5-15; 11-6D-9; 11-6F-7; 11-8-1a, 2a and 3a;
§11-10-11b; 11-13B-19; 11-13C-17; 11-13D-11; 11-13E-8; 11-13F-6;11-
13G-6; 11-13J-13; 11-13K-7; 11-13N-13; 11-13Q-22; 11-13R-13; 11-
13S-11; 11-15-34; 11-15A-30; 11-19-13; 11-21-8i; and 96; 11-23-29;
11-24-23h and 43; 11-27-37; and 17A-3-4a are new; therefore
strike-throughs and underscoring have been omitted.
§11-12-75 has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
Article 5B, Chapter 7; Article 13D, Chapter 8; Articles 15C,
21A and 28, Chapter 11 are new; therefore, strike-throughs and
underscoring have been omitted.