H. B. 2201


(By Mr. Speaker, Mr. Kiss, and Delegate Trump)

[By Request of the Executive]

[Introduced February 15, 2001; referred to the

Committee on Health and Human Resources then Finance.]




A BILL to amend and reenact sections one, two, three, four, five, twelve, nineteen and twenty, article seventeen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article seventeen by adding thereto seven new sections, designated sections thirteen, nineteen-a, nineteen-b, nineteen-c, twenty-a, twenty-b and twenty-three; and to amend and reenact section seven hundred-three, article seven, chapter sixty-a of said code, all relating to imposing, administering, collecting and enforcing excise tax on sale and use of cigarettes and smokeless tobacco products; renaming the cigarette tax act as the tobacco products excise tax act; defining terms; applying existing provisions, procedures, requirements and rules to smokeless tobacco products; requiring use of invoice method for the payment of tax on smokeless tobacco products; imposing excise tax on smokeless tobacco products based on a fixed percentage of the wholesale price; dedicating proceeds of tax to general revenue fund; establishing money penalties; imposing certain criminal penalties; declaring certain nontaxed tobacco products to be contraband; providing for seizure and disposition of contraband property and distribution of proceeds; requiring making of special study on impact of tax on smokeless tobacco products; and providing effective date of tax on smokeless tobacco products.

Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five, twelve, nineteen and twenty, article seventeen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto seven new sections, designated sections thirteen, nineteen-a, nineteen-b, nineteen-c, twenty-b, and twenty-three; and that section seven hundred-three, article seven, chapter sixty-a of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 17. TOBACCO PRODUCTS EXCISE TAX ACT.
§11-17-1. Short title.
This article shall be known, and may be cited, as the "Cigarette Tax Act" "Tobacco Products Excise Tax Act."
§11-17-2. Definitions.
(a) When used in this article, the following words, terms and phrases defined in subsection (b) of this section, and any variations thereof required by the context, shall have the meaning ascribed to them in this article section, except where the context indicates a different meaning is intended.
(b) Definitions. --
(1) "Cigarette" means:
(a) (A) Any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any ingredient, the wrapping or cover of which is made of paper or any substance or material, except tobacco.
(b) (B) Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packing and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in paragraph (a) (A) of this subdivision (1).
(2) "Commissioner" means the state tax commissioner and where the meaning of the context requires, all deputies or agents and employees duly authorized by him or her.
(3) "Consumer" means a person who receives or in any way comes into possession of cigarettes tobacco products for the purpose of consuming or giving them away or disposing of them in any way other than by sale, barter or exchange.
(4) "Counterfeit stamp" means any stamp, label or print, indicium or character, that evidences, or purports to evidence, the payment of any tax levied under this article and that has not been printed, manufactured, or made by authority of the commissioner, as provided in this article, and has not been issued, sold, or circulated by the commissioner.
(5) "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 being defined.
(6) "Manufacturer" means a person who manufactures or produces a tobacco product.
(10) (7) "Package" means the individual package, box or other container in or from which retail sales of cigarettes tobacco products are normally made or intended to be made.
(11) (8) "Person" shall means and includes any individual, firm, association, company, partnership, corporation, joint-stock company, club, agency, syndicate, limited liability company, other legal entity, municipal corporation or other political subdivision of this state, trust, receiver, trustee, fiduciary or conservator, and when used in connection with any penalties imposed by this article, shall mean and include officers, directors, trustees or members of any firm, copartnership, association, corporation, trust or any other unit acting as a group.
(9) "Place of business" means a place where a tobacco product is sold or where a tobacco product is brought or kept for the purpose of sale or consumption, including a vessel, airplane, train, or vending machine.
(12) (10) "Retail dealer" includes every person in this state, other than a wholesaler or subjobber, engaged in the selling of cigarettes tobacco products at retail to a consumer or to any person for any purpose other than resale.
(4) (11) "Sale" means selling, exchange, transfer of title, barter, gift, offer for sale or distribution or disposition of cigarettes or smokeless tobacco products.
(5) (12) "Sale at retail" or "retail sale" means a sale to a consumer or to any person for any purpose other than resale.
(6) (13) "Sale by wholesaler" shall mean means and include includes any bona fide transfer of title to cigarettes tobacco products by a wholesaler for a valuable consideration, made in the ordinary course of trade or in the usual conduct of the wholesaler's business.
(14) "Smokeless tobacco product" means chewing tobacco, snuff and any other tobacco product that is intended by the seller to be used or consumed by a means other than smoking.
(7) (15) "Stamp" or "meter impression" shall mean means any cigarette stamp or any meter or ink impression or other indicia authorized by the tax commissioner to serve as such stamp, and shall be of the design and color as prescribed by the tax commissioner.
(8) (16) "Stamped cigarettes" means that the stamp or meter impression, as required by this article, has been affixed to the bottom of the package of cigarettes.
(9) (17) "Subjobber" or "subjobber dealer" shall includes any person who purchases stamped cigarettes or tax paid smokeless tobacco products from a wholesaler or from any other person who purchases from the manufacturer or importer when such other person is located in any state which levies an excise tax on cigarettes and who purchases such cigarettes the tax paid tobacco products solely for the purpose of bona fide resale to retail dealers.
(18) "Tax not paid tobacco product" means a tobacco product upon which the tax imposed by this article has not been paid.
(19) "Tax paid tobacco products" means a tobacco product upon which the tax imposed by this article has been paid.
(20) "Tobacco product" includes cigarettes and any smokeless tobacco product.
(21) "Transporter" means a person importing or transporting into this state a tobacco product obtained from a source located outside this state, or transporting within this state tobacco products belonging to another person.
(13) (22) "Unstamped cigarettes" means that the stamp or impression as required by this article has not been affixed to the bottom of the package of cigarettes.
(14) (23) "Vending machine operator" is means any person operating one or more cigarette vending machines for the sale of cigarettes or smokeless tobacco products. The sale of cigarette tobacco products through a vending machine will be construed as sales at retail and will subject the vending machine operator to the cigarette tobacco products tax law and rules and regulations pertaining to retail dealers.
Whenever any cigarette tobacco products vending machine operator purchases cigarettes tax not paid tobacco products directly from the manufacturer such or any other person, or the vending machine operator shall be deemed to be a wholesaler and shall be liable for payment of the excise tax imposed by this article and the affixing of the required stamps.
(24) "Wholesale price" means the gross invoice price, including all federal excise taxes, at which the manufacturer of the tobacco product sells the tobacco product to unaffiliated distributors, excluding all trade discounts and other reductions in the manufacturer's price. If the wholesaler buys from a person who is not the manufacturer of the tobacco product, "wholesale price" means the gross invoice price, including all federal excise taxes and excluding all trade discounts and other similar reductions in price.
(15) (25) "Wholesaler" or "wholesale dealer" shall include includes any person in this state who purchases unstamped cigarettes tax not paid tobacco products directly from the manufacturer, the importer or another wholesaler.
§11-17-3. Levy of tax; ratio; dedication of proceeds.
(a) Tax on cigarettes. -- For the purpose of providing revenue for the general revenue fund of the state, an excise tax is hereby levied and imposed on sales of cigarettes at the rate of seventeen cents on each twenty cigarettes or in like ratio on any part thereof. Only one sale of the same article shall be used in computing the amount of tax due hereunder under this subsection (a).
(b) Tax on smokeless tobacco products. -- Effective the first day of July, two thousand one, an excise tax is hereby levied and imposed on the sale or use of smokeless tobacco products at a rate equal to twenty-five percent of the wholesale price of each article or item of smokeless tobacco product sold by the wholesaler or subjobber dealer, whether or not sold at wholesale, or if not sold, then at the same rate upon the use by the wholesaler or dealer. Only one sale of the same article shall be used in computing the amount of tax due under this subsection (b). This tax shall be deposited into the general revenue fund.
§11-17-4. Effect of rate changes; cigarettes on hand or in inventory; report; discount.

(a) Notwithstanding other provisions of this article, it is hereby declared to be the intent of the Legislature that one rate of excise tax shall be applicable to all quantities of cigarettes and another rate of excise tax shall be applicable to all smokeless tobacco products in this state on and after the effective date of any change of rate first day of July, two thousand one, under the provisions of this article. Any cigarettes tobacco products, on hand or in inventory, on the effective date of any rate change are hereby deemed to have been purchased or received on such the effective date of the change in rate.
(b) Every wholesaler, subjobber, subjobber dealer, retail dealer and vending machine operator who, on the effective date of any rate change, has on hand or in inventory any cigarettes tobacco products, upon which the tax or any portion thereof has been previously paid, shall take a physical inventory and shall file a report thereof with the tax commissioner, in the format as required by the tax commissioner, within thirty days thereafter, and shall pay to the tax commissioner, at the time of filing, such report any additional tax due under an increased rate. A discount of four percent will be allowed on all tax due for persons who pay additional tax under this section.
(c) Imposition of the tax on smokeless tobacco products shall be treated as a change in rate on the effective date of the tax.
§11-17-5. How tax paid; stamps; how affixed; violations.
(a) The tax hereby imposed by this article on cigarettes shall be paid by the purchase of stamps as provided in this article.
(b) The tax imposed by this article on smokeless tobacco products shall be paid using an invoice method prescribed by the tax commissioner.
(c) Payment for stamps purchased from the commissioner shall be made by cash, money order, bank draft, certified check or by noncertified check. However, in the event a noncertified check is returned unpaid by its bank, then it shall be considered that payment has not been made for the taxes due.
(d) A stamp, as required by this article, as described in the cigarette tobacco products tax rules, and regulations shall be affixed to, or impressed upon each package of cigarettes of an aggregate value of not less than the amount of tax upon the contents thereof. The stamp or impression, so affixed, shall be prima facie evidence of payment of the tax imposed by this article. Stamps or meter impressions shall be purchased from the commissioner or his or her deputy, by, and paid for, by, wholesalers.
(e) Except as may be otherwise provided in the rules and regulations prescribed by the commissioner, under authority of this article and article ten of this chapter, and unless such stamps have been previously affixed, they shall be so affixed by each wholesale dealer who must be authorized to do business in this state prior to the sale or delivery of any cigarettes to any retail dealer or subjobber in this state.
(f) Except as may be otherwise provided in the rules prescribed by the commissioner, each wholesale dealer of cigarettes and each wholesale dealer of smokeless tobacco products must be authorized to do business in this state prior to the sale or delivery of any cigarettes or smokeless tobacco products to any retail dealer or subjobber in this state. A wholesale dealer may sell tax-paid tobacco products only to another wholesaler, or a retail dealer or subjobber in this state.
(g) Whenever any cigarettes are found in the place of business of any retail dealer or subjobber without the stamps so affixed, the prima facie presumption shall arise that such cigarettes are kept therein in violation of the provisions of this article.
(h) Whenever any smokeless tobacco products are found in the place of business of any retail dealer or subjobber and there is no evidence that the tax imposed by this article has been paid on the smokeless tobacco products, it shall be presumed that the smokeless tobacco products are kept on the premises in violation of this article.
(i) If the tax commissioner if he shall determine determines that it is practicable to stamp packages of cigarettes by impression by means of a metering device, then the commissioner shall provide that such metering device and its impression may be used in lieu of the stamps otherwise required by law. The tax commissioner may authorize any wholesaler purchasing unstamped cigarettes tobacco products, and holding the who holds a valid business registration certificate, or license as required by article twelve, chapter eleven article twelve of this code, to use any metering device approved by the commissioner such devices to be after the device has been sealed by the commissioner or a deputy, or agent, authorized by the commissioner. before being used, which A metering device shall be used only in accordance with the regulations rules prescribed by the commissioner.
(j) A wholesaler may elect to pay the tax in advance where when a metering device is used, in which event such the wholesaler shall deliver the metering device to the commissioner, or his or her agent authorized for that purpose, who shall seal the meter in accordance with the prepayment so made.
§11-17-12. Reports required; due date; records to be kept; inspection of records and stocks; examination of witnesses, summons, etc.

(a) Due date. -- On or before the fifteenth day of each month, manufacturers, importers, common carriers, wholesalers, subjobbers, retail dealers and agents, or vending machine operators, shall, when required by this article, or the tax commissioner, file a report covering the business transacted in the previous month covering providing such information as the commissioner may deem necessary for the ascertainment or assessment of the tax taxes imposed by this article. and Reports shall be signed under penalty of perjury on and be in such forms as the tax commissioner may prescribe. and The amount of tax shown to be due on the monthly report, if any, shall at this time remit any taxes owed or due, if any be remitted by the due date of the monthly report, determined without regard to any authorized extension of time for filing the report.
(b) Reports required. -- The reports prescribed herein are required, although a tax might not be due, or no business transacted, for the period covered by the report.
(c) Records. -- Each person required to file a report under this article shall make and keep such records as shall be prescribed by the tax commissioner that are necessary to substantiate the returns accuracy of the reports required by this article, including, but not limited to, records of inventories, receipts, disbursements and sales. Records shall be retained for a period of time not less than three years, unless the tax commission, in writing, consents to their earlier destruction.
(d) Contents of delivery ticket or invoice. -- Unless otherwise permitted, in writing, by authority of the tax commissioner, each delivery ticket or invoice for each purchase or sale of cigarettes tobacco products must be recorded upon a serially numbered invoice showing (1) the name and address of the seller and the purchasers purchaser, (2) the point of delivery, (3) the date, quantity, price of the each tobacco product delivered in this state, and the (4) the amount of tax imposed by this article, which must be set out separately or the invoice must indicate whether or not the West Virginia cigarette tobacco products excise tax is included in the total price, and (5) such other reasonable information as the tax commissioner may require. However, these invoicing requirements do not apply to cash sales, and a provided the person making such cash sales must maintain such records as may be reasonably necessary to substantiate the accuracy of his or her return monthly report.
(e) Inspection of tobacco products inventory. -- In addition to the tax commissioner's powers set forth in section five, article ten of this chapter, the tax commissioner, or his a deputy or agent authorized by him the commissioner, shall have authority to inspect or examine the stock of cigarettes tobacco products kept in and upon the premises of any person where cigarettes tobacco products are placed, stored or sold and shall inspect or examine the records, books, papers, and any equipment or records of manufacturers, importers, cigarette stamping agents, wholesalers, subjobbers, retail dealers, common carriers, or any other person for the purpose of determining the quantity and value of cigarettes tobacco products acquired or disbursed to verify the truth and accuracy of any statement or report and to ascertain whether the tax imposed by this article has been properly paid.
(f) Examination of witnesses and records. -- In addition to the tax commissioner's powers set forth in section five, article ten of this chapter, and as a further means of obtaining the records, books and papers of a manufacturer, importer, common carrier, wholesaler, subjobber or retailer or any other person and ascertaining the amount of taxes and reports due under this article, the commissioner and his any duly appointed agent shall have the power to examine witnesses under oath; and if the witness shall fail or refuse at the request of the tax commissioner or his any duly appointed agent to grant access to the books, records or papers, the tax commissioner or such agent 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 tax commissioner or his any duly appointed agent, 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 tax and reports due, if any.
§11-17-13. Preservation of rules.
All rules for the cigarette tax act previously promulgated by the commissioner, as provided in this article, article ten of this chapter, and as provided in article three, chapter twenty-nine-a of this code, shall remain in effect until they are amended or repealed by the commissioner or superceded by operation of law.
§11-17-19. Penalty for failure to file report when no tax due.

(a) Penalty for failure to file required return where no tax due.-- In the case of any failure to make or file a return report when no tax is due, as required by this article on the date prescribed therefor, unless it be shown that such failure was due to reasonable cause and not due to willful neglect, there shall be collected a penalty of twenty-five dollars for each month of such the failure or fraction thereof.
§11-17-19a. Criminal penalties.
(b) (a) Misdemeanor penalties. -- If any person commits any act set forth in this subsection (a), the person shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than twenty-five thousand dollars, or imprisoned in a county or regional jail for not more than one year, or both fined and imprisoned. Each such act shall constitute a separate misdemeanor:
(1) Makes The person makes any false entry upon an invoice, package or container of cigarettes or smokeless tobacco products that is required to be made under the provisions of this article, or
(2) The person with intent to evade the tax imposed by this article, presents any such false entry upon an invoice, package or container of tobacco products for the inspection of the commissioner or the commissioner's authorized deputy, agent or employee, or
(2) Prevents (3) The person prevents or hinders the commissioner or his the commissioner's authorized deputy, agent or employee from making a full inspection of any place where cigarettes tobacco products subject to the tax imposed by this state are sold or stored, or
(3) Prevents (4) The person prevents or hinders the full inspection of invoices, books, records or papers required to be kept under the provisions of this article, or
(3) Sells (5) The person sells cigarettes in this state without there having been first affixed to each individual package thereof of cigarettes the stamp or meter impression required to be affixed thereto by this article, or
(6) The person sells tax not paid smokeless tobacco products in this state to a subjobber, retail dealer or consumer in this state, or
(4) Being (7) The person, being a retail dealer or subjobber in this state, has in his or her possession packages of cigarettes not bearing the stamps or meter impression herein required to be affixed thereto by this article, or
(8) The person, being a retail dealer or subjobber in this state, has in his or her possession tax not paid packages of smokeless tobacco products, or
Whoever (9) The person fails to produce on demand by the commissioner, or the commissioner's authorized deputy, agent or employee, invoices of all cigarettes tobacco products purchased or received by him or her within two years prior to such the date of the demand, unless upon satisfactory proof it is shown that such nonproduction is due to providential or other causes beyond his or her control, or
(5) If any (10) The person being a wholesale dealer shall sell cigarettes sells tobacco products to any person in this state other than to another wholesaler, or to a subjobber or retail dealer, and no person in this state other than or
(11) A person who is not a wholesaler or subjobber shall sell cigarettes in this state sells tobacco products to a retail dealer, or It shall be unlawful and a violation of this article for any
(12) A person being a retail cigarette dealer to purchases or acquires cigarettes tobacco products from any person other than a person who is a wholesaler or subjobber in this state, or
(13) The original wholesaler who purchases unstamped cigarettes or tax not paid smokeless tobacco products from the a manufacturer or other person is liable for fails to pay the excise tax imposed by this article and the affixing of fails to affix the required stamps, or meter impressions, or
(6) If any person, firm or corporation, (14) A person who is not a wholesaler of tobacco products, as provided by defined in this article, shall have has in his or her possession within the this state more than twenty packages of cigarettes, that do not bearing bear cigarette tax paid indicia of this state, stamps or meter impressions, or other tax not paid tobacco products, if the retail value thereof is more than thirty dollars for all tax not paid tobacco products. Such possession shall be presumed to be for the purpose of evading the payment of the taxes imposed or due thereon, or
(7) Whoever (15) The person violates any of the provisions of this subsection article or any lawful rule or regulation promulgated by the commissioner under authority of article ten of this code. shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than three hundred dollars nor more than five thousand dollars, or imprisoned in the county jail for not more than one year, or both in the discretion of the court
(c) (b) Felony penalties. -- If any person commits any act set forth in this subsection (b), the person shall be guilty of a felony and, upon conviction thereof, shall be fined not less than twenty-five thousand dollars nor more than fifty thousand dollars, and imprisoned in a state correctional facility for a term of not less than one year nor more than five years. Each such act shall constitute a separate felony:
Whoever (1) The person falsely or fraudulently makes, forges, alters or counterfeits any stamps or meter impressions prescribed, or defined, by the provisions of this article, or its related rules, and regulations and any
(2) The person who knowingly and willfully makes, causes to be made, purchases, receives or has in his or her possession, any device for forging or counterfeiting any stamp or meter impression, or
(3) The person has in his or her possession, any stamps not properly issued by the commissioner, or his the commissioner's authorized employee, agent or deputy, or
(4) The person tampers with or alters any stamping device authorized by the commissioner, or
(5) The person uses more than once any stamp or meter impression provided for and required by this article for the purpose of evading the tax hereby imposed by this article. shall be guilty of a felony and, upon conviction thereof, shall be sentenced to pay a fine of not less than five thousand dollars nor more than ten thousand dollars and imprisoned in the penitentiary for a term of not less than one year nor more than five years
(c) Deposit of penalties. -- All penalties collected under the provisions of this section shall be paid into the general revenue fund.
§11-17-19b. Certain tax not paid tobacco products declared contraband.

(d) (a) Whenever the commissioner or any of his the commissioner's authorized deputies, agents or employees, authorized by him or any peace law-enforcement officer of in this state, for the purpose shall discover any cigarettes or smokeless tobacco products subject to tax, as provided by this article, and upon which the tax was has not been paid, as herein required by this article, such cigarettes or smokeless tobacco products shall thereupon be deemed to be contraband, and the commissioner, or such the commissioner's authorized deputy, agent or employee, or any peace law-enforcement officer of in this state, is hereby authorized and empowered forthwith to seize and take possession of such cigarettes and smokeless tobacco products without a warrant, and such cigarettes tobacco products and related property shall be forfeited to the state as provided in article seven, chapter sixty-a of this code.
(b) Seizure of contraband shall not be deemed to relieve any person from fine or imprisonment, as provided in section nineteen-a of this article, for any of the offenses set forth in that section. and the commissioner shall within a reasonable time thereafter sell such forfeited cigarettes: Provided, That such seizure and sale shall not be deemed to relieve any person from fine or imprisonment as provided herein for violation of any provisions of this article. Such sale may be made in any county the tax commissioner deems most convenient and economical. Notice of such sale shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county wherein such seizure was made and the county wherein the sale is to take place. Notice shall be published at least five days prior to the sale. All taxes and penalties collected under the provisions of this section shall be paid into the state treasury and treated as other taxes collected under this article
§11-17-19c. Magistrate courts have concurrent jurisdiction.
(e) Magistrates shall have concurrent jurisdiction with any other courts having jurisdiction for the trial of all misdemeanors arising under this article.
§11-17-20. Transportation of unstamped cigarettes or tax not paid smokeless tobacco products; forfeitures and sales of cigarettes and equipment.

(a) In general. -- Every person who shall transport transports cigarettes not stamped, as required by this article, or transports tax not paid smokeless tobacco products upon the public highways, waterways, airways, roads or streets of this state, shall have in his or her actual possession invoices or delivery tickets for such cigarettes tobacco products.
which (b) Contents of delivery tickets. -- Delivery tickets shall show (1) the true name and the complete and exact address of the consignor or seller, (2) the true name and complete and exact address of the consignee, or purchaser, (3) the quantity and brands of the cigarettes tobacco products transported and (4) the true name and complete and exact address of the person who has or shall assume payment of the West Virginia state taxes imposed by this article, or the tax, if any, of the state or foreign country at the point of ultimate destination: Provided, That any common carrier which has issued a bill of lading for a shipment of cigarettes tobacco products and is without notice to itself or to any of its agents or employees that said the cigarettes are not stamped as required by this article, or that the tax imposed by this article on smokeless tobacco products has not been paid, shall be deemed to have complied with this article and the vehicle or vessel in which said cigarettes the tax not paid tobacco products are being transported shall not be subject to confiscation hereunder under this section or article seven, chapter sixty-a of this code.
(c) In the absence of such invoices, delivery tickets or bills of leading lading, as the case may be, that meet the requirements of subsections (a) and (b) of this section, the cigarettes tobacco products so transported, the vehicle or vessel in which the cigarettes tobacco products are being transported and any paraphernalia or devices used in connection with the unstamped cigarettes tax not paid tobacco products, are declared to be contraband goods and may be seized by the commissioner, his or the commissioner's authorized deputies, agents or employees, or by any peace law enforcement officer of the state, without a warrant and shall be forfeited to the state as provided in article seven, chapter sixty-a of this code.
§11-17-20a. Criminal penalty for unlawful transportation of tax not paid tobacco products.

If Any person who transports unstamped cigarettes tax not paid tobacco products in violation of this section he shall be twenty of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than three hundred dollars nor more than five thousand dollars, or imprisoned in the regional or county jail not more than one year, or both fined and imprisoned.
§11-17-20b. Vending machines; presence of tax not paid tobacco products.

(a) If unstamped cigarettes or tax not paid smokeless tobacco products are found in any vending machine, both the cigarettes tax not paid tobacco products and the vending machine shall be contraband goods within the meaning of article seven, chapter sixty-a of this code, and may be seized by the commissioner, at the discretion of the commissioner, his or the commissioner's authorized deputies, agents or employees, or any peace law enforcement officer of in this state, without a warrant. The provision of article seven, chapter sixty-a of this code shall apply to the seizure and disposition of the contraband.
Cigarettes and vending machines seized under this section shall be forthwith sold in the manner provided hereinafter in this section and such
(b) Seizure and sale of the contraband shall not relieve the owner of the sold personal property of from any action by the commissioner for violations of any other sections of this article.
The commissioners shall immediately, after any seizure made pursuant to this section, institute a proceeding for the confiscation thereof in the circuit court of the county in which the seizure is made. The court may proceed in a summary manner and may direct confiscation to the commissioner: Provided, That any person claiming to be the holder of security interest in any vehicle or vessel, or vending machine, the disposition of which is provided for above may present his petition so alleging and be heard, and in the event it appears to the court that the property was unlawfully used by a person other than such claimant, and if the said claimant acquired his security interest in good faith and without knowledge that the vehicle or vessel or vending machine, was going to be so used, the court shall either waive forfeiture in favor of such claimant and order the vehicle or vessel or vending machine returned or delivered to such claimant or if it is found that the value thereof exceeds the amount of the claim, the court shall order payment of the amount of the claim out of the proceeds of the sale.
§11-17-23. Special study on impact of smokeless tobacco tax.
(a) The tax commissioner and the commissioner of the bureau of employment programs shall conduct a study to analyze the impact of the provisions of this article on the manufacturers and distributors of smokeless tobacco products and their employees. This study shall include an analysis of the results of taxation of smokeless tobacco products, as provided in this article, as they affect employment, costs of operation and the overall economic impact upon manufacturers and distributors and their employees.
(b) The commissioners shall report the results of the study to the governor and the joint committee on government and finance no later than the first day of September, two thousand two, and shall submit recommendations on how to ameliorate any negative impact upon manufacturers, distributors or employees through proposed tax credits, job training programs, extension of unemployment or other benefits, incentives or other similar solutions.
CHAPTER 60A. UNIFORM CONTROLLED SUBSTANCES ACT.

 ARTICLE 7. WEST VIRGINIA CONTRABAND AND FORFEITURE ACT.
§60A-7-703. Items subject to forfeiture; persons authorized to seize property subject to forfeiture.

(a) The following are subject to forfeiture:
(1) All controlled substances which have been manufactured, distributed, dispensed or possessed in violation of this chapter;
(2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of this chapter;
(3) All tax not paid tobacco products, as that term is defined in section two, article seventeen, chapter eleven of this code, declared to be contraband under article seventeen of said chapter eleven;
(3) (4) All property which is used, or has been used, or is intended for use, as a container for property described in subdivision (1), or (2) or (3);
(4) (5) All conveyances, including aircraft, vehicles or vessels, which are used, have been used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of property described in subdivision (1), or (2) or (3), except that:
(i) No conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under this section unless it appears that the person owning such conveyance is a consenting party or privy to a violation of this chapter;
(ii) No conveyance shall be forfeited under the provisions of this article if the person owning such conveyance establishes that he neither knew, nor had reason to know, that such conveyance was being employed or was likely to be employed in a violation of this chapter; and
(iii) No bona fide security interest or other valid lien in any conveyance shall be forfeited under the provisions of this article, unless the state proves by a preponderance of the evidence that the holder of such security interest or lien either knew, or had reason to know, that such conveyance was being used or was likely to be used in a violation of this chapter;
(5) (6) All books, records, research products and materials, including formulas, microfilm, tapes and data which are used, or have been used, or are intended for use, in violation of this chapter;
(6) (7) All moneys, negotiable instruments, securities or other things of value furnished or intended to be furnished in violation of this chapter by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments and securities used, or which have been used, or which are intended to be used to facilitate any violation of this chapter: Provided, That no property may be forfeited under this subdivision, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without his knowledge or consent;
(7) (8) All real property, including any right, title and interest in any lot or tract of land, and any appurtenances or improvements, which are used, or have been used, or are intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of this chapter punishable by more than one year imprisonment: Provided, That no property may be forfeited under this subdivision, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without his knowledge or consent.
The requirements of this subsection pertaining to the removal of seized property are not mandatory in the case of real property and the appurtenances thereto.
(b) Property subject to forfeiture under this article may be seized by any person granted enforcement powers in section five hundred one, article five of this chapter (hereinafter referred to as the "appropriate person" in this article).
(c) Controlled substances listed in article two of this chapter which are manufactured, possessed, transferred, sold or offered for sale in violation of this chapter are contraband and shall be seized and summarily forfeited to the state. Controlled substances which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state upon the seizure thereof.
(d) Species of plant from which controlled substances may be derived which have been planted or cultivated in violation of the provisions of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state upon the seizure thereof.
(e) The failure, upon demand by the appropriate person, or his authorized agent, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.
(f) Notwithstanding any provision of this article to the contrary, controlled substances listed in article two of this chapter and species of plants from which controlled substances may be derived shall either be destroyed or used only for investigative or prosecutorial purposes.
(g) Notwithstanding any other provisions of this article to the contrary, any items of real property or any items of tangible personal property sold to a bona fide purchaser will not be subject to forfeiture unless the state establishes by clear and convincing proof that such bona fide purchaser knew or should have known that such property had in the previous three years next preceding such sale been used in violation of this chapter or that such property is a controlled substance.



NOTE: The purpose of this bill is to impose an excise tax on smokeless tobacco products and provide for administration, collection and enforcement of the tax. Proceeds from the tax on smokeless tobacco products are dedicated to the general revenue fund.

§11-17-13 is new; therefore, strike-throughs and underscoring have been omitted.

Bill sections 11-17-19a, 11-17-19b and 11-17-19c are new sections. However, their language comes from section 11-17-19 of current law. Bill sections 11-17-20a and 11-17-20b are also new. However, their language comes from section 11-17-20 of current law. Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§11-17-23 is new; therefore, strike-throughs and underscoring have been omitted.

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