Senate Bill No. 463

(By Senators Dalton, Lucht and Withers)

____________

[Introduced February 21, 1994; referred to the Committee
on Finance.]

____________




A BILL to amend and reenact sections nine, nine-b and nine-c, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to eliminating the sales tax on food.

Be it enacted by the Legislature of West Virginia:
That sections nine, nine-b and nine-c, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 15. CONSUMERS SALES TAX.

§11-15-9. Exemptions.

The following sales and services are exempt:
(a) Sales of gas, steam and water delivered to consumers through mains or pipes and sales of electricity;
(b) Sales 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 tothe West Virginia department of education and the arts, board of trustees of the university system of West Virginia or the board of directors for colleges located in this state;
(c) Sales of property or services to the state, its institutions or subdivisions, governmental units, institutions or subdivisions of other states:
Provided, That the law of such other state provides 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;
(d) Sales of vehicles which are titled by the division of motor vehicles and which are subject to the tax imposed by section four, article three, chapter seventeen-a of this code, or like tax;
(e) Sales of property or services to churches and bona fide charitable organizations who make no charge whatsoever for the services they render:
Provided, That the exemption herein granted shall apply only to services, equipment, supplies, food for meals and materials directly used or consumed by these organizations, and shall not apply to purchases of gasoline or special fuel;
(f) Sales of tangible personal property or services to a corporation or organization which has a current registration certificate issued under article twelve of this chapter is exempt from federal income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, and is:
(1) A church or a convention or association of churches as defined in Section 170 of the Internal Revenue Code of 1986, as amended;
(2) 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;
(3) 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;
(4) An organization which has no paid employees and its gross income from fund raisers, less reasonable and necessary expenses incurred to raise such gross income (or the tangible personal property or services purchased with such net income), is donated to an organization which is exempt from income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended;
(5) 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;
(6) For purposes of this subsection:
(A) 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 such 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 such 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;
(B) 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 of1986, as amended;
(C) 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; or
(7) The exemption allowed by this subdivision does not apply to sales of gasoline or special fuel or to sales 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. The provisions of this subsection as amended by this article shall apply to sales made after the thirtieth day of June, one thousand nine hundred eighty-nine:
Provided, That the exemption herein granted shall apply only to services, equipment, supplies and materials used or consumed in the activities for which such organizations qualify as tax exempt organizations under the Internal Revenue Code by these organizations and shall not apply to purchases of gasoline or special fuel;
(g) Sales of property or services to persons engaged in this state in the business of manufacturing, transportation, transmission, communication or in the production of natural resources:
Provided, That on and after the first day of July, one thousand nine hundred eighty-seven, the exemption provided in this subsection shall apply only to services, machinery, supplies and materials directly used or consumed in the activities of manufacturing, transportation, transmission, communication or the production of natural resources in the businesses ororganizations named above and shall not apply to purchases of gasoline or special fuel: Provided, however, That on and after the first day of May, one thousand nine hundred ninety-three, the exemption provided in this subsection shall apply only to services, machinery, supplies and materials directly used or consumed in the activities of manufacturing, transportation, transmission, communication, production of natural resources, gas storage, generation or production of selling electric power, provision of a public utility service or the operation of a utility service or the operation of a utility business, in the businesses or organizations named above and shall not apply to purchases of gasoline or special fuel;
(h) An isolated transaction in which any taxable service or any tangible personal property is sold, transferred, offered for sale or delivered by the owner thereof or by his representative for the owner's account, such sale, transfer, offer for sale or delivery not being made in the ordinary course of repeated and successive transactions of like character by such owner or on his account by such representative:
Provided, That nothing contained herein 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 herein, regardless where such isolated sale takes place. The tax commissioner may adopt such legislative rule pursuant to chapter twenty-nine-a of this code as he deems necessary for the efficient administration of thisexemption;
(i) Sales of tangible personal property or of any taxable services rendered for use or consumption in connection with the commercial production of an agricultural product the ultimate sale of which will be subject to the tax imposed by this article or which would have been subject to tax under this article:
Provided, That sales of tangible personal property and services to be used or consumed in the construction of or permanent improvement to real property and sales of gasoline and special fuel shall not be exempt: Provided, however, That nails and fencing shall not be considered as improvements to real property;
(j) Sales of tangible personal property to a person for the purpose of resale in the form of tangible personal property:
Provided, That sales of gasoline and special fuel by distributors and importers shall be 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 such person or his agent into any real property, building or structure shall not be exempt under this subsection, except that sales of tangible personal property to a person engaging in the activity of contracting pursuant to a written contract with the United States, this state, or with a political subdivision thereof, or with a public corporation created by the Legislature or by another governmental entity pursuant to an actof the Legislature, for a building or structure, or improvement thereto, or other improvement to real property that is or will be owned and used by the governmental entity for a governmental or proprietary purpose, who incorporates such property in such building, structure or improvement shall, with respect to such tangible personal property, nevertheless be deemed to be the vendor of such property to the governmental entity and any person seeking to qualify for and assert this exception must do so pursuant to such legislative rules and regulations as the tax commissioner may promulgate and upon such forms as the tax commissioner may prescribe. A subcontractor who, pursuant to a written subcontract with a prime contractor who qualifies for this exception, provides equipment, or materials, and labor to such a prime contractor shall be treated in the same manner as the prime contractor is treated with respect to the prime contract under this exception and the legislative rules and regulations promulgated by the tax commissioner: Provided further, That the exemption for government contractors in the preceding proviso shall expire on the first day of October, one thousand nine hundred ninety, subject to the transition rules set forth in section eight-c of this article;
(k) Sales of 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 shall be taxable;
(l) Sales and services, fire fighting or station houseequipment, including construction and automotive, made to any volunteer fire department organized and incorporated under the laws of the state of West Virginia:
Provided, That sales of gasoline and special fuel shall be taxable;
(m) Sales of newspapers when delivered to consumers by route carriers;
(n) Sales of drugs dispensed upon prescription and sales of insulin to consumers for medical purposes;
(o) Sales of radio and television broadcasting time, preprinted advertising circulars and newspaper and outdoor advertising space for the advertisement of goods or services;
(p) Sales and services performed by day-care centers;
(q) 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 subsection (f) of this section on its purchases of tangible personal property or services:
(1) For purposes of this subsection, 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 subsection (f) of this section, from payment of the tax imposed by this article on its purchases, when such fund raisers are of limited duration and are held no more than sixtimes during any twelve-month period and limited duration means no more than eighty-four consecutive hours;
(2) The provisions of this subsection, as amended by this article, shall apply to sales made after the thirtieth day of June, one thousand nine hundred eighty-nine;
(r) 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 shall be taxable;
(s) Sales of mobile homes to be utilized by purchasers as their principal year-round residence and dwelling:
Provided, That these mobile homes shall be subject to tax at the three percent rate;
(t) Sales of lottery tickets and materials 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;
(u) Leases of motor vehicles titled pursuant to the provisions of article three, chapter seventeen-a of this code to lessees for a period of thirty or more consecutive days. This exemption shall apply to leases executed on or after the first day of July, one thousand nine hundred eighty-seven, and topayments under long-term leases executed before such date, for months thereof beginning on or after such date;
(v) Sales of propane to consumers for poultry house heating purposes, with any seller to such consumer who may have prior paid such tax in his price, to not pass on the same to the consumer, but to make application and receive refund of such tax from the tax commissioner, pursuant to rules and regulations which shall be promulgated by the tax commissioner; and notwithstanding the provisions of section eighteen of this article or any other provisions of such article to the contrary;
(w) Any sales of tangible personal property or services purchased after the thirtieth day of September, one thousand nine hundred eighty-seven, and lawfully paid for with food stamps pursuant to the federal food stamp program codified in 7 United States Code, §2011, et seq., as amended, or with drafts issued through the West Virginia special supplemental food program for women, infants and children codified in 42 United States Code, §1786;
(x) Sales of tickets for activities sponsored by elementary and secondary schools located within this state;
(y) Sales of electronic data processing services and related software:
Provided, That for the purposes of this subsection "electronic data processing services" means: (1) The processing of another's data, including all processes incident to processing of data such as keypunching, keystroke verification, rearranging or sorting of previously documented data for the purpose of dataentry or automatic processing and changing the medium on which data is sorted, whether these processes are done by the same person or several persons; and (2) providing access to computer equipment for the purpose of processing data or examining or acquiring data stored in or accessible to such computer equipment;
(z) Tuition charged for attending educational summer camps;
(aa) Sales of building materials or building supplies or other property to an organization qualified under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, which are to be installed in, affixed to or incorporated by such organization or its agent into real property, or into a building or structure which is or will be used as permanent low- income housing, transitional housing, emergency homeless shelter, domestic violence shelter or emergency children and youth shelter if such shelter is owned, managed, developed or operated by an organization qualified under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended;
(bb) Dispensing of services performed by one corporation for another corporation when both corporations are members of the same controlled group. Control means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of a corporation entitled to vote or ownership, directly or indirectly, of stock possessing fifty percent or more of the value of the corporation;
(cc) Food for the following shall be exempt Sales of food;
(1) Food purchased or sold by public or private schools, school sponsored student organizations or school sponsored parent-teacher associations to students enrolled in such school or to employees of such school during normal school hours; but not those sales of food made to the general public;
(2) Food purchased or sold by a public or private college or university or by a student organization officially recognized by such college or university to students enrolled at such college or university when such 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;
(3) Food 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;
(4) 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 so obtained is actually expended for that purpose;
(5) Food sold by any religious organization at a social or other gathering conducted by it or under its auspices, if thepurpose 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 such functions and activities: Provided, That purchases made by such organizations shall not be exempt as a purchase for resale;
(dd) Sales of food by little leagues, midget football leagues, youth football or soccer leagues and similar types of organizations, including scouting groups and church youth groups, if the purpose in selling the food is to obtain revenue for the functions and activities of the organization and the revenues obtained from selling the food is actually used in supporting or carrying on functions and activities of the groups: Provided, That such purchases made by such organizations shall not be exempt as a purchase for resale;
(ee) (dd) Charges for room rooms and meals related services by fraternities and sororities to their members; Provided, That such purchases made by a fraternity or sorority shall not be exempt as a purchase for resale;
(ff) (ee) Sales of or charges for the transportation of passengers in interstate commerce;
(gg) (ff) Sales 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;
(hh) (gg) Sales of tangible personal property or services to any person who claims exemption from the tax imposed by thisarticle or article fifteen-a of this chapter pursuant to the provisions of any other chapter of this code;
(ii) (hh) Charges for the services of opening and closing a burial lot;
(jj) (ii) Sales of livestock, poultry or other farm products in their original state by the producer thereof or a member of the producer's immediate family who is not otherwise engaged in making retail sales of tangible personal property; and sales of livestock sold at public sales sponsored by breeders or registry associations or livestock auction markets:
Provided, That the exemptions allowed by this subsection shall apply to sales made on or after the first day of July, one thousand nine hundred ninety, and may be claimed without presenting or obtaining exemption certificates: Provided, however, That the farmer shall maintain adequate records;
(kk) (jj) Sales of motion picture films to motion picture exhibitors for exhibition if the sale of tickets or the charge for admission to the exhibition of the film is subject to the tax imposed by this article and sales of coin-operated video arcade machines or video arcade games to a person engaged in the business of providing such machines to the public for a charge upon which the tax imposed by this article is remitted to the tax commissioner:
Provided, That the exemption provided in this subsection shall apply to sales made on or after the first day of July, one thousand nine hundred ninety, and may be claimed by presenting to the seller a properly executed exemptioncertificate;
(ll) (kk) Sales of aircraft repair, remodeling and maintenance services when such services are to an aircraft operated by a certified or licensed carrier of persons or property, or by a governmental entity, or to an engine or other component part of an aircraft operated by a certificated or licensed carrier of persons or property, or by a governmental entity and sales of tangible personal property that is permanently affixed or permanently attached as a component part of an aircraft owned or operated by a certificated or licensed carrier of persons or property, or by a governmental entity, as part of the repair, remodeling or maintenance service and sales of machinery, tools or equipment, directly used or consumed exclusively in the repair, remodeling or maintenance of aircraft, aircraft engines or aircraft component parts, for a certificated or licensed carrier of persons or property, or for a governmental entity;
(mm) (ll) Sales of tangible personal property and services to a person entitled to claim the tax credit for investment in certain management information services facilities allowed under section three-c, article thirteen-d of this chapter, pursuant to the issuance of a management information services tax credit certification by the tax commissioner in accordance with subsection (e) of said section, when such property or services are directly used or consumed by the purchaser in the operation of the management information services facility, as defined insection two of this article for which credit is allowed under section three-c, article thirteen-d of this chapter. Tangible personal property, or services, directly used or consumed in the operation of a management information services facility includes only: (1) Computer processing and telecommunications equipment; (2) data storage and input/output devices; (3) disaster recovery services; (4) supplies; (5) application, telecommunication and operating system software; (6) repair and maintenance of any of the aforesaid items; and (7) other tangible personal property or services directly used or consumed in the operation of a management information services facility:
Provided, That the property is purchased or leased after the thirty-first day of March, one thousand nine hundred ninety-one. This exemption shall not apply to tangible personal property, or services, that are not directly used or consumed in the operation of a management information services facility, or to gasoline or special fuel: Provided, however, That nothing in this paragraph shall be construed to limit, exclude or preclude the application or availability of any other exemption set forth in this section, or elsewhere in this code, which might otherwise apply to any sale of tangible personal property or services;
(nn) (mm) Charges for memberships or services provided by health and fitness organizations relating to personalized fitness programs;
(oo) (nn) Sales of services by individuals who baby-sit for a profit:
Provided, That the gross receipts of the individualfrom the performance of baby-sitting services does do not exceed five thousand dollars in a taxable year; and
(pp) (oo) A corporation or organization which is a not-for- profit entity which charges membership dues utilized for and contributing significantly to traffic and pedestrian safety and education programs whether or not the corporation or organization is exempt from income tax under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
§11-15-9b. Method for claiming exemptions, refunds of tax, credit against other taxes.

(a) Any person having a right or claim to any exemption set forth in section nine of this article except those exemptions set forth in subsections (a), (b), (c), (d), (f), (h), (i), (j), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v), (w), (x), (y), (z), (aa), (bb), (cc), (dd), (ee), (ff), (gg), (hh), and (ii), (jj), (mm) and (nn) of said section nine, or the exemption of sales of property or services to churches under subsection (e) of said section nine, shall pay to the vendor the tax imposed by this article and may exercise or assert such exemption only in accordance with subsection (b) or subsection (c) of this section.
(b) Any person who has paid the tax imposed by this article and who may lawfully claim exemption from the tax under a subsection of section nine of this article not enumerated in subsection (a) of this section may exercise or assert such claim by filing a claim for refund of consumers sales and service tax overpayments on such form and in such manner as the taxcommissioner may require and in accordance with the requirements of this section. The tax commissioner shall cause a refund to be made within thirty days of receipt of a lawful and accurate claim.
(c) In lieu of filing a claim for refund of consumers sales and service tax overpayments, the taxpayer may, at his option, file a claim for credit on such form and in such manner as the tax commissioner may require and credit the amount of consumers sales and service tax overpayments against certain payments of tax due in accordance with the requirements of this section as follows:
(1) If the taxpayer is required to remit the tax imposed under this article or article fifteen-a of this chapter pursuant to section five or subsection (b) of section nine-d of this article or subsection (b) of section three-d of said article fifteen-a, the taxpayer may credit the amount of consumers sales and service tax overpayments against the remittance of the tax imposed under said articles otherwise due; or
(2) If the taxpayer is subject to the tax imposed under article thirteen of this chapter, the taxpayer may credit the amount of consumers sales and service tax overpayments remaining after application of part (1) of this subsection against the taxpayer's quarterly or monthly remittance of the tax imposed under said article thirteen otherwise due; or
(3) If the taxpayer is subject to the tax imposed under article twelve-a of this chapter, the taxpayer may credit theamount of consumers sales and service tax overpayments remaining after application of parts (1) and (2) of this subsection against the taxpayer's annual or semiannual remittance of the tax imposed under said article twelve-a otherwise due; or
(4) If the taxpayer is subject to the tax imposed under article thirteen-a of this chapter, the taxpayer may credit the amount of consumers sales and service tax overpayments remaining after application of parts (1), (2) and (3) of this subsection against the taxpayer's quarterly or monthly remittance of the tax imposed under said article thirteen-a otherwise due; or
(5) If the taxpayer is subject to the tax imposed under article thirteen-b of this chapter, the taxpayer may credit the amount of consumers sales and service tax overpayments remaining after application of parts (1), (2), (3) and (4) of this subsection against the taxpayer's quarterly or monthly remittance of the tax imposed under said article thirteen-b otherwise due; or
(6) If the taxpayer is subject to the tax imposed under article twenty-four of this chapter, the taxpayer may credit the amount of consumers sales and service tax overpayments remaining after application of parts (1), (2), (3), (4) and (5) of this subsection against the taxpayer's installment of estimated tax imposed under said article twenty-four and otherwise due under section seventeen, article twenty-four of this chapter; or
(7) If the taxpayer is subject to the tax imposed under article twenty-one of this chapter, the taxpayer may credit theamount of consumers sales and service tax overpayments remaining after application of parts (1), (2), (3), (4), (5) and (6) of this subsection against the taxpayer's installment of estimated tax imposed under said article twenty-one and otherwise due under section fifty-six, article twenty-one of this chapter; or
(8) If the taxpayer is subject to the tax imposed under article twenty-three of this chapter, the taxpayer may credit the amount of consumers sales and service tax overpayments remaining after application of parts (1), (2), (3), (4), (5), (6) and (7) of this subsection against the taxpayer's annual remittance of the tax imposed under said article twenty-three and otherwise due; or
(9) If the taxpayer is required to deduct and withhold tax under article twenty-one of this chapter, the taxpayer may credit the amount of consumers sales and service tax overpayments remaining after application of parts (1), (2), (3), (4), (5), (6), (7) and (8) of this subsection against the taxpayer's monthly remittance of the tax withheld under said article twenty- one and otherwise due.
(d) Any person asserting or exercising a claim of exemption from the tax imposed by this article under subsections (b) or (c) of this section shall file with the tax commissioner an application for exemption in such form as the tax commissioner shall prescribe and such affidavits, invoices, sales slips, records or documents as the tax commissioner may require to prove or verify the taxpayer's right and entitlement to such exemption. The tax commissioner may inspect or examine the records, books, papers, documents, affidavits, sales slips and invoices of a taxpayer or any other person to verify the truth and accuracy of any report or return or to ascertain whether the tax imposed by this article has been paid.
In addition to the powers of the tax commissioner set forth in article ten of this chapter, as a further means of obtaining the records, books, papers, documents, affidavits, sales slips or invoices of a taxpayer or any other person and ascertaining the amount of taxes paid or due under this article or any report, form, document or affidavit required under this article, the commissioner shall have the power to examine witnesses under oath; and if any witness shall fail or refuse at the request of the commissioner to grant access to the books, records, papers, documents, affidavits, sales slips or invoices requested by the commissioner, the commissioner shall certify the facts and the names to the circuit court of the county having jurisdiction over the party and such court shall thereupon issue a subpoena duces tecum to such party to appear before the commissioner, at a place designated within the jurisdiction of such court, on a day fixed.
(e) All claims for refund of consumers sales and service tax overpayments under subsection (b) of this section shall be filed within the time limitation for filing claims for refund set forth at section fourteen, article ten of this chapter. Any claim for such refund or claim of entitlement to such refund made or asserted after the said time limitation shall be null and void,and if the consumers sales and service tax overpayment has not otherwise been credited against tax remittances in accordance with this section, the said claims shall be forfeited.
(f) Any credit of consumers sales and service tax overpayments against taxes under subsection (c) of this section shall be taken within one year after the payment of the said consumers sales and service tax by the consumer to the vendor. Any such credit or claim of entitlement to such credit made or asserted more than one year after the payment of such tax by the consumer to the vendor shall be null and void, and such consumers sales and service tax overpayments shall be forfeited unless refunded under subsection (b) of this section.
(g) Any assignment of the right or entitlement to a refund or credit arising under this section shall be subject to strict proof, and any assignee claiming a right or entitlement to an assigned refund or credit shall submit an affidavit in such form as the tax commissioner shall prescribe signed by the assignor acknowledging the assignment. The assignee shall attest to the assignment and the terms thereof on his signed application filed under subsection (d) of this section for refund or credit, and will be subject to the penalties provided under West Virginia law for perjury for any falsehood set forth therein and will be subject to the penalties set forth in article nine of this chapter for any violation thereof. Except as provided in this subsection (g), no payment of a refund arising under this section shall be made to any person other than the taxpayer making theoriginal overpayment of consumers sales and service tax.
(h) No refund shall be due and no credit shall be allowed under this section unless the taxpayer or assignee shall have filed a claim for refund or a claim for credit, as appropriate, with the tax commissioner in accordance with this section.
(i) Any claim for a refund of consumers sales and service tax overpayments or for a tax credit for consumers sales and service tax overpayments which is not timely filed or not filed in proper form or in accordance with the requirements of this section shall not be construed to constitute a moral obligation of the state of West Virginia for payment. No overpayment of consumers sales and service tax made under this section shall be subject to subsection (d), section seventeen, article ten of this chapter or subdivision (1), subsection (e), section seventeen, article ten of this chapter.
(j) The provisions of this section become effective after the thirtieth day of June, one thousand nine hundred eighty- seven.
§11-15-9c. Delivery of a certificate of exemption in lieu of tax.

Persons having a right or claim to any exemption set forth in subsections (a), (b), (c), (d), (f), (h), (i), (j), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v), (w), (x), (y), (z), (aa), (bb), (cc), (dd), (ee), (ff), (gg), (hh) and (ii), (jj), (mm) and (nn) of section nine of this article shall, in lieu of paying the tax imposed by this article, execute a certificate of exemptionin such form as the tax commissioner may require, and such executed exemption certificate shall be delivered to the vendor in such manner as the tax commissioner may require: Provided, That the tax commissioner may identify exemptions for which exemption certificates are not required and as soon as practical may specify by regulation exemptions for which exemption certificates are not required.



NOTE: The purpose of this bill is to repeal the consumer sales tax on food and to correct minor language inconsistencies.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.