H. B. 4290
(By Delegates Michael and Jenkins)
[Passed March 12, 1998; in effect July 1, 1998.]
AN ACT to amend and reenact sections three, five and twenty,
article twelve, chapter eleven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, all
relating to the business registration tax; changing the
registration period from one to two years and the tax from
fifteen to thirty dollars, beginning on the first day of
July, one thousand nine hundred ninety-nine; permitting a
phase-in transition for renewal registration.
Be it enacted by the Legislature of West Virginia:
That sections three, five and twenty, article twelve,
chapter eleven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-3. Business registration certificate required; tax
levied; exemption from registration; exemption
(a) Registration required. -- No person shall, without a business registration certificate, engage in or prosecute, in
the state of West Virginia, any business activity without first
obtaining a business registration certificate from the tax
commissioner of the state of West Virginia. Additionally,
before beginning business in this state, such person:
(1) If a transient vendor, shall comply with the provisions
of sections twenty through twenty-five of this article.
(2) If a collection agency, shall comply with the provisions
of article sixteen, chapter forty-seven of this code.
(3) If an employment agency, shall comply with the
provisions of article two, chapter twenty-one of this code.
(4) If selling drug paraphernalia, as defined in section
three, article nineteen, chapter forty-seven of this code, shall
comply with the provisions of article nineteen, chapter forty- seven of this code.
Persons engaging in or prosecuting other business activities
in this state may also be subject to other provisions of this
code which they must satisfy before commencing or while engaging
in a business activity in this state.
(b) Tax levied. -- The business registration tax hereby
levied shall be fifteen dollars for each annual business
registration certificate: Provided, That for registration
periods beginning on or after the first day of July, one thousand
nine hundred ninety-nine, the business registration tax shall be
thirty dollars, except as otherwise provided in this article.
(1) A separate business registration certificate is required
for each fixed business location from which property or services are offered for sale or lease to the public as a class, or to a
limited portion of the public; or at which customer accounts may
be opened, closed or serviced.
(2) A separate business registration certificate is not
required for each coin-operated machine. A separate certificate
is required for each location from which making coin-operated
machines available to the public is itself a business activity.
(3) A business that sells tangible personal property or
services from or out of one or more vehicles needs a separate
business registration certificate for each fixed location in this
state from or out of which business is conducted. A copy of its
business registration certificate shall be carried in each
vehicle and publicly displayed while business is conducted from
or out of the vehicle.
(4) A business registration certificate is required by
subsection (a) of this section for every person engaging in
purposeful revenue generating activity in this state. If that
activity is one for which an employment agency license or a
collection agency license or a license to sell drug paraphernalia
is required and no other business activity is conducted by that
person at each business location for which the employment agency
license or collection agency license or license to sell drug
paraphernalia is issued, then only that license is required for
each such activity conducted by the licensee at each business
location. However, if, in addition to the activity for which
each license is issued, some other business activity is
conducted by the licensee at such business location, a separate business registration certificate is required to conduct the .
(c) Exemption from registration. -- Any person engaging in
or prosecuting business activity in this state:
(1) Who is not required by law to collect or withhold a tax
administered under article ten of this chapter; and
(2) Who does not claim exemption from payment of taxes
imposed by articles fifteen and fifteen-a of this chapter, shall
be exempt from both registration and payment of the tax imposed
by this article, if such person had gross income from business
activity of four thousand dollars or less during that person's
tax year for state income tax purposes immediately preceding the
registration period for which a registration certificate is
otherwise required by this article.
(d) Exemptions from payment of tax. -- Any person engaging
in or prosecuting any business activity in this state who is
required by law to collect or withhold any tax administered under
article ten of this chapter; or who claims exemption from payment
of the taxes imposed by articles fifteen and fifteen-a of this
chapter, shall be required to obtain a business registration
certificate, as herein before provided, but shall be exempt from
payment of the tax levied by subsection (b) of this section, if
such person is:
(1) A person who had gross income from business activity of
four thousand dollars or less during that person's tax year for
state income tax purposes immediately preceding the registration
period for which a registration certificate is required under this article.
(2) An organization which qualifies, or would qualify, for
exemption from federal income taxes under section 501 of the
Internal Revenue Code of 1986, as amended.
(3) This state, or a political subdivision thereof, selling
tangible personal property, admissions or services, when those
activities compete with or may compete with the activities of
(4) The United States, or an agency or instrumentality
thereof, which is exempt from taxation by the states.
(5) A person engaged in the business of agriculture and
farming: Provided, That no producer or grower selling products
of the farm, garden or dairy and not included within the
definition of business under subsection (a), section two of this
article shall be required to obtain a business registration
certificate or pay the business registration tax.
(6) A foreign retailer who is not a "retailer engaging in
business in this state" as defined in section one, article
fifteen-a of this chapter, who enters into an agreement with the
tax commissioner to voluntarily collect and remit use tax on
sales to West Virginia customers.
(e) Money penalty. -- Any person required to obtain a
business registration certificate under this section, who is
exempt from payment of the tax, as provided in subsection (d)of
this section, who does not obtain a registration certificate
shall, in lieu of paying the penalty imposed by section nine of
this article, pay a penalty of fifteen dollars for each business location for which a certificate is needed: Provided, That
application for business registration is made and the applicable
money penalty tendered to the tax commissioner within fifteen
days after such person receives written notice from the tax
commissioner that such person is required to obtain a business
§11-12-5. Time for which registration certificate granted;
power of tax commissioner to suspend or cancel
certificate; refusal to renew.
(a) Registration period. -- All business registration
certificates issued under the provisions of section four of this
article shall be for the period of one year beginning the first
day of July and ending the thirtieth day of the following June:
Provided, That beginning on or after the first day of July, one
thousand nine hundred ninety-nine, all business registration
certificates issued under the provisions of section four of this
article shall be issued for two fiscal years of this state,
subject to the following transition rule. If the first year for
which a business was issued a business registration certificate
under this article began on the first day of July of an even- numbered calendar year, then the tax commissioner may issue a
renewal certificate to that business for the period beginning the
first day of July, one thousand nine hundred ninety-nine, and
ending the thirtieth day of June, two thousand, upon receipt of
fifteen dollars for each such one-year certificate. Thereafter,
only certificates covering two fiscal years of this state shall be issued.
(b) Revocation or suspension of certificate. --
(1) The tax commissioner may cancel or suspend a business
registration certificate at any time during a registration period
(A) The registrant filed an application for a business
registration certificate, or an application for renewal thereof,
for the registration period that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a
tax return or to report information required by the tax
commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any
tax, additions to tax, penalties or interest, or any part
thereof, when they became due and payable under this chapter,
determined with regard to any authorized extension of time for
(D) The registrant neglected to pay over to the tax
commissioner on or before its due date, determined with regard to
any authorized extension of time for payment, any tax imposed by
this chapter which the registrant collects from any person and
holds in trust for this state.
(E) The registrant abused the privilege afforded to it by
article fifteen or fifteen-a of this chapter to be exempt from
payment of the taxes imposed by such articles on some or all of
the registrant's purchases for use in business upon issuing to
the vendor a properly executed exemption certificate, by failing
to timely pay use tax on taxable purchase for use in business, or by failing to either pay the tax or give a properly executed
exemption certificate to the vendor.
(2) Before canceling or suspending any such certificate, the
tax commissioner shall give written notice of his or her intent
to suspend or cancel the business registration certificate of the
taxpayer, the reason for the suspension or cancellation, the
effective date of the cancellation or suspension, and the date,
time and place where the taxpayer may appear and show cause why
such business registration certificate should not be canceled or
suspended. This written notice shall be served on the taxpayer
in the same manner as a notice of assessment is served under
article ten of this chapter, not less than twenty days prior to
the date of such show cause informal hearing. The taxpayer may
appeal cancellation or suspension of its business registration
certificate in the same manner as a notice of assessment is
appealed under article ten of this chapter: Provided, That the
filing of a petition for appeal shall not stay the effective date
of the suspension or cancellation. A stay may be granted only
after a hearing is held on a motion to stay filed by the
registrant, upon finding that state revenues will not be
jeopardized by the granting of the stay. The tax commissioner
may, in his
discretion and upon such terms as he
may specify, agree to stay the effective date of the cancellation
or suspension until another date certain.
(c) Refusal to renew. -- The tax commissioner may refuse to
issue or renew a business registration certificate if the
registrant is delinquent in the payment of any tax administered by the tax commissioner under article ten of this chapter or the
corporate license tax imposed by article twelve-c of this
chapter, until the registrant pays in full all such delinquent
taxes including interest and applicable additions to tax and
penalties. In his
discretion and upon such terms as he
may specify, the tax commissioner may enter into an
installment payment agreement with such taxpayer in lieu of the
complete payment. Failure of the taxpayer to fully comply with
the terms of the installment payment agreement shall render the
amount remaining due thereunder immediately due and payable and
the tax commissioner may suspend or cancel the business
registration certificate in the manner hereinbefore provided.
§11-12-20. Registration of transient vendors.
(a) Prior to conducting business or otherwise commencing
operations within this state, a transient vendor shall obtain a
business registration certificate from the tax commissioner and
pay the tax imposed by this article.
(b) Upon receipt of the application for business
registration and the posting of the bond required by section
twenty-one of this article, the tax commissioner shall issue to
the transient vendor a business registration certificate, which
shall be valid for the current registration period, if the
application is complete and the transient vendor is not
delinquent in the payment of any tax imposed by this chapter.
Upon renewal of the registration, the tax commissioner shall
issue a new certificate, valid for the next ensuing registration
period, provided he
is satisfied that the transient vendor has complied with the provisions of this article and is not
delinquent in the payment of any tax imposed by this article.
(c) The transient vendor shall keep the business
registration certificate in his
possession at all times
when conducting business within this state. He
publicly display the certificate whenever conducting business in
this state and shall exhibit the certificate upon the request of
an authorized employee of the tax commissioner or any law- enforcement officer.
(d) The business registration certificate issued by the tax
commissioner shall constitute notice that the transient vendor
named therein has registered with the tax commissioner, and shall
provide notice to the transient vendor that:
(1) Before entering this state to conduct business the
transient vendor must notify the tax commissioner, in writing, of
the location or locations in this state where he
to conduct business, and the date or dates on which he
intends to conduct such business.
(2) Failure to notify, or the giving of false information to
the tax commissioner is grounds for suspension or revocation of
the transient vendor's business registration certificate.
(3) Conducting business in this state without having a valid
business registration certificate after such certificate has been
suspended or revoked, may result in criminal prosecution or the
imposition of fines, or other penalties, or both for violation of
(e) Definitions. -- For purposes of this section:
(1) "Transient vendor" means any person who:
(A) Brings into this state, by automobile, truck or other
means of transportation, or purchases in this state, tangible
personal property the sale or use of which is subject to one or
more taxes administered by the tax commissioner under article ten
of this chapter;
(B) Offers or intends to offer such tangible personal
property for sale to consumers in this state; and
(C) Does not maintain an established office, distribution
house, sales house, warehouse, service enterprise, residence from
which business is conducted, or other place of business within
(2) The term "transient vendor" shall not include any person
(A) Is a commercial traveler or selling agent who sells only
to persons who purchase tangible personal property for purposes
of resale to others;
(B) Only sells goods, wares or merchandise by sample catalog
or brochure for future delivery;
(C) Only sells or offers for sale crafts or other handmade
items that were made by the seller; or
(D) Only sells agricultural and farming products, except
nursery products and foliage plants.