H. B. 4628


(By Delegate Michael)
[Introduced February 27, 1998; referred to the
Committee on Finance.]




A BILL to amend and reenact section thirty-two, article twenty-one, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to personal income tax; defining West Virginia source income of nonresidential individuals; eliminating exclusion of federal alimony deduction from West Virginia source income for nonresidents; and specifying effective date.

Be it enacted by the Legislature of West Virginia:
That section thirty-two, article twenty-one, 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 21. PERSONAL INCOME TAX.
§11-21-32. West Virginia source income of nonresident individual.
(a) General. -- The West Virginia source income of a nonresident individual shall be is the sum of the net amount of income, gain, loss and deduction entering into his or her federal adjusted gross income, as defined in the laws of the United States and section nine of this article, for the taxable year, derived from or connected with West Virginia sources, including:
(1) His or her distributive share of partnership income, gain, loss and deduction, determined under section thirty-seven of this article; and
(2) His or her pro rata share of S corporation income, loss and deduction, determined under section thirty-seven of this article, increased by reductions for taxes described in paragraphs (2) and (3), subsection (f), section 1366 of the Internal Revenue Code; and
(3) His or her share of estate or trust income, gain, loss and deduction, determined under section thirty-nine of this article.
(b) Income and deductions from West Virginia sources. --
(1) Items of income, gain, loss and deduction derived from or connected with West Virginia sources shall be are those items attributable to:
(A) The ownership of any interest in real or tangible personal property in this state; or
(B) A business, trade, profession or occupation carried on in this state; or
(C) In the case of a shareholder of an S corporation, the ownership of shares issued by such corporation, to the extent determined under section thirty-seven of this article.
(2) Income from intangible personal property, including annuities, dividends, interest, and gains from the disposition of intangible personal property, shall constitute is income derived from West Virginia sources only to the extent that such the income is from property employed in a business, trade, profession or occupation carried on in this state.
(3) Deductions with respect to capital losses and net operating losses shall be based solely on income, gain, loss and deduction derived from or connected with West Virginia sources, under regulations rules of the tax commissioner, but otherwise shall be determined in the same manner as the corresponding federal deductions.
(4) The deduction allowed by section 215 of the Internal Revenue Code, relating to alimony, shall not constitute a deduction derived from West Virginia sources.
(c) Income and deductions partly from West Virginia sources. -- If a business, trade, profession or occupation is carried on partly within and partly without this state, as determined under regulations rules of the tax commissioner, the items of income, gain, loss and deduction derived from or connected with West Virginia sources shall be determined by apportionment and allocation under such regulations the rules.
(d) Purchase and sale for own account. -- A nonresident, other than a dealer holding property for sale to customers in the ordinary course of his or her trade or business, shall not be deemed to carry is not carrying on a business, trade, profession or occupation in this state solely by reason of the purchase and sale of property for his or her own account.
(e) Husband and wife. -- If a husband and wife determine their federal income tax on a joint return but determine their West Virginia income taxes separately, they shall determine their West Virginia source incomes separately as if their federal adjusted gross incomes had been determined separately.
(f) Effective date. -- This section as amended and reenacted in the year one thousand nine hundred ninety-two ninety-eight, shall apply applies to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-one ninety-seven. As to prior taxable years, the provisions of this section and of section thirty-one of this article, as then in effect, are fully and completely preserved.
NOTE: The purpose of this bill is to eliminate an alimony provision which is identical to the New York statute declared unconstitutional by the U.S. Supreme Court on December 21, 1997 in Lunding v. New York Tax Appeals Tribunal, et al, No. 96- 1462, on the ground that denying nonresidents an alimony deduction while permitting a deduction for residents violates the Privileges and Immunity Clause of the United States Constitution.

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