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Introduced Version House Bill 2860 History

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hb2860 intr 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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