Senate Bill No. 463
(By Senators Dalton, Lucht and Withers)
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[Introduced February 21, 1994; referred to the Committee
on Finance.]
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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.