Senate Bill No. 671

(By Senators Anderson, Minear, Bailey, Hunter, McKenzie, Sharpe, Sprouse and Ball)

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[Introduced February 23, 1998; referred to the Committee on Small Business; and then to the Committee on Finance.]
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A BILL to amend chapter eleven of the code of West Virginia, one thousand nine-hundred thirty-one, as amended, by adding thereto a new article, designated article thirteen-n, relating to taxation; setting forth short title; setting forth legislative findings; defining terms; setting forth effective date; specifying eligibility for tax credit; specifying certification of project plans; setting forth maximum project investment limitation; specifying qualified investment for tax credit; specifying amount of credit allowed; setting forth application of credit; specifying unused credit forfeiture; specifying method for assertion of credit; specifying requirements for reporting of credit; setting forth total maximum aggregate tax credit limitation; specifying forfeiture of unused tax credits; specifying redetermination of credit; specifying recapture of credit; specifying treatment for premature disposition of qualified property; specifying treatment for premature cessation of use of qualified property; specifying recapture tax; specifying imposition of recapture tax; setting forth rules for transfer of qualified property to successors; specifying treatment of successor businesses where predecessor is entitled to the credit; specifying treatment of a mere change in the form of doing business; requiring and specifying identification of qualified tourism development property; specifying rules for failure to keep adequate records; specifying credit information to be published as public information; authorizing audits and joint audits of taxpayers claiming the credit and others; requiring program evaluation; setting forth expiration date for the tax credit program; requiring preservation of vested entitlement; specifying general procedure and administration and adoption of the West Virginia tax procedure and administration act; authorizing promulgation of regulations; and setting forth severability clause.

Be it enacted by the Legislature of West Virginia;
That chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended, by adding thereto a new article, designated article thirteen-n, to read as follows:
ARTICLE 13N. SMALL TOURISM BUSINESS DEVELOPMENT ACT.
§11-13N-1. Short title.
This article shall be known and cited as the "Small Tourism Business Development Act."
§11-13N-2. Legislative findings.
The Legislature finds and declares that the general welfare and material well-being of the people of West Virginia will be improved and increased by the development of tourism attractions and amenities in the less developed counties of this state with high unemployment. It is in the best interests of this state to induce the creation, expansion and improvement of tourism attractions and amenities within such counties of this state. Development of tourism attractions and amenities serves the public purposes of relieving unemployment, preserving and creating jobs, and creating tax revenues for the support of essential public services. The Legislature finds and declares that the purposes to be accomplished by this article are proper governmental and public services for which public moneys can be expended.
§11-13N-3. Definitions.
(a) General: When used in this article, or in the administration of this article, terms defined in subsection (b) of this section shall have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition in this article.
(b) Terms defined:
(1) Affiliate. -- The terms "affiliate" or "affiliates" include all concerns which are affiliates of each other when either directly or indirectly:
(A) One concern controls or has the power to control the other; or
(B) A third party or third parties control or have the power to control both. In determining whether concerns are independently owned and operated and whether or not affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.
(2) Bed and breakfast facility. -- Bed and breakfast facility shall mean:
(A) An architecturally interesting or historic structure occupied as a single family dwelling by the owner thereof, and operated by the owner as a lodging facility which can accommodate not more than eight overnight lodgers at any one time. In order to qualify as a bed and breakfast facility under this article, the facility, if located in an area subject to zoning laws, must be located in an area legally zoned for such operation, and must comply with all applicable tax, fire, building and health requirements applicable to the property given its size and use.
(B) Exclusions. -- The term bed and breakfast shall not include:
(i) Any complex, facility or set of facilities consisting of more than one cottage, or more than one building or structure that is used for lodging;
(ii) Any facility having an overnight lodging capacity of more than eight persons at any one time;
(iii) Rental condominiums, time-sharing housing units and similar accommodations shall not qualify as bed and breakfast facilities;
(iv) Any lodging facility having a restaurant incorporated into the property: Provided, That, if breakfast is only served to overnight guests, and breakfast is the only meal served to lodgers on the premises, the facility may qualify as a bed and breakfast facility under this section.
(3) Corporation. -- The term "corporation" means any corporation, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.
(4) Delegate. -- The term "delegate" in the phrase "or his or her delegate," when used in reference to the tax commissioner, means any officer or employee of the tax commission of the department of tax and revenue duly authorized by the tax commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.
(5) Eligible taxpayer. --
(A) The term "eligible taxpayer" means any person subject to the taxes imposed by article twenty-one, twenty-three or twenty-four of this chapter that makes qualified investment pursuant to the terms of a certified project plan in qualified tourism development property.
(B) The term "eligible taxpayer" also includes an affiliated group of taxpayers if such group elects to file a consolidated corporation net income tax return under article twenty-four of this chapter and if one or more affiliates included in such affiliated group would qualify as an eligible taxpayer under paragraph (A) of this subdivision.
(C) The term "eligible taxpayer" does not include this state, any state, territory or district of the United States, the United States or, any agency, governmental subdivision, authority, commission, department, division, office, bureau, branch, board, district or other unit, or instrumentality of federal, state, county or local government or any public corporation, or governmental instrumentality or quasi- governmental instrumentality or entity created by statute or ordinance.
(6) Includes and including. -- The terms "includes" and "including", when used in a definition contained in this article, shall not be deemed to exclude other things otherwise within the meaning of the term defined.
(7) Natural person or individual. -- The term "natural person" and the term "individual" mean a human being. The terms "natural person" and "individual" do not mean, and specifically exclude any corporation, limited liability company, partnership, joint venture, trust, organization, association, agency, governmental subdivision, syndicate, affiliate or affiliation, group, unit or any entity other than a human being.
(8) Partnership and partner. -- The term "partnership" includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust or estate, a corporation or a sole proprietorship. The term "partner" includes a member in such a syndicate, group, pool, joint venture or organization.
(9) Person. -- The term "person" includes any natural person, corporation, limited liability company or partnership.
(10) Qualified tourism development area. -- The term "qualified tourism development area" means any of those counties of this state that have, for the calendar year immediately preceding the calendar year when qualified tourism investment property is to be placed in service or use in the county, a county average annual unemployment rate above the statewide unemployment average, as determined by the West Virginia bureau of employment programs.
(11) Qualified tourism development property. --
(A) The term "qualified tourism development property" means property purchased or leased pursuant to the terms of a certified project plan for the purpose of expanding, improving, enlarging, constructing or creating in a qualified tourism development area:
(i) A site, area or facility which will constitute a tourism attraction, as defined in this section, or part of a tourism attraction; or
(ii) A lodging facility located in this state, which lodging facility primarily serves individuals who participate in, patronize or attend a tour or trip constituting a tourism attraction, or who visit an area, site or facility constituting a tourism attraction, primarily for the purpose of personal entertainment, recreation or amusement. For purposes of this definition, the term "lodging facility" includes hotels, motels, resorts, bed and breakfast facilities and hostels.
For purposes of this section, the terms expanding, improving and enlarging mean:
In the case of a lodging facility: Expansion, improvement or enlargement such as to create additional lodging capacity at least ten percent greater than such capacity, measured at the maximum, of the lodging facility as it existed immediately prior to the expansion, improvement or enlargement;
In the case of an area, site or facility constituting a tourism attraction, expansion, improvement or enlargement such as to create additional daily visitor or daily customer capacity at least ten percent greater than such capacity, measured at the maximum, of the area, site or facility as it existed immediately prior to the expansion, improvement or enlargement: Provided, That, in the case of replacement property, only betterments resulting in expansions of fifty percent or more, as specified in this section will constitute qualified tourism development property.
(B) Excluded property: The term "qualified tourism development property" shall not include:
(i) Property purchased or leased before the first day of January, one thousand nine hundred ninety-nine;
(ii) Property owned or leased by the taxpayer, investment in which will qualify for the business investment and jobs expansion tax credit under article thirteen-c of this chapter, without regard to whether the taxpayer actually takes or applies the business investment and jobs expansion tax credit against tax liabilities. Investment for which the business investment and jobs expansion tax credit is or would be allowed is not eligible for the credit allowed under this article, and no credit shall be allowed or taken under this article for any such investment;
(iii) Property owned or leased by the taxpayer and for which the taxpayer was previously allowed tax credit for industrial expansion, tax credit for industrial revitalization, tax credit for coal-loading facilities, the business investment and jobs expansion tax credit, or the tax credits allowed by this article;
(iv) Property owned or leased by the taxpayer and for which the seller, lessor or other transferor, was previously allowed tax credit for industrial expansion, tax credit for industrial revitalization, tax credit for coal-loading facilities, the business investment and jobs expansion tax credit or the credits allowed by this article. However, successors in business shall be allowed entitlement to this credit to the extent of the predecessor's entitlement in accordance with section twelve of this article;
(v) Repair costs, including materials used in the repair;
(vi) Airplanes;
(vii) Property which is primarily used outside this state, with use being determined based upon the amount of time the property is actually used both within and without this state;
(viii) Property which is acquired incident to the purchase of the stock or capital assets of the seller, unless for good cause shown, the tax commissioner consents to waiving this requirement;
(ix) Natural resources in place;
(x) Property, either leased or purchased, the cost or consideration for which cannot be quantified with any reasonable degree of accuracy at the time such property is placed in service or use: Provided, That when the contract of purchase or lease specifies a minimum purchase price or minimum annual rent, the amount thereof shall be used to determine the qualified investment in such property under section five of this article if the property otherwise qualifies as qualified tourism development property;
(xi) Property purchased for ongoing maintenance and upkeep, repairs, facility maintenance or other maintenance, airplanes, motor vehicles licensed by the division of motor vehicles, inventories, noncapitalized property and property that does not create additional lodging capacity or visitor or customer capacity. For purposes of this section, the term "non- capitalized property" means property, the cost of which is not required to be capitalized for federal income tax purposes under the Internal Revenue Code or the rules, regulations or policies implemented or promulgated by the United States Internal Revenue Service;
(xii) Property owned or leased (as lessee) by this state, any state, territory or district of the United States, the United States or, any agency, governmental subdivision, authority, commission, department, division, office, bureau, branch, board, district or other unit, or instrumentality of federal, state, county or local government or any public corporation, or governmental instrumentality or quasi-governmental instrumentality or entity created by statute or ordinance and located in a state park or elsewhere in this state. However, investment made by a qualified taxpayer in a facility or property located in a state park may constitute qualified tourism development property if investment therein would otherwise qualify for credit under this article;
(xiii) Replacement property, except certain replacement property that will qualify as specified in these regulations. For purposes of this section, the term "replacement property" means property acquired by purchase or lease for the purpose of replacing other property in a facility, the investment in which replacement property would not have been made but for the loss of service, destruction, removal or other loss of the property which the replacement property is intended to replace: Provided, That significant betterments will be recognized as qualified tourism development property. The term "betterment" means and is limited to:
(aa) Replacement property which enlarges the lodging capacity of a lodging facility in which the replacement property is installed or placed by at least fifty percent; and to
(bb) Replacement property which enlarges the daily visitor or customer capacity of an area, site or facility that constitutes a tourism attraction by at lease fifty percent. A betterment will be treated as significant if it enlarges capacity by at least fifty percent over such capacity, measured at the maximum, of the lodging facility or area, site or facility constituting a tourism attraction at the time the property which the replacement property is intended to replace was in operation. Replacement property which is installed or constructed to replace property that was destroyed by flood, storm or other casualty will constitute qualified tourism development property if such property would otherwise qualify as such under this section if newly constructed, but the measure of the cost of such replacement property for purposes of this article will be reduced by any insurance proceeds or other proceeds received in compensation for the casualty loss;
(xiv) The term "qualified tourism development property," does not mean or include investment (by purchase or lease) in any property acquired from or between related entities. The tax commissioner can waive this prohibition against related entity acquisitions if the property was acquired from a related entity for its fair market value and there is no manipulation of the cost of, or amount of, investment in property for the purpose of gaining entitlement to the credit allowed under this article.
(12) Related person. -- The term "related person" or "person related to" a stated taxpayer means:
(A) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer; or
(B) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or
(C) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or
(D) A member of the same controlled group as the taxpayer.
For purposes of this article, "control", with respect to a corporation 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 such corporation which entitles its owner to vote. "Control", with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of such trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in Section 267(c), other than paragraph (3) of such section, of the United States Internal Revenue Code, as amended.
(13) State fiscal year. -- "State fiscal year" means a twelve-month period beginning on the first day of July and ending on the thirtieth day of June.
(14) Taxpayer. -- The term "taxpayer" means any person subject to the tax imposed by article twenty-one, twenty-three or twenty-four of this chapter (or any one or combination of such articles of this chapter).
(15) Tourism attraction. -- "Tourism attraction" means:
(A) Any of the following facilities, sites or areas occurring or present in this state:
(i)A cultural or historical site certified as such for purposes of this article by the division of culture and history of the department of education and the arts;
(ii) A recreational or entertainment facility;
(iii) An area of scenic beauty or a phenomenon of natural or scientific significance;
(iv) A theme park;
(v) An amusement park;
(vi) An indoor or outdoor theater or amphitheater for the exhibition of plays or live shows, but not theaters exclusively for the exhibition of moving pictures or video presentations.
(vii) Botanical gardens;
(viii) Cultural or educational centers other than primary and secondary schools and institutions of higher education;
(ix) Whitewater rafting trips, tours, areas or facilities or other water float trips, tours, areas or facilities;
(x) West Virginia state parks;
(xi) Rail excursion tours or facilities;
(xii) River boat tours or facilities;
(xiii) Excursions and tours over pathways, roads and trails established pursuant to the West Virginia rails to trails program;
(xv) Water sports facilities;
(xvi) Boating or canoeing trips, tours, areas or facilities;
(xvii) Mountain biking trips, tours, areas and facilities;
(xviii) Cycling trips, tours, areas and facilities;
(ixx) Hunting areas and facilities;
(xx) Snow skiing, snow boarding and snow sport or snow recreation areas and facilities;
(xxi) Fishing areas and facilities;
(xxii) Golf courses;
(xxiii) Hiking trails, areas or facilities;
(xxiv) Bird watching areas or facilities;
(xxv) Camping areas or facilities;
(xxvi) Industrial tourism sites;
(xxvii) Sports arenas and sports centers;
(xxviii) Race tracks for automobile or motorcycle racing.
(B) The term "tourism attraction" shall not mean or include:
(i) Any facility, site or area not wholly occurring in this state or not wholly located in this state;
(ii) Facilities, areas or sites that are primarily devoted to the retail sale of goods, unless the goods are created at the site of the tourism attraction or unless the sale of the goods is incidental to the tourism attraction;
(iii) Facilities, tours, trips, areas or sites that are not open to the public;
(iv) Facilities, sites or areas established wholly, or in part, for the purpose of conducting legalized or illegal gambling, or facilities, sites or areas where gambling occurs. For purposes of this definition the term "gambling" shall not include charitable bingo gaming sponsored and operated by an organization licensed by this state to hold charitable bingo occasions. For purposes of this definition the term "gambling" shall not include charitable raffle gaming sponsored and operated by an organization licensed by this state to hold charitable raffle occasions.
§11-13N-4. Eligibility for tax credits; certification of project plans by the division of tourism.
(a) A taxpayer which seeks to have a project certified pursuant to this article shall submit to the commissioner of the division of tourism an application for certification of a project plan, in such form as the commissioner of the division of tourism shall prescribe, setting forth the project to be implemented, the amount of projected qualified investment to be made, the nature and location of the proposed project, the amount of total tax credits to be created by the proposed project under this article, an estimate of the number of new jobs to be created by the project and the schedule for implementing the project. Certification shall be issued for proposed projects in chronological order: Provided, That no certification shall be issued for any proposed project that is not in conformance with the requirements of this article.
(b) Within sixty days after receipt by the commissioner of the division of tourism of a completed application for certification of a project under this article, the commissioner of the division of tourism shall certify, or deny certification of, the proposed project for which such application has been filed: Provided, That applications for which the commissioner of the division of tourism requires additional information shall not constitute completed applications until such information has been received by the commissioner of the division of tourism. Those applications not approved by the commissioner of the division of tourism within sixty days after receipt of a completed application for certification by the division of tourism shall be deemed disapproved by operation of law.
(c) The division of tourism shall promptly notify an applicant as to whether an application for certification of a project plan has been approved or disapproved.
(d) Those prospective applicants which receive certification of a project plan, and which otherwise comply with the requirements of this article, may place qualified tourism development property into service or use and begin taking the credit allowed under this article upon receipt of certification.
Eligible taxpayers which make qualified investment in qualified tourism development property shall receive a tax credit as provided in section six of this article. No tax credit may be granted under this article for any investment except qualified investment in qualified tourism development property, as defined in this article, placed in service in a project which has been certified in accordance with the requirements of this article prior to the placement of the qualified investment into service or use. No tax credit may be granted under this article for any investment which, if allowed, would cause the amount of tax credit generated by the project to exceed the maximum amount of tax credit for which the project was certified as stated in the application for project certification filed with the division of tourism.
No project shall be certified, in whole or in part, for which the amount of the investment exceeds four million dollars.
(e) All applications for certification of a project filed with the division of tourism, whether such project is certified or denied certification, are public information which may be viewed and copied by the public and, at the discretion of the division of tourism, published by the division of tourism.
§11-13N-5. Qualified investment.
(a) General. -- Qualified investment in qualified tourism development property is the applicable percentage of the cost of property purchased or leased and constituting qualified tourism development property as defined in this article which is placed in service or use in this state by the taxpayer during the taxable year.
(b) Applicable percentage. -- For the purpose of subsection (a) of this section, the applicable percentage of any property shall be determined under the following table:
If useful life is: The applicable
percentage is:
4 years or more but less than 6 years ....................33-%
6 years or more but less than 8 years ....................66|%
8 years or more ..........................................100%
The useful life of any property, for purposes of this section, shall be determined as of the date such property is first placed in service or use in this state by the taxpayer, determined in accordance with federal income tax law.
(c) Cost. -- For purposes of subsection (a) of this section, the cost of each property purchased for business expansion shall be determined under the following rules:
(1) Trade-ins. -- Cost shall not include the value of property given in trade or exchange for the property purchased for business expansion.
(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property shall not include any insurance proceeds received in compensation for the loss.
(3) Rental property. --
(A) The cost of real property acquired by written lease for a primary term of ten years or longer shall be one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years. Real property leased for a primary term of less than ten years shall not constitute qualified tourism development property.
(B) The cost of tangible personal property acquired by written lease for a primary term of:
(i) Four years, or longer, shall be one third of the rent reserved for the primary term of the lease;
(ii) Six years, or longer, shall be two thirds of the rent reserved for the primary term of the lease; or
(iii) Eight years, or longer, shall be one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years: Provided, That in no event shall rent reserved include rent for any year subsequent to expiration of the book life of the equipment, determined using the straight-line method of depreciation.
(4) Self-constructed property. -- In the case of self-constructed property, the cost thereof shall be the amount properly charged to the capital account for depreciation in accordance with federal income tax law.
(5) Transferred property. -- The cost of property used by the taxpayer out-of-state and then brought into this state, shall be determined based on the remaining useful life of the property at the time it is placed in service or use in this state, and the cost shall be the original cost of the property to the taxpayer less straight line depreciation allowable for the tax years or portions thereof taxpayer used the property outside this state. In the case of leased tangible personal property, cost shall be based on the period remaining in the primary term of the lease after the property is brought into this state for use in a new or expanded business facility of the taxpayer, and shall be the rent reserved for the remaining period of the primary term of the lease, not to exceed twenty years, or the remaining useful life of the property (determined as aforesaid), whichever is less.
§11-13N-6. Amount of credit allowed.
(a) Credit allowed. --
Eligible taxpayers shall be allowed a credit, the application of which and the amount of which shall be determined as provided in this article.
(b) Amount of credit. -- The amount of credit allowable is twenty-five percent of the amount of the taxpayer's qualified investment, as defined in this article: Provided, That in the case of qualified investment in a bed and breakfast facility, as defined in this article, the amount of credit allowable is fifty percent of the amount of the taxpayer's qualified investment, as defined in this article.
(c) Application of credit over either five years or ten years at the election of the taxpayer, limitations. --
At the election of the taxpayer, the amount of credit allowable under this article must be taken over either a five- year period or over a ten-year period. The election to take the credit over a ten-year period or a five-year period shall be made in the application for certification of the project filed with the commissioner of the division of tourism under this article. Such election shall be irrevocable for the life of the credit. The amount of credit allowed under this article shall be taken as follows:
(1) If over a ten-year period, at the rate of one tenth of the amount thereof per tax year, beginning with the tax year in which the taxpayer places the qualified tourism development property into service or use. A tax credit shall be allowable under this article only for the tax year of the eligible taxpayer in which the qualified tourism development property is placed in service or use, and for the next succeeding nine tax years.
(2) If over a five-year period, at the rate of one fifth of the amount thereof per tax year, beginning with the tax year in which the taxpayer places the qualified tourism development property into service or use. A tax credit shall be allowable under this article only for the tax year of the eligible taxpayer in which the qualified tourism development property is placed in service or use, and for the next succeeding five tax years.
(d) Placed in service or use. -- For purposes of the credit allowed by this article, property shall be considered placed in service or use in the earlier of the following taxable years:
(1) The taxable year in which, under the taxpayer's depreciation practice, the period for depreciation with respect to such property begins; or
(2) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.
§11-13N-7. Application of annual credit allowance.
(a) In general. -- The aggregate annual credit allowance for a current tax year is an amount equal to the sum of the following:
(1) If taken over a ten-year period:
(A) The one-tenth part allowed under section six of this article for qualified tourism development property placed into service or use during a prior tax year; plus
(B) The one-tenth part allowed under section six of this article for qualified tourism development property placed into service or use during the current tax year.
(2) If taken over a five-year period:
(A) The one-fifth part allowed under section six of this article for qualified tourism development property placed into service or use during a prior tax year; plus
(B) The one-fifth part allowed under section six of this article for qualified tourism development property placed into service or use during the current tax year.
(b) Application of current year annual credit allowance. -- The amount determined under subsection (a) of this section shall be allowed as a credit for tax years beginning on or after the first day of January, one thousand nine hundred ninety-nine, as follows:
(1) Out of the consumers sales and service tax imposed by article fifteen of this chapter and collected by the eligible taxpayer from its patrons and vendees for the tax year, which amount would otherwise be remitted periodically by the eligible taxpayer to the tax commissioner, the eligible taxpayer shall withhold the lesser of:
(A) The annual credit determined under subsection (a) of this section remaining after application of paragraphs (1), (2) and (3) of this subsection; or
(B) Up to eighty percent of the amount of the consumers sales and service tax imposed by article fifteen of this chapter and so collected by the eligible taxpayer from its patrons and vendees for the tax year, which amount would otherwise be remitted in total by the eligible taxpayer to the tax commissioner;
(C) The amount so withheld by the eligible taxpayer out of each monthly or quarterly periodic remittance shall not exceed eighty percent of the total periodic remittance which would otherwise be forwarded to the tax commissioner;
(D) Amounts of consumers sales and service tax withheld by the eligible taxpayer in accordance with this subsection shall become the property of the eligible taxpayer in satisfaction of the credit allowed under this article.
(c) The credit allowed under this article shall not apply against any other tax remittance or against any tax other than as specified in this section.
(d) Unused credit forfeited. -- If any annual credit allowable for the taxable year, as determined under subsection (a) of this section, remains after application of subsection (b) of this section, the amount thereof shall be forfeited. No carryover to a subsequent taxable year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance.
§11-13N-8. Assertion of the tax credit; reporting.
(a) Any eligible taxpayer that claims a tax credit as provided in this article shall file with the periodic remittance to the tax commissioner of the consumers sales and service tax collected, a statement, in such form as the tax commissioner may prescribe, of the amount of the consumers sales and service tax withheld by the eligible taxpayer out of the periodic remittance, along with such other information as the tax commissioner shall require.
(b) Any eligible taxpayer that claims a tax credit as provided in this article shall file with the West Virginia tax commissioner, in such form as the tax commissioner may prescribe, an annual tax credit reporting schedule stating the amount of the qualified tourism development property which the taxpayer has placed into service or use. The eligible taxpayer shall file with the tax credit reporting schedule a certificate, issued by the commissioner of the division of tourism, evidencing certification of the project plan by the commissioner of the division of tourism, pursuant to which the qualified tourism development property was placed into service or use.
(c) In the tax credit reporting schedule required under this section, the taxpayer shall provide all information required by the tax commissioner's prescribed form.
(d) The tax credit reporting schedule shall be filed with the annual return for the taxes imposed by article twenty-four of this chapter for the tax year in which the qualified investment was first placed into service or use pursuant to a certified project plan: Provided, That if the eligible taxpayer is not required to file a tax return under article twenty-four of this chapter, then such tax credit reporting schedule shall be filed with the annual return for the taxes imposed by article twenty-three of this chapter for such year: Provided, however, That if the eligible taxpayer is not required to file a tax return under article twenty-three or twenty-four of this chapter, then such tax credit reporting schedule shall be filed with the annual return for the taxes imposed by article twenty-one of this chapter for such year.
(e) The tax commissioner may disallow any credit claimed under this article for which a properly completed tax credit reporting schedule or other required documentation, statements or proofs are not timely filed.
§11-13N-9. Total maximum aggregate tax credit amount; certification of projects.
(a) The total amount of tax credits allowed under this article may not exceed ten million dollars in any state fiscal year.
(b) Applications for project certification shall be filed with the division of tourism. The division of tourism shall record the date each application is filed. All complete and valid applications shall be considered for approval or disapproval in a timely manner by the division of tourism.
(c) When the total amount of tax credits certified under this article equals the maximum amount of tax credits allowed, as specified in subsection (a) of this section, in any state fiscal year, no further certifications shall be issued in that same fiscal year.
(d) All applications filed in any state fiscal year and not certified during the state fiscal year in which they are filed shall be void by operation of law on the last day of the state fiscal year in which they are filed, and all applicants which elect to seek certification of a project plan shall file anew on and after the first day of the succeeding state fiscal year.
(e) No project or number of projects shall be certified under this article whereby the amount of tax credit available under this article to any person or group of related persons exceeds four million dollars.
§11-13N-10. Forfeiture of unused tax credits; redetermination of credit allowed; credit recapture.
(a) Disposition of property or cessation of use. -- If during any taxable year, property with respect to which a tax credit has been allowed under this article:
(1) Is disposed of prior to the end of its useful life; or
(2) Ceases to be used in an eligible business of the taxpayer in this state prior to the end of its useful life, then the unused portion of the credit allowed for such property shall be forfeited for the taxable year and all ensuing years. Additionally, except when the property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, the taxpayer shall redetermine the amount of credit allowed in all earlier years by reducing the applicable percentage of cost of such property allowed under section five of this article, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state in the new or expanded business of the taxpayer. Taxpayer shall then file a reconciliation statement with the tax credit reporting schedule filed under section eight of this article, for the year in which the forfeiture occurs. If the amount of credit taken exceeds the amount of credit allowed as redetermined, the taxpayer shall pay the recapture tax as specified in this article.
(b) Cessation of operation of business facility. -- If during any taxable year the taxpayer ceases operation of qualified tourism development property in this state for which credit was allowed under this article, before expiration of the useful life of the property with respect to which tax credit has been allowed under this article, then the unused portion of the allowed credit shall be forfeited for the taxable year and all ensuing years. Additionally, except when the cessation is due to fire, flood, storm or other casualty, the taxpayer shall redetermine the amount of credit allowed in earlier years by reducing the applicable percentage of cost of such property allowed under section five of this article, to correspond with the percentage of cost allowable for the period of time that the qualified tourism development property was actually used in this state in the business of the taxpayer. The taxpayer shall then file a reconciliation statement with the tax credit reporting schedule filed under section eight of this article, for the year in which the forfeiture occurs. If the amount of credit taken exceeds the amount of credit allowed as redetermined, the taxpayer shall pay the recapture tax as specified in this article.
§11-13N-11. Recapture of credit; recapture tax imposed.
(a) When recapture tax applies. --
(1) If it appears upon audit or otherwise that a taxpayer has not placed qualified tourism development property into service or use as represented but has nevertheless taken the credit allowed by this article, the taxpayer shall pay the recapture tax as specified in this section.
(2) Any person who places qualified tourism development property in service or use in this state, and who fails to use such qualified tourism development property for at least the period of its useful life (determined as of the time the property was placed in service or use under section five of this article), or the period of time over which tax credits allowed under this article with respect to such property are applied under this article, whichever period is less; such person shall pay the recapture tax imposed by subsection (b) of this section.
(3) This section shall not apply when section twelve of this article applies. However, the successor, or the successors, and the person, or persons, who previously claimed credit under this article with respect to such qualified tourism development property and the new jobs attributable thereto, shall be jointly and severally liable for payment of any recapture tax subsequently imposed under this section with respect to such qualified tourism development property and new jobs.
(b) Recapture tax imposed. -- The recapture tax imposed by this section shall be the amount determined as follows:
The taxpayer shall recapture an amount of credit equal to the difference between:
(1) The amount of credit claimed under section seven of this article for the taxable year, and all preceding taxable years; and
(2) The amount of credit:
(A) That would have been claimed in such years if the amount of credit allowable under section five of this article had been determined based on the qualified tourism development property which remains in service; plus
(B) An amount equal to the amount of interest that would have been imposed on the difference between the amount that was claimed and the amount that should have been claimed over the period of time outstanding, in accordance with the interest provisions of article ten of this chapter, as if that amount were tax underpaid. In addition, the recapture tax may, at the discretion of the tax commissioner include an amount equal to the statutory penalties that can be imposed under article ten of this chapter should it appear that the taxpayer has engaged in conduct that would have resulted in the imposition of such penalties in accordance with article ten of this chapter.
(c) Payment of recapture tax. -- The recapture tax imposed under this section shall be due and payable on the day such person's annual return is due for the taxable year in which this section applies, under article twenty-one or twenty-four of this chapter. When the employer is a partnership or S corporation, for federal income tax purposes, the recapture tax shall be a joint and several liability of and shall be paid by those persons who are partners in such partnership or shareholders in such S corporation, in the taxable year in which recapture occurs under this section.
(d) Imposition of the recapture tax under this article shall not be interpreted as limiting or abrogating the authority of the tax commissioner to audit and assess tax and to administer and audit the application and entitlement to and calculation of, the credit allowed under this article in accordance with the provisions of article ten of this chapter.
§11-13N-12. Transfer of qualified investment to successors.
(a) Mere change in form of business. -- Qualified tourism development property shall not be treated as disposed of under section ten of this article by reason of a mere change in the form of conducting the business as long as the property is retained in a business in this state, and the eligible taxpayer retains a controlling interest in the successor business. In this event, the successor business shall be allowed to claim the amount of credit still available with respect to the business facility or facilities transferred, and the taxpayer (transferor) shall not be required to redetermine the amount of credit allowed in earlier years.
(b) Transfer or sale to successor. -- Qualified tourism development property shall not be treated as disposed of under section ten by reason of any transfer or sale to a successor business which continues to operate the business facility in this state. Upon transfer or sale, the successor (transferee) shall acquire the amount of credit that remains available under this article for each subsequent taxable year for which the credit would have been available to the transferor, and the transferor shall not be required to redetermine the amount of credit allowed in earlier years.
§11-13N-13. Identification of qualified tourism development property.
Every taxpayer who claims credit under this article shall maintain sufficient records to establish the following facts for each item of qualified tourism development property:
(1) Its identity;
(2) Its actual or reasonably determined cost;
(3) Its straight-line depreciation life;
(4) The month and taxable year in which it was placed in service;
(5) The amount of credit taken; and
(6) The date it was disposed of or otherwise ceased to be qualified property.
§11-13N-14. Failure to keep records of qualified tourism development property.
A taxpayer who does not keep the records required for identification of qualified tourism development property is subject to the following rules:
(1) A taxpayer shall be treated as having disposed of, during the taxable year, any qualified tourism development property which the taxpayer cannot establish was still on hand, in this state, at the end of that taxable year.
(2) If a taxpayer cannot establish when qualified tourism development property reported for purposes of claiming this credit during the taxable year was placed in service, the taxpayer shall be treated as having placed it in service in the most recent prior year in which similar property was placed in service, unless the taxpayer can establish that the property placed in service in the most recent year is still on hand. In that event, the taxpayer will be treated as having placed the returned property in service in the next most recent year.
§11-13N-15. Public information relating to tax credit.
The tax commissioner shall annually publish in the state register the name and address of every taxpayer asserting this credit, and the amount of any credit asserted under this article by each such taxpayer, and the confidentiality provisions of section four-a, article one, or section five-d, article ten of this chapter, or of any other provision of this code, do not apply to such information.
§11-13N-16. Audits and examinations; information sharing.
(a) The tax commissioner may, at his or her discretion, perform joint audits or examinations with the division of tourism or independently audit or examine the books, records and other information, as appropriate, of any taxpayer or of any person, organization or entity which has filed an application for certification of a project plan under this article, or of any taxpayer which has asserted this credit, or of any person, organization or entity believed to have relevant information.
(b) For purposes of joint audits, or any administrative or judicial proceeding or procedure relating to any tax credit taken, asserted or sought under this article, the tax commissioner may share such tax information as the tax commissioner may deem appropriate with the division of tourism, notwithstanding the provisions of section four-a, article one of this chapter or section five-d, article ten of said chapter, or any other provision of this code to the contrary.
§11-13N-17. Program evaluation; expiration of credit; preservation of entitlement.
(a) On or before the thirtieth day of September, two thousand two, the division of tourism shall secure an independent review of the small business tourism development act program as created by this article and present the findings to the Legislature. Such review shall focus upon:
(1) The cost effectiveness of the program;
(2) A calculation of the cost of the program per net job created (net of any jobs lost due to the nonretention of businesses competing with businesses entitled to the credit allowed under this article);
(3) The jobs creation effectiveness of the program;
(4) The value of the program with regard to fostering economic development, particularly showing any increases in out-of-state money flowing into West Virginia through tourism and resulting from the program;
(5) The effect of the program on the retention of businesses that existed in West Virginia prior to the implementation of the program, and the competitive effect of the credit upon those businesses.
(b) Pursuant to this report, and any independent evaluation that the Legislature or the joint committee on government operations may wish to initiate, the joint committee on government operations shall issue a recommendation to the Legislature, not later than the first day of February, two thousand three, as to whether the program should continue.
(c) Except if continued by act of the Legislature, the small business tourism development act shall terminate on the first day of July, two thousand three, unless sooner terminated by law.
(d) Except if continued by act of the Legislature, no entitlement to the tax credit under this article shall result from any investment in qualified tourism development property placed in service or use after the first day of July, two thousand three, and no credit shall be available to any taxpayer for any property placed into service or use after that date. Taxpayers which have gained entitlement to the credit pursuant to qualified investment in qualified tourism development property placed in service or use in certified projects prior to the first day of July, two-thousand three, may retain that entitlement and apply the credit in due course, provided the requirements and limitations of this article are otherwise met.
§11-13N-18. General procedure and administration.
Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter shall apply to the credit allowed by this article with like effect as if said act were applicable only to such credit and were set forth with respect thereto in extenso in this article.
§11-13N-19.
Regulations. -- The tax commissioner shall promulgate such legislative rules as may be necessary to carry out the purpose of this article and to implement the intent of the Legislature. Such rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
§11-13N-20. Severability.
(a) If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby.
(b) If any provision of this article or the application thereof shall be made invalid or inapplicable by reason of the failure of the Legislature to enact any statute therein addressed or referred to, or by reason of the repeal or any other invalidation of any statute therein addressed or referred to, such failure to reenact or such repeal or invalidation of any such statute shall not affect, impair or invalidate the remainder of the said article, but shall be confined in its operation to the provision thereof directly involved with, pertaining to, addressing or referring to the said statute, and the application of such provision with regard to other statutes or in other instances not affected by any such invalid or repealed statute shall not be abrogated or diminished in any way.



NOTE: The purpose of this bill is to create a tax incentive for the creation, construction or enlargement of tourism attractions or amenities. The credit operates to allow the taxpayer to recover up to 25% (in the case of bed and breakfast facilities, 50%) of qualified investment in a tourism attraction or amenity by offsetting up to 80% of consumers sales and service tax collected by the taxpayer over a period of either five or ten years at the election of the taxpayer.

This article is new; therefore, strike-throughs and underscoring have been omitted.