Senate Bill No. 40
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
____________
[Introduced January 17, 1994; referred to the Committee
on Small Business; and then to the Committee on Finance.]
____________
A BILL to repeal article thirteen-c; chapter eleven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; and to further amend said chapter by adding thereto
a new article, designated article thirteen-i, relating to
the creation of a tax credit to replace the business
investment and jobs expansion tax credit; setting forth
legislative findings; providing definitions; specifying
allowance of credit; determination of credit; specifying
method for determining median compensation; specifying
application of credit; setting forth maximum new jobs
computation method; specifying new jobs creation period;
setting forth method for determining initial number of new
jobs; specifying method for determining base period and
average base period jobs; specifying annual redetermination
of new jobs; median compensation and credit; specifying
ten-year credit application period; providing for no credit
carryover; setting forth restrictions and limitations on
credits; requiring certification of credit; providing for
forfeiture of credit penalty for failure to timely file
application for credit certification; providing absolute
limitation for credit certified in one year on ten million
dollars; providing transition rules to limit the effect of
the repeal of the business investment and jobs expansion tax
credit act for persons entitled to the business investment
and jobs expansion tax credit or in the process of seeking
the business investment and jobs expansion tax credit;
providing for transfer of the credit to successors;
requiring public disclosure of names, addresses and amounts
of credit asserted by brackets for taxpayers seeking to
apply credit against tax; requiring record keeping for
identification of new jobs created; specifying
interpretation and construction; specifying that there shall
be no vested interest in credit and that credit is taken
subject to repeal, alteration or limitation thereof at any
time by the Legislature and all credit is taken with notice
thereof; and setting forth a severability provision.
Be it enacted by the Legislature of West Virginia:
That article thirteen-c, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; and that said chapter be further amended by adding
thereto a new article, designated article thirteen-i, to read as
follows:
ARTICLE 13I. THE JOBS CREATION TAX CREDIT.
§11-13I-1. Legislative finding.
The Legislature finds that the establishment of new and
expanded business and industry in this state is conducive to
economic development and the expansion, growth and improvement of
the economy of the state, and that such expansion, growth and
improvement in conjunction with the creation of new jobs and
employment opportunities in this state are in the public
interest, and promote the general welfare of the people of this
state.
In order to encourage the creation of jobs and the
establishment of new and expanded business and industry in this
state, there is hereby established the jobs creation tax credit.
§11-13I-2. Definitions.
(a) Any term used in this article shall have the same
meaning as when used in a comparable context in article
twenty-four of this chapter, unless a different meaning is
clearly required by the context of its use or by definition in
this article.
(b) For purposes of this article, the following definitions
apply:
(1) Controlled group. -- The term "controlled group" means
the controlled group as determined under federal income tax law.
(2) Eligible taxpayer. -- The term "eligible taxpayer"
means a taxpayer which has created at least twenty new jobs over
the new jobs creation period specified in section five of this
article on or after the first day of July, one thousand ninehundred ninety-four, and which otherwise qualifies for the tax
credit authorized under this article. The term "eligible
taxpayer" includes an affiliated group of corporations which
elects to file a consolidated, unitary or combined tax return
under article twenty-four of this chapter, which group contains
at least one affiliated person which has created at least twenty
jobs over the new jobs creation period specified in section five
of this article on or after the first day of July, one thousand
nine hundred ninety-four, and which otherwise qualifies for the
tax credit authorized under this article.
(3) Employee. -- The term "employee" means and is limited to
a natural person subject to the West Virginia personal income tax
under article twenty-one of this chapter, hired by a taxpayer to
fill an employment position or job in West Virginia.
(4) Natural person. -- The term "natural person" means a
human being.
(5) New employee. --
(A) The term "new employee" means a person residing and
domiciled in this state, hired by the taxpayer to fill a position
or a job in this state which previously did not exist in the
taxpayer's business enterprise in this state prior to the
commencement of the new jobs creation period specified in section
five of this article. In case shall the number of new employees
exceed the total net increase in the taxpayer's employment in
this state over the new jobs creation period and thereafter, over
the ten year credit application period.
For purposes of this definition, the total net increase or
change in the number of jobs shall be determined based upon all
West Virginia employment of all members of the taxpayer's
controlled group and upon all West Virginia employment of all
persons which provide contract labor to the taxpayer on the basis
of any contract having a term of more than thirty days, or a
duration, through customary execution of multiple contracts or
contract renewals, of more than thirty days; or which provide
contracted services to the taxpayer on the basis of any contract
having a term of more than thirty days, or a duration, through
customary execution of multiple contracts or contract renewals,
of more than thirty days.
(B) A person shall be deemed a "new employee" only if such
person's duties in connection with the operation of the business
facility are on:
(i) A regular, full-time and permanent basis, or
(ii) A regular, part-time and permanent basis: Provided,
That such part time employee is customarily performing such
duties at least twenty hours per week for at least six months
during the taxable year.
(C) For purposes of this article, employment duties are
performed on a full-time basis if employment duties are performed
for at least one hundred forty hours per month at a wage not less
than the prevailing state or federal minimum wage, depending on
which minimum wage provision is applicable to the business.
(D) For purposes of this article, employment duties are notperformed on a permanent basis if the employment is temporary or
seasonal. Therefore, temporary or seasonal employees will not be
considered new employees for purposes of this article. Any
person who holds a job for less than six months during the
taxable year, or any person who holds a job but works for less
than at least twenty hours per week for at least six consecutive
months shall not qualify as a new employee for purposes of this
article.
(6) New job.-- The term "new job" means a job which did not
exist in this state prior to the commencement of the new jobs
creation period specified in section five of this article, and
which is filled by a new employee.
(7) Person. -- The term "person" means and includes a legal
or natural person and is deemed interchangeable with the term
"corporation" for purposes of this article.
(8) State. -- The term "state" means any state of the United
States, the District of Columbia, the Commonwealth of Puerto
Rico, any territory or possession of the United States, or any
foreign country or political subdivision thereof.
(9) Taxable year. -- The term "taxable year" means the
taxable year for which the taxable income of the taxpayer is
computed under the federal income tax.
(10) Tax commissioner. -- The term "tax commissioner" means
the tax commissioner of the state of West Virginia or the
delegate of the tax commissioner.
(11) Taxpayer. -- The term "taxpayer" means any personsubject to the tax imposed by article twenty-one of this chapter
on business income not derived from wages, salaries or employee
remuneration, or any person subject to the tax imposed by article
twenty-three of this chapter, or subject to the tax imposed by
article twenty-four of this chapter.
(12) This code. -- The term "this code" means the code of
West Virginia, one thousand nine hundred thirty-one, as amended.
(13) This state. -- The term "this state" means and shall be
limited to the state of West Virginia.
§11-13I-3. Credit allowed for jobs creation.
(a) Credit allowed. -- An eligible taxpayer shall be allowed
a credit under this article, the amount of which shall be
determined as provided in subsection (b) of this section.
(b) Determination of credit. -- The amount of credit allowed
by subsection (a) of this section shall be an amount calculated
by multiplying the amount of credit per job, determined under the
following schedule, by the number of new jobs in place.
If median compensation is: The amount of
credit per job
is:
less than $7,500 $0
$7,500 to $12,500 $3,750
more than $12,500 but not more than $25,000 $7,500
more than $25,000 but not more than $35,000 $12,500
more than $35,000 $17,500
For employees holding jobs in a facility located in, or who
customarily work in, an empowerment zone or enterprise community
duly and specifically designated as such under West Virginia
state law or federal law, the amount of credit per job shall beone hundred fifty percent of the amounts shown in this schedule.
(1) Median compensation. --
(A) For purposes of this article, "median compensation"
shall be determined by arranging the annual compensation amount
of each employee hired during or after the new jobs creation
period, and who was an employee of the taxpayer during the tax
year for which the median compensation amount is being
calculated, in a hierarchy, ranking such amounts from lowest to
highest and then selecting that element from the range of amounts
so arranged which has an equal number of elements which rank
above and below it. In the case of a range having an even number
or elements, the median compensation is the average of the two
contiguous elements in the range of elements which have an equal
number of elements which rank above and below them. This would
be one half of the sum of the highest ranked element of the lower
half of the range of numbers, and the lowest ranked element of
the upper half of the range of numbers.
(B) For purposes of determining the median compensation, the
range of numbers used in the procedure set forth in part (A) of
this subdivision shall not include the annual compensation amount
of any person who owns ten percent or more of the business, with
such ownership to be determined under rules set forth in
subsection (b), section 267 of the Internal Revenue Code of 1986;
nor shall it include the annual compensation of any persons who
are related individuals, as defined in subsection (i), section 51
of the Internal Revenue Code of 1986, related to the taxpayer orto any such person who owns ten percent or more of the business.
(C) Except for compensation excluded elsewhere in this
section, for purposes of determining median compensation, the
range of numbers used in the procedure set forth in part (A) of
this subdivision, shall include the annual compensation paid to
all employees hired during or after the new jobs creation period
specified in section five of this article, including annual
compensation of employees who qualify as full-time new employees,
employees who qualify as part-time new employees, employees who
do not qualify as new employees, including full-time employees,
temporary employees, seasonal employees, part-time employees, and
employees who work less than twenty hours per week or less than
six months during the taxable year.
(D) The range of numbers used in the procedure set forth in
part (A) of this subdivision, shall not include the annual
compensation paid to employees hired prior to the commencement of
the new jobs creation period specified in section five of this
article.
(E) For purposes of this section, the term "annual
compensation amount" means the amount of wages, salaries and
other compensation paid to, or accrued for, an employee, as
reported by the employer for federal income tax purposes on the
federal form W2 issued by the employer for the employee.
§11-13I-4. Application of credit.
The credit allowed by this article shall be applied over a
period not to exceed ten consecutive tax years:
(1) Against up to eighty percent of the eligible taxpayer's
annual liability for the West Virginia business franchise tax
imposed under article twenty-three of this chapter.
(2) If any credit remains after application as authorized in
subdivision (1) of this subsection, against up to eighty percent
of the eligible taxpayer's annual liability for the tax imposed
by article twenty-one of this chapter on business income not
derived from wages, salaries or employee remuneration, or against
up to eighty percent of the eligible taxpayer's annual liability
for the West Virginia corporation net income tax imposed under
article twenty-four of this chapter, as appropriate.
§11-13I-5. Maximum new jobs computation, new jobs creation
period, initial determination of the number of new jobs.
(a) Maximum new jobs computation. -- With the annual tax
return for the taxes imposed by article twenty-one or twenty-four
of this chapter, filed for the taxable year beginning next after
the end of the new jobs creation period, the taxpayer seeking to
apply this credit against tax shall certify the number of new
jobs created over the new jobs creation period, as determined
under this section. This number shall be the maximum number of
new jobs to be used over the ten year credit period for the
purposes of determining the amount of credit allowed under
section three of this article and section eleven of this article.
(1) Should the number of new jobs thus determined for the
new jobs creation period be less than twenty, the taxpayer shall
not be entitled to any tax credit pursuant to this article.
(b) The new jobs creation period shall be a period of
twenty-four months, beginning on the commencement date
specifically designated by the taxpayer in the application for
credit filed pursuant to the requirements of section nine of this
article, and ending on the last day of the twenty-fourth
succeeding calendar month, inclusive of the month of the
commencement date. The said commencement date to be designated
by the taxpayer shall be limited to the first day of any calendar
month of the Gregorian calendar in common use.
(c) The number of new jobs created over the new jobs
creation period shall be the excess of:
(1) The average number of new jobs in place over the last
twelve months of the new jobs creation period, determined by
calculating the average of the number of new jobs in place on the
first day of each month and the last day of each month, and
dividing the sum of those twelve average numbers by twelve, over:
(2) The average number of base period jobs in place with the
taxpayer over the base period, determined by calculating the
average of the number of base period jobs in place on the first
day of each month and the last day of each month of the base
period, and dividing the sum of those twelve numbers by twelve.
(d) The base period. -- The base period for purposes of this
section shall be the twelve calendar month period immediately
prior to the commencement date of the new jobs creation period
designated by the taxpayer in the application for credit filed
pursuant to the requirements of section nine of this article. This twelve month base period shall commence with the first day
of the twelfth calendar month immediately preceding the
designated new jobs creation period commencement date, and shall
end on the date immediately preceding the designated new jobs
creation period commencement date.
(e) Jobs to be counted in the base year of employment. --
(1) For purposes of calculating the average number of base
period jobs in place over the base period, the number of jobs
shall be determined based upon all West Virginia employment of
all members of the taxpayer's controlled group and upon all West
Virginia employment of all persons which provide contract labor
to the taxpayer on the basis of any contract having a term of
more than thirty days, or a duration, through customary execution
of multiple contracts or contract renewals, of more than thirty
days; or which provide contracted services to the taxpayer on the
basis of any contract having a term of more than thirty days, or
a duration, through customary execution of multiple contracts or
contract renewals, of more than thirty days.
(2) A job shall be included in the count of the base number
of jobs if the job is:
(A) A regular, full-time and permanent job, or
(B) A regular, part-time and permanent job: Provided, That
the employee holding such regular, part-time and permanent job is
customarily performing the duties of such job at least twenty
hours per week for at least six months during the taxable year.
(i) For purposes of this article, the term "full-time job"or "full-time employment" means a job entailing, or employment
for, at least one hundred forty hours per month at a wage not
less than the prevailing state or federal minimum wage, depending
on which minimum wage provision is applicable to the business.
(ii) For purposes of this article, the term "permanent job"
or "permanent employment" does not include a job or employment
that is temporary or seasonal. Therefore, temporary or seasonal
employees will not be counted as holders of base period jobs for
purposes of this article. Any person who holds a job for less
than six months during the taxable year, or any person who holds
a job but works for less than twenty hours per week for at least
six consecutive months shall not qualify as a holder of a base
period job for purposes of this article.
§11-13I-6. Annual redetermination of new jobs, median
compensation, and credit.
(a) Annual redetermination of new jobs and credits. --
(1) For each tax year subsequent to the first tax year
beginning immediately after the end of the new jobs creation
period, all taxpayers seeking to apply this credit shall annually
redetermine the number of new jobs in place with the taxpayer.
Should the number of new jobs thus redetermined in any tax year
fall below twenty, the taxpayer shall lose all entitlement to
this credit for such tax year. Should the number of new jobs
thus redetermined in any subsequent year of the remaining portion
of the ten year credit application period be equal to or greater
than twenty, then the taxpayer shall regain entitlement to thecredit for the remaining portion of the ten year credit
application period, so long as the other requirements for credit
entitlement are maintained pursuant to the terms of this article.
(2) The number of new jobs in place to be used for
calculation of the credit allowed under this article for the
first tax year beginning immediately after the end of the new
jobs creation period, shall be the number of new jobs created
over the new jobs creation period, as specified in section five
of this article.
(3) The median compensation amount to be used for each and
every tax year for which the taxpayer seeks to apply the credit
allowed under this article, including the first tax year
beginning immediately after the end of the new jobs creation
period, shall be the median compensation amount for the tax year
determined in accordance with section three of this article.
(b) For purposes of subsection (a) of this section, the
number of new jobs redetermined for each year subsequent to the
first tax year beginning immediately after the end of the new
jobs creation period shall be made by determining the excess of:
(1) For tax years of twelve months:
(A) The average number of new jobs in place over the twelve
months of the tax year, determined by calculating the average of
the number of new jobs in place on the first day of each month
and the last day of each month, and dividing the sum of those
twelve average numbers by twelve; over:
(B) The average number of base period jobs in place with thetaxpayer over the base period, determined as specified under
section five of this article.
(2) For tax years of other than twelve months duration:
(A) The average number of new jobs in place over the number
of months, or parts thereof, in the tax year, such average number
determined by calculating the average of the number of new jobs
in place on the first day of each month and the last day of each
month, and dividing the sum of those average numbers by the
number of months, or parts thereof, in the tax year; over:
(B) The average number of base period jobs in place with the
taxpayer over the base period, determined as specified under
section five of this article.
(c) Annual redetermination of credit. --
(1) The amount of credit available to the taxpayer under
this article for each year subsequent to the first tax year
beginning immediately after the end of the new jobs creation
period shall be redetermined as specified in this section.
(2) The amount of credit available to the taxpayer, as
recalculated each tax year shall be the lesser of:
(A) The amount of credit calculated under section three of
this article using the maximum number of new jobs determined
pursuant to section five of this article and median compensation
calculated for the first tax year beginning subsequent to the end
of the new jobs creation period under section three of this
article, less total credit depleted through application against
tax for all tax years, or
(B) The amount of credit calculated for the tax year using
the median compensation amount determined for each tax year as
specified in section three of this article and the average number
of new jobs in place for the tax year, as determined under
subsection (b) of this section, less total credit depleted
through application against tax for all tax years.
§11-13I-7. Ten year credit application period; no carryover of
credit.
The credit allowed under this article shall be applied
annually for a period not to exceed ten consecutive tax years,
beginning in the first tax year beginning subsequent to the end
of the new jobs creation period specified in section five of this
article. Any amount of credit remaining after the expiration of
the said ten consecutive tax years shall be forfeited, and shall
not carry over to any other taxable year.
§11-13I-8. Restriction and limitations on credit allowed by this
article.
(a) The amount of annual credit allowed under this article
shall be limited to the lesser of:
(1) Eighty percent of the tax liability for the tax imposed
for the taxable year on the eligible taxpayer under articles
twenty-three and either article twenty-one on nonwage business
income or article twenty-four, whichever is appropriate, of this
chapter, or
(2) The amount of the credit remaining available to the
taxpayer as determined under section eleven and annually depletedas applied against tax each year until used up or until the end
of the tenth year of the credit application period.
(b) The credit allowed under this article shall be available
only to those persons engaged in the following industries or
businesses in West Virginia:
(1) Manufacturing, including, but not limited to, chemical
processing and chemical manufacturing, manufacture of wood
products and forestry products, manufacture of aluminum,
manufacture of paper, paper processing, recyclable paper
processing, food processing, but not the operation of
restaurants, retail food outlets or stores, catering businesses
or retail food preparation businesses; manufacture of aircraft or
aircraft parts, manufacture of automobiles or automobile parts,
and all other manufacturing activities, but not timbering or
timber severance or timber hauling, or mineral severance,
hauling, processing or preparation, or coal severance, hauling,
processing or preparation;
(2) Information processing, including, but not limited to,
telemarketing, data processing, systems engineering, back-office
operations and software development;
(3) The activity of warehousing, including, but not limited
to, commercial warehousing and the operation of regional
distribution centers by manufacturers, wholesalers or retailers;
(4) The activity of goods distribution;
(5) Destination oriented recreation and tourism.
(c) In the case of taxpayers which file consolidated,unitary or combined West Virginia tax returns, this credit shall
not be allowed to any such consolidated, unitary or combined tax
return filer unless the particular subsidiary, division,
corporation, partnership or other component thereof which created
the new jobs is engaged in West Virginia in one or more of the
industries or businesses enumerated in this section for which
credit is allowed.
(d) Notwithstanding the fact that a company, entity or
taxpayer is engaged in an industry or business activity
enumerated in subsection (b) of this section, such company,
entity or taxpayer must qualify for the tax credit allowed under
this article by fulfilling the jobs creation and other credit
entitlement requirements of this article. Failure to fulfill the
statutory requirements of this article will result in a partial
or complete loss of the tax credit.
(e) Notwithstanding any other provision of this article or
any other provision of this code to the contrary, the amount of
annual credit which can be taken under this article by any
taxpayer and all members of a taxpayer's controlled group shall
not exceed one hundred thousand dollars in any taxable year.
(f) In no circumstances shall the tax credit allowed under
this article be allowed for jobs attributable to any investment
for which the tax credits under articles thirteen-d, thirteen-e,
thirteen-f, thirteen-g, or thirteen-h of this chapter, or former
article thirteen-c of this chapter have been or are being taken.
§11-13I-9. Certification of credit required.
(a) No credit shall be allowed or applied under this article
for any taxpayer until the person asserting a claim for the
allowance of such credit makes written application to the tax
commissioner for allowance of credit and receives written
certification of the application from the tax commissioner. The
application for credit shall specifically set forth the
taxpayer's designation of the commencement date of the new jobs
creation period, as specified under section five of this article.
The application for credit shall be filed no later than the last
day of the due date, without extensions, for filing the tax
return required under article twenty-four or article twenty-one,
as appropriate, of this chapter for the taxable year in which the
eligible taxpayer has commenced the new jobs creation period
specified in section five of this article, and all information
required by the tax commissioner's prescribed form shall be
provided.
(b) Failure to file. -- The failure to timely apply for the
credit as required in subsection (a) of this section shall result
in forfeiture of the credit otherwise allowable under this
article.
(c) Absolute limitation. -- Total credit certified for all
taxpayers in the aggregate in any one year shall not exceed a
total of ten million dollars.
§11-13I-10. Transition rule.
(a) Notwithstanding the repeal of former article thirteen-c
of this chapter, the Business Investment and Jobs Expansion TaxCredit Act, such repeal shall have limited effect with regard to
investments for which applications for the business investment
and jobs expansion tax credit or applications for project
certification for a business investment and jobs expansion tax
credit project under section four-b of former article thirteen-c
were filed prior to the effective date of this article. If such
investment is otherwise qualified, or in due course becomes
qualified for credit pursuant to the provisions of former article
thirteen-c of this chapter as in effect immediately prior to its
repeal, the taxpayers which would gain entitlement to the
business investment and jobs expansion tax credit pursuant to the
placement of such investment into service or use shall be
entitled to the business investment and jobs expansion tax credit
as if the said repeal had not been enacted, provided that all
terms, conditions and requirements of the former Business
Investment and Jobs Expansion Tax Credit Act are fulfilled and
maintained.
(b) As to taxpayers which have gained entitlement to the
business investment and jobs expansion tax credit prior to the
effective date of this article, notwithstanding the repeal of
former article thirteen-c of this chapter, the Business
Investment and Jobs Expansion Tax Credit Act, such repeal shall
have limited application with respect to such taxpayers, and such
taxpayers shall be entitled to the business investment and jobs
expansion tax credit as if the said repeal had not been enacted,
so long as such taxpayers would have retained such originalentitlement under the terms, conditions and requirements of the
said former article thirteen-c prior to its repeal.
(c) In no case shall entitlement to the business investment
and jobs expansion tax credit pursuant to the transition rules of
this section extend the time over which the business investment
and jobs expansion tax credit would have been available to the
taxpayer under former article thirteen-c of this chapter, as in
force immediately prior to its repeal.
(d) In no case shall entitlement to the business investment
and jobs expansion tax credit pursuant to the transition rules of
this section increase, augment or enlarge the amount of the
business investment and jobs expansion tax credit which would
have been available to the taxpayer under former article
thirteen-c of this chapter, as in force immediately prior to its
repeal, nor shall such entitlement increase, augment, or enlarge
the amount of tax nor the type of tax nor the number of taxes
against which the business investment and jobs expansion tax
credit would have been available under former article thirteen-c
of this chapter, as in force immediately prior to its repeal.
§11-13I-11. Transfer of credit to successors.
(a) The amount of credit that remains available to an
eligible taxpayer at the time of a transfer, merger, acquisition
or asset purchase, where substantially all new jobs and all
operations of the original eligible taxpayer are transferred to
a successor which carries on with those operations, and maintains
at least twenty new jobs in place shall be transferred to thesuccessor in business from the original predecessor eligible
taxpayer on the date of transfer, merger, acquisition or asset
purchase.
(b) The amount of time remaining at the time of transfer,
merger, acquisition or asset purchase over which the predecessor
eligible taxpayer could have applied its remaining credit shall
be the time over which the successor may apply the credit
acquired. In no case shall transferred credit be applied over a
period extending longer than the remaining time period applicable
to the original eligible taxpayer, and in no case shall the
amount of credit transferred to a successor in any way exceed the
amount of credit remaining and available to a predecessor at the
time of transfer.
§11-13I-12. Statement of legislative finding and intent
regarding disclosure of the identity of persons seeking
credit and the amount of credit sought.
(1) The Legislature finds that the people of West Virginia
mutually bear the costs of government as taxpayers, and the
expenditure or public resources through tax incentives and
credits of the type allowed pursuant to this article are granted
at a cost to the taxpayers of this state. Although the measured
and careful granting of tax credits pursuant to narrowly drawn
and specific criteria has been found to be in the public interest
for the promotion of economic development, the Legislature
recognizes that the people of West Virginia jointly bear the
appurtenant tax burden of revenues thus forgone, and furtherrecognizes the right and interest of the people to know the
extent and nature of the costs so borne, and the extent and
nature of the ensuing benefits. Therefore, notwithstanding the
provisions of sections five-d or five-q, article ten, or section
four-a, article one of this chapter, or any other provision of
this code to the contrary, any taxpayer which asserts credit
allowed under this article on a tax return shall be subject to
the tax credit disclosure provisions set forth in section five-s,
article ten of this chapter as if the provisions thereof were set
forth in extenso herein. Notwithstanding any provision of this
code to the contrary, the tax commissioner shall publish in the
state register the name and address of every taxpayer which
asserts a tax credit on a tax return under this article, and the
amount, by category, of any credit asserted on a tax return under
this article. The categories by dollar amount of credit are
those set forth in the aforesaid section five-s, article ten of
this chapter.
§11-13I-13. Identification of new jobs created.
Every eligible taxpayer shall maintain records sufficient to
show the creation and existence of new jobs created.
§11-13I-14. Interpretation and construction, no vesting of
interest in credit, credit claims are made with notice
hereof.
(a) No inference, implication or presumption of legislative
construction or intent shall be drawn or made by reason of the
location or grouping of any particular section, provision, orportion of this article; and no legal effect shall be given to
any descriptive matter or heading relating to any section,
subsection or paragraph of this article.
(b) The provisions of this article shall be strictly
construed, and the person claiming entitlement to the credit
allowed under this article shall bear the burden of proving any
claim of such entitlement.
(c) The provisions of this article shall be subject to
repeal, revision and amendment at the will and pleasure of the
Legislature. Any person claiming this credit, taking this credit
against tax or gaining entitlement to this credit does so subject
to any repeal, revision or amendment of this article which may be
enacted by the Legislature. No entitlement to this credit shall
be interpreted as vested, or as a vested right or as a vested
interest, but such entitlement shall be subject to the continued
existence of the provisions of this article granting such
entitlement. Unless otherwise specified by the Legislature, any
repeal, change, alteration, curtailment, or limitation of the
amount of credit available, the taxes which may be offset by the
credit, the time over which the credit may be taken, or of any
term or provision set forth in this article, including complete
repeal of this article, shall be immediately effective upon all
persons that have claimed this credit, taken this credit against
tax or gained entitlement to this credit prior to the enactment
of any such appeal, change, alteration, curtailment, or
limitation; and such enactment shall likewise be effective uponany persons claiming or taking this credit against tax or gaining
entitlement thereto subsequent to such enactment. All persons
claiming any credit pursuant to this article do so subject to the
provisions of this section, and with notice thereof.
§11-13I-15. Severability.
(a) 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 the 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 circumstance shall not be affected thereby.
(b) If any provision of this article or the application
thereof shall be made invalid or inapplicable by reason of the
failure if the Legislature to enact any statute therein addressed
or referred to, or by reason of the repeal or any other
invalidation of any statute therein addressed or referred to,
such failure to reenact on such repeal or invalidation the
remainder of the statute shall not affect, impair or invalidate
the remainder of the said article, but shall be confined in its
operation to the provision thereof directly involved with,
pertaining to, addressing or referring to the said statute, and
the application of such provision with regard to other statutes
or in other instances not affected by any such invalid or
repealed statute shall not be abrogated or diminished in any way.
NOTE: The purpose of this bill is to establish the jobs
creation tax credit, a tax credit to promote the creation of jobs
in the State of West Virginia. The credit would apply against up
to 80% of the West Virginia business franchise tax liability of
an eligible taxpayer, and against up to 80% of the West Virginia
corporation net income tax or personal income tax attributable to
nonwage income of an eligible taxpayer.
Article 13I is new; therefore, strike-throughs and
underscoring have been omitted.