R
H. B. 2860
(By Mr. Speaker, Mr. Kiss)
[Introduced March 3, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §11-10A-19 of the Code of West
Virginia, 1931, as amended, relating to direct appeals to the
West Virginia Office of Tax Appeals.
Be it enacted by the Legislature of West Virginia:
That §11-10A-19 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 10A. WEST VIRGINIA OFFICE OF TAX APPEALS.
§11-10A-19. Judicial review of Office of Tax Appeals' decisions.
(a) Either the taxpayer or the Commissioner, or both, may
appeal
the final decision or order of the Office of Tax Appeals by
taking an appeal
on the existing record to the
circuit courts
Supreme Court of Appeals of this state within sixty days after
being served with notice of the final decision or order.
Unless
the petition for appeal is filed within the sixty-day period, no
appeal or review shall be allowed, as this time limitation, without extension for any reason, is a condition of the right to such
appeal or review and hence jurisdictional.
(b) The Office of Tax Appeals,
or one or more of its
administrative
law judges or executive director, may not be made a
party in any judicial review of a decision or order it issued.
(c)(1) If the taxpayer appeals, the appeal may be taken in the
circuit court of Kanawha County or any county:
(A)Wherein the activity sought to be taxed was engaged in;
(B)Wherein the taxpayer resides; or
(C)Wherein the will of the decedent was probated or letters
of administration granted;
(2) If the tax commissioner appeals, the appeal may be taken
in
Kanawha County: Provided, That the taxpayer shall have the
right to remove the appeal to the county:
(A) Wherein the activity sought to be taxed was engaged in;
(B)Wherein the taxpayer resides; or
(C)Wherein the will of the decedent was probated or letter
of administration granted.
(3) In the event both parties appeal to different circuit
courts, the appeals shall be consolidated. In the absence of
agreement by the parties, the appeal shall be consolidated in the
circuit court of the county in which the taxpayer filed the
petition for appeal.
(d) (c) The appeal proceeding shall be instituted by filing a
petition
for appeal with the
circuit Supreme Court
of Appeals, or
the a justice thereof in vacation, within the sixty-day period
prescribed in subsection (a) of this section.
A copy of the
petition for appeal shall be served on all parties appearing of
record, other than the party appealing, by registered or certified
mail. The petition for appeal shall state whether the appeal is
taken on questions of law or questions of fact, or both, and set
forth with particularity the items of the decision objected to,
together with the reasons for the objections.
(d) A copy of the filed petition for appeal shall be served
by the clerk of the Supreme Court of Appeals on the Executive
Director of the Office of Tax Appeals and on all parties appearing
of record, other than the appellant, by registered or certified
mail. The Office of Tax Appeals shall, within fifteen days after
receipt of the copy of the filed petition for appeal, file with the
clerk of the Supreme Court of Appeals the record of the proceedings
had before it, including all the evidence. The appellant shall be
responsible for the costs of preparing, copying, and transmitting
the record to the Supreme Court of Appeals. The Office of Tax
Appeals will provide a copy of the record to a taxpayer appealing
to the Supreme Court of Appeals once the taxpayer has remitted to
the Office of Tax appeals full payment of the costs of preparing,
copying, and transmitting such record to the court.
(e)
After receipt of the record, the Supreme Court of Appeals,
or a justice thereof in vacation, shall determine whether or not a
plenary review of the matter is granted. If such plenary review is
granted, and if If the appeal is of an assessment, except a
jeopardy assessment for which security in the amount thereof was
previously filed with the Tax Commissioner, then within ninety days
after the petition for appeal is filed
by a taxpayer, or sooner if
ordered by the
circuit Supreme Court
of Appeals, the
petitioner
taxpayer-appellant shall file with the clerk of the
circuit Supreme
Court
of Appeals a cash bond or a corporate surety bond approved by
the clerk. The surety must be qualified to do business in this
state. These bonds shall be conditioned upon the
petitioner
taxpayer-appellant performing the orders of the court. The penalty
of this bond shall be not less than the total amount of tax or
revenue plus additions to tax, penalties and interest for which the
taxpayer was found liable in the
administrative final decision of
the office of Tax Appeals. Notwithstanding the foregoing and in
lieu of the bond, the Tax Commissioner, upon application of the
petitioner taxpayer-appellant, may upon a sufficient showing by the
taxpayer, certify to the clerk of the
circuit Supreme Court
of
Appeals that the assets of the taxpayer are adequate to secure
performance of the orders of the court:
Provided, That if the Tax
Commissioner refuses to certify that the assets of the taxpayer or
other indemnification are adequate to secure performance of the orders of the court, then the taxpayer
-appellant may apply to the
circuit Supreme Court of
Appeals for the certification. No bond
may be required of the Tax Commissioner.
(f)The circuit court shall hear the appeal as provided in
section four, article five, chapter twenty-nine-a of this code:
Provided, That when the appeal is to review a decision or order on
a petition for refund or credit, the court may determine the legal
rights of the parties, but in no event shall it enter a judgment
for money.
(f) In any plenary review of a final decision or final order
of
the Office of Tax Appeals, the Supreme Court of Appeals shall
review any factual findings of the Office of Tax Appeals that are
at issue on appeal under a substantial evidence standard, not by
conducting a de novo reweighing of the evidence, and shall review
any issues of law in the following manner:
(1) The Office of Tax Appeals is a specialized quasi-judicial
agency
that exists to decide state taxation issues; accordingly,
the Supreme Court of Appeals shall afford great weight to a
conclusion of law of the Office of Tax Appeals that involves the
area of expertise of the Office of Tax Appeals;
(2) With respect to any issue of law that does not involve the
area of expertise of the Office of Tax Appeals, the Supreme Court
of Appeals may reverse or modify such a conclusion of law of the
Office of Tax Appeals only if such a conclusion is in clear violation of a constitutional or statutory provision or is
otherwise a clearly erroneous conclusion of law as stated with
specificity by the Supreme Court of Appeals.
(g) Unless the Tax Commissioner appeals an adverse court
decision
on a question of federal law, the Commissioner, upon
receipt of the certified order of the
Supreme Court
of Appeals,
shall promptly correct his or her assessment or issue his or her
requisition on the treasury or establish a credit for the amount of
an overpayment.
(h) Either party may appeal to the supreme court of appeals as
provided in article six, chapter twenty-nine-a of this code.
NOTE: The purpose of this bill is to provide for direct
appeals to the West Virginia Supreme Court of Appeals from the
final decisions or final orders of the West Virginia Office of Tax
Appeals.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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