hb3137 intr

H. B. 3137

(By Delegate Michael)

[Introduced March 30, 2001; referred to the

Committee on the Judiciary then Finance.]

A BILL to amend and reenact section three, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to business registration tax and business registration certificate; requiring prisoners to provide written authorization from the institution where they are incarcerated in order to be eligible for a business registration certificate; specifying requirements for application; and specifying the tax commissioner's authority to suspend, revoke, refuse to issue or refuse to renew certificate for applications containing false or misleading information or applications omitting information.

Be it enacted by the Legislature of West Virginia:

That section three, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 12. BUSINESS REGISTRATION TAX.

§11-12-3. Business registration certificate required; tax levied; exemption from registration; exemption from tax.

(a) Registration required. -- No person shall, without a business registration certificate, engage in or prosecute, in the state of West Virginia, any business activity without first obtaining a business registration certificate from the tax commissioner of the state of West Virginia. Additionally, before beginning business in this state, such person:

(1) If a transient vendor, shall comply with the provisions of sections twenty through twenty-five of this article;

(2) If a collection agency, shall comply with the provisions of article sixteen, chapter forty-seven of this code;

(3) If an employment agency, shall comply with the provisions of article two, chapter twenty-one of this code;

(4) If selling drug paraphernalia, as defined in section three, article nineteen, chapter forty-seven of this code, shall comply with the provisions of article nineteen, chapter forty-seven of this code;

(5) If a prisoner incarcerated in any jail or other correctional institution operated by, under the authority of, or on behalf of, any government agency within or without this state, shall obtain written and notarized authorization from the warden or administrator of that institution or the designee thereof in order to be eligible for a certificate. That authorization shall be submitted with the application for the certificate, and shall be considered when the tax commissioner determines whether, in his or her discretion, a certificate may be issued. Failure by any prisoner to submit a valid authorization or other required application information may result in the denial of the certificate. The applicant shall clearly state on the application the name of the jail or institution where the prisoner is incarcerated as part of the applicant's mailing address. If in the judgment of the tax commissioner, any application contains false or misleading information or omits required information, the tax commissioner may in his or her discretion suspend, revoke or refuse to issue or refuse to renew the certificate, and the tax commissioner and the state tax department may not be held liable for issuing, suspending, revoking or refusing to issue or refusing to renew the certificate.

Persons engaging in or prosecuting other business activities in this state may also be subject to other provisions of this code which they must satisfy before commencing or while engaging in a business activity in this state.

(b) Tax levied. -- The business registration tax hereby levied shall be fifteen dollars for each annual business registration certificate: Provided, That for registration periods beginning on or after the first day of July, one thousand nine hundred ninety-nine, the business registration tax shall be thirty dollars, except as otherwise provided in this article:

(1) A separate business registration certificate is required for each fixed business location from which property or services are offered for sale or lease to the public as a class, or to a limited portion of the public; or at which customer accounts may be opened, closed or serviced;

(2) A separate business registration certificate is not required for each coin-operated machine. A separate certificate is required for each location from which making coin-operated machines available to the public is itself a business activity;

(3) A business that sells tangible personal property or services from or out of one or more vehicles needs a separate business registration certificate for each fixed location in this state from or out of which business is conducted. A copy of its business registration certificate shall be carried in each vehicle and publicly displayed while business is conducted from or out of the vehicle;

(4) A business registration certificate is required by subsection (a) of this section for every person engaging in purposeful revenue generating activity in this state. If that activity is one for which an employment agency license or a collection agency license or a license to sell drug paraphernalia is required and no other business activity is conducted by that person at each business location for which the employment agency license or collection agency license or license to sell drug paraphernalia is issued, then only that license is required for each such activity conducted by the licensee at each business location. However, if, in addition to the activity for which each license is issued, some other business activity is conducted by the licensee at such business location, a separate business registration certificate is required to conduct the nonlicensed activity.

(1) Who is not required by law to collect or withhold a tax administered under article ten of this chapter; and

(2) Who does not claim exemption from payment of taxes imposed by articles fifteen and fifteen-a of this chapter, shall be exempt from both registration and payment of the tax imposed by this article, if such person had gross income from business activity of four thousand dollars or less during that person's tax year for state income tax purposes immediately preceding the registration period for which a registration certificate is otherwise required by this article.

(d) Exemptions from payment of tax. -- Any person engaging in or prosecuting any business activity in this state who is required by law to collect or withhold any tax administered under article ten of this chapter; or who claims exemption from payment of the taxes imposed by articles fifteen and fifteen-a of this chapter, shall be required to obtain a business registration certificate, as herein before provided, but shall be exempt from payment of the tax levied by subsection (b) of this section, if such person is:

(1) A person who had gross income from business activity of four thousand dollars or less during that person's tax year for state income tax purposes immediately preceding the registration period for which a registration certificate is required under this article;

(2) An organization which qualifies, or would qualify, for exemption from federal income taxes under section 501 of the Internal Revenue Code of 1986, as amended;

(3) This state, or a political subdivision thereof, selling tangible personal property, admissions or services, when those activities compete with or may compete with the activities of another person;

(4) The United States, or an agency or instrumentality thereof, which is exempt from taxation by the states;

(5) A person engaged in the business of agriculture and farming: Provided, That no producer or grower selling products of the farm, garden or dairy and not included within the definition of business under subsection (a), section two of this article shall be required to obtain a business registration certificate or pay the business registration tax;

(6) A foreign retailer who is not a "retailer engaging in business in this state" as defined in section one, article fifteen-a of this chapter, who enters into an agreement with the tax commissioner to voluntarily collect and remit use tax on sales to West Virginia customers.

(e) Money penalty. -- Any person required to obtain a business registration certificate under this section, who is exempt from payment of the tax, as provided in subsection (d)of this section, who does not obtain a registration certificate shall, in lieu of paying the penalty imposed by section nine of this article, pay a penalty of fifteen dollars for each business location for which a certificate is needed: Provided, That application for business registration is made and the applicable money penalty tendered to the tax commissioner within fifteen days after such person receives written notice from the tax commissioner that such person is required to obtain a business registration certificate.

NOTE: The purpose of this bill is to require prisoners to obtain written authorization from prison officials in order to apply for a business registration certificate, and to expressly authorize the tax commissioner in his or her discretion to suspend, revoke or refuse to issue or refuse to renew the certificate for any application that contains false or misleading information or that omits required information.

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