Senate Bill No. 430
(By Senator Snyder)
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[Introduced February 9, 2000; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact sections three and eight, article
twenty-three, chapter forty-seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said article by adding thereto a new
section, designated section ten-a, all relating to fees
wholesalers and distributors pay on charitable raffle boards
and games sold to retailers; deposit of fees into state
general fund; and civil penalties where retailers possess
charitable raffle boards and games purchased from a wholesaler
or distributor not licensed to sell them.
Be it enacted by the Legislature of West Virginia:
That sections three and eight, article twenty-three, chapter
forty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said
article be further amended by adding thereto a new section,
designated section ten-a, all to read as follows:
ARTICLE 23. CHARITABLE RAFFLE BOARDS AND GAMES.
§47-23-3. Fees.
(a) Wholesalers or distributors of charitable raffle boards
and games to retailers shall be licensed and a license fee in the
amount of five hundred dollars shall be paid to the commissioner by
each wholesaler or distributor for an annual license.
(b) Wholesalers and distributors shall also pay a fee of
twenty cents on each dollar of retail value of each charitable
raffle board or game sold to a retailer: Provided, That this fee
shall be one hundred percent of retail value of each charitable
raffle board or game sold to a retailer on and after the first day
of July, two thousand. This fee shall be in addition to any tax
imposed pursuant to the provisions of article fifteen, chapter
eleven of this code.
(c) The fees imposed by this article shall be deposited in
accordance with the provisions of section two-a, article nine,
chapter eleven of this code: Provided, That eighty percent of the
fee paid on charitable raffle boards and games sold on and after
the first day of July, two thousand, shall be deposited into the general revenue fund of this state.
§47-23-8. How fee paid; reports required; due date; records to be
kept; inspection of records and stocks; examination of
witnesses, summons, etc.
(a) The retail value fee imposed by section three of this
article shall be paid by each licensed wholesaler or distributor to
the commissioner on or before the twentieth day of April, July,
October and January for the preceding three calendar months. The
measure of the fee on the retail value of charitable raffle boards
or games shall be determined by multiplying the total amount of the
retail value of all charitable raffle boards and games sold by a
wholesaler or distributor to retailers during the said three-month
period by twenty percent: Provided, That this fee shall be one
hundred percent of retail value of each charitable raffle board or
game sold to a retailer on and after the first day of July, two
thousand. Said fee shall be in addition to any tax imposed
pursuant to the provisions of article fifteen, chapter eleven of
this code.
(b) All fees due and owing to the commissioner by reason of
this article, if paid after the due dates required by this section,
shall be subject to the provisions of article ten, chapter eleven
of this code.
(c) Each wholesaler or distributor shall provide with each
quarterly payment of fees a return covering the business transacted
in the previous three calendar months and providing such other
information as the commissioner may deem necessary for the
ascertainment or assessment of the fee imposed by this article.
Such return shall be signed under penalty of perjury on such forms
as the tax commissioner may prescribe and the wholesaler or
distributor shall at the time of filing remit all fees owed or due.
(d) The returns prescribed herein are required, although a fee
might not be due or no business transacted for the period covered
by the return.
(e) Each person required to file a return under this article
shall make and keep such records as shall be prescribed by the
commissioner that are necessary to substantiate the returns
required by this article, including, but not limited to, invoices,
serial numbers or other verification, inventories, receipts,
disbursements and sales, for a period of time not less than three
years.
(f) Unless otherwise permitted, in writing, by authority of
the commissioner, each delivery ticket or invoice for each purchase
or sale of charitable raffle boards or games must be recorded upon
a serially numbered invoice showing the name and address of the seller and the purchaser, the point of delivery, the date,
quantity, serial number and price of the product sold and the fee
must be set out separately, and such other reasonable information
as the commissioner may require. These invoicing requirements also
apply to cash sales and a person making such sales must maintain
such records as may be reasonably necessary to substantiate his or
her return.
(g) In addition to the commissioner's powers set forth in
section five, article ten, chapter eleven of this code, the
commissioner shall have authority to inspect or examine the stock
of charitable raffle boards and games kept in and upon the premises
of any person where charitable raffle boards and games are placed,
stored or sold, and he or she shall have authority to inspect or
examine the records, books, papers and any equipment or records of
manufacturers, wholesalers and distributors or any other person for
the purpose of determining the quantity of charitable raffle boards
and games acquired or disbursed to verify the truth and accuracy of
any statement or return and to ascertain whether the fee imposed by
this article has been properly paid.
(h) In addition to the commissioner's powers set forth in
section five, article ten, chapter eleven of this code, and as a
further means of obtaining the records, books and papers of a manufacturer, wholesaler, distributor or any other person and
ascertaining the amount of fees and returns due under this article,
the commissioner shall have the power to examine witnesses under
oath; and if the witness shall fail or refuse at the request of the
commissioner to grant access to the books, records or papers, the
commissioner shall certify the facts and names to the circuit court
of the county having jurisdiction of the party and such court shall
thereupon issue summons to such party to appear before the
commissioner, at a place designated within the jurisdiction of such
court, on a day fixed, to be continued as the occasion may require
for good cause shown and give such evidence and lay open for
inspection such books and papers as may be required for the purpose
of ascertaining the amount of fee and returns due, if any.
§47-23-10a. Civil remedies when retailer possesses charitable
raffle boards and games not purchased from a
wholesaler or distributor licensed under this
article.
(a) A retailer who possesses charitable raffle boards and
games that were not purchased from a wholesaler or distributor
licensed under this article shall be subject to the following civil
remedies:
(1) For a first offense, the retailer shall pay to the commissioner, a civil money penalty of not less than one hundred
nor more than five hundred dollars for each charitable raffle board
or game in the possession of the retailer that was not purchased
from a wholesaler or distributor licensed under this article.
(2) For a second and each subsequent offense, the retailer
shall pay to the commissioner, a civil money penalty of not less
than five hundred nor more than one thousand five hundred dollars
for each charitable raffle board or game in the possession of the
retailer that was not purchased from a wholesaler or distributor
licensed under this article.
(3) For a third offense, the retailer, in addition to paying
the money penalty imposed in subdivision (2), subsection (a) of
this section shall have all licenses issued under article sixteen,
chapter eleven of this code, and article seven, chapter sixty of
this code, for the place of business in which charitable raffle
boards and games not purchased from a wholesaler or distributor
licensed under this article were found suspended for a period of
thirty consecutive days. The alcohol beverage control commissioner
shall suspend the licenses of a retailer upon receipt of the tax
commissioner's certified order issued under this subdivision (3).
(4) For a fourth and each subsequent offense, the retailer,
in addition to applying the money penalty imposed in subdivision (2), subsection (a) of this section shall have the business
registration certificate issued under article twelve, chapter
eleven of this code, and the licenses issued under articles twelve
and sixteen, chapter eleven of this code, and article seven,
chapter sixty of this code, for the place of business in which
charitable raffle boards and games not purchased from a wholesaler
or distributor licensed under this article were found suspended for
a period of thirty consecutive days. The alcohol beverage control
commissioner shall suspend the licenses of a retailer upon receipt
of the tax commissioner's certified order issued under subdivision
(3), subsection (a) of this section. Additionally, any license
issued to the retailer under articles twenty and twenty-one of this
chapter shall be suspended for a period of thirty consecutive days.
(b) Administrative procedures.
(1) An order issued under this section by the tax
commissioner shall be served by certified mail or in the manner
provided in rule 4(d) of the West Virginia rules of civil procedure
for trial courts of record, as amended.
(2) A retailer may appeal an order of the tax commissioner
issued under this section by filing a written protest with the tax
commissioner, either in person or by certified mail, within twenty
days after the licensee is served with a copy of the order.
(3) When a written protest is filed timely, the provisions of
article five, chapter twenty-nine-a of this code shall apply. The
tax commissioner may, by procedural rule, specify the form and
content of a written protest.
(4) The burden of proof in any administrative or court
proceeding is on the licensee to show cause why the order of the
tax commissioner under this section should be modified, in whole or
in part, or set aside.
(c) Deposit of money penalties. -- All money penalties
imposed under this section and collected by the tax commissioner,
shall be deposited into the general revenue fund of this state.
NOTE: The purpose of this bill is to set the fee wholesalers
and distributors pay on charitable raffle boards and games sold to
retailers at 100% of retail value. The bill also creates civil
penalties where retailers possess charitable raffle boards and
games which were purchased from a wholesaler or distributor not
licensed to sell them.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Section ten-a is new; therefore, strike-throughs and
underscoring have been omitted.