H. B. 2741


(By Delegate Flanigan)

[Introduced March 5, 2001 ; referred to the

Committee on the Judiciary then Finance.]





A BILL to amend and reenact sections two, three, four and ten, article six-b, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to removing the requirement of permanency of disability for homestead property tax exemptions for veterans.

Be it enacted by the Legislature of West Virginia:
That sections two, three, four and ten, article six-b, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6B. HOMESTEAD PROPERTY TAX EXEMPTION.

§11-6B-2. Definitions.
For purposes of this article, the term:
(1) "Assessed value" means the value of property as determined under article three of this chapter.
(2) "Claimant" means a person who is age sixty-five or older, or who is certified as being permanently and totally disabled, or who is a veteran of military service certified as being totally disabled, and who owns a homestead that is used and occupied by the owner thereof exclusively for residential purposes.
(3) "Homestead" means a single family residential house, including a mobile or manufactured or modular home, and the land surrounding such structure; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned or leased.
(4) "Owner" means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be deemed considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be deemed considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be deemed considered the property of the party in possession.
(5) "Permanently and totally disabled" means a person who is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental condition which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.
(6) "Sixty-five years of age or older" includes a person who attains the age of sixty-five on or before the thirtieth day of June following the July first assessment day.
(7) "Used and occupied exclusively for residential purposes" means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use: Provided, That failure to satisfy this six-month period shall not prevent allowance of a homestead exemption to a former resident in accordance with section three of this article.
(8) "Tax year" means the calendar year following the July first assessment day.
(9) "Resident of this state" means an individual who is domiciled in this state for more than six months of the calendar year.
(10) "Totally disabled" means a person who is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental condition.
§11-6B-3. Twenty thousand dollar homestead exemption allowed.

(a) General. -- An exemption from ad valorem property taxes shall be allowed for the first twenty thousand dollars of assessed value of a homestead that is used and occupied by the owner thereof exclusively for residential purposes, when such the owner is sixty-five years of age or older or is certified as being permanently and totally disabled, or is a veteran of military service who is certified as physically or mentally totally disabled provided the owner has been or will be a resident of the state of West Virginia for the two consecutive calendar years preceding the tax year to which the homestead exemption relates: Provided, That an owner who receives a similar exemption for a homestead in another state is ineligible for the exemption provided by this section. The owner's application for exemption shall be accompanied by a sworn affidavit stating that such the owner is not receiving a similar exemption in another state: Provided, however, That when a resident of West Virginia establishes residency in another state or country and subsequently returns and reestablishes residency in West Virginia within a period of five years, such the resident may be allowed a homestead exemption without satisfying the requirement of two years consecutive residency if such that person was a resident of this state for two calendar years out of the ten calendar years immediately preceding the tax year for which the homestead exemption is sought. Proof of residency includes, but is not limited to, the owner's voter's registration card issued in this state or a motor vehicle registration card issued in this state. Additionally, when a person is a resident of this state at the time such that person enters upon active duty in the military service of this country and throughout such service maintains this state as his or her state of residence, and upon retirement from the military service, or earlier separation due to a permanent and total physical or mental disability, such that person returns to this state and purchases a homestead, such that person is deemed considered to satisfy the residency test required by this section and shall be allowed a homestead exemption under this section if such that person is otherwise eligible for a homestead exemption under this article; and the tax commissioner may specify, by regulation promulgated under chapter twenty-nine-a of this code, what constitutes acceptable proof of these facts. Only one exemption shall be allowed for each homestead used and occupied exclusively for residential purposes by the owner thereof, regardless of the number of qualified owners residing therein.
(b) Attachment of exemption. -- This exemption shall attach to the homestead occupied by the qualified owner on the July first assessment date and shall be applicable to taxes for the following tax year. An exemption shall not be transferred to another homestead until the following July first. If the homestead of an owner qualified under this article is transferred by deed, will or otherwise, the twenty thousand dollar exemption shall be removed from the property on the next July first assessment date unless the new owner qualifies for the exemption.
(c) Construction. -- The residency requirement specified in subsection (a) of this section is enacted pursuant to the Legislature's authority to prescribe by general law requirements, limitations and conditions for the homestead exemption, as set forth in section one-b, article ten of the constitution of this state. Should the supreme court of appeals or a federal court of competent jurisdiction determine that this residency requirement violates federal law in a decision that becomes final, this section shall then be construed and applied, beginning with the July first assessment day immediately following the date the decision became final, as if the residency requirement had not been enacted, thereby preserving the availability of the homestead exemption and the fiscal integrity of local government levying bodies.
§11-6B-4. Claim for exemption; renewals; waiver of exemption.

(a) General. -- No exemption shall be allowed under this article unless a claim of exemption is filed with the assessor of the county in which the homestead is located, on or before the first day of October following the July first assessment day. In the case of sickness, absence or other disability of the claimant, the claim may be filed by the claimant or his or her duly authorized agent.
(b) Claims for disability exemption. -- Each claim for exemption based on the owner being permanently and totally disabled shall include one of the following forms of documentation in support of said claim: (1) A written certification by a doctor of medicine or doctor of osteopathy licensed to practice their particular profession in this state that the claimant is permanently and totally disabled; (2) a written certification by the social security administration that the claimant is currently receiving benefits for permanent and total disability; (3) a copy of the letter from the social security administration originally awarding benefits to the claimant for permanent and total disability and a copy of a current check for such benefits, marked void; (4) a current social security health insurance (medicare) card in the name of the claimant and a copy of a current check to the claimant, marked void, for benefits from the social security administration for permanent and total disability; (5) a written certification signed by the veterans administration certifying that a person is totally and permanently disabled; (6) any lawfully recognized workers' compensation documentation certifying that a person is totally and permanently disabled; (7) any lawfully recognized pneumoconiosis documentation certifying that a person is totally and permanently disabled; or (8) any other lawfully recognized documentation certifying that a person is totally and permanently disabled. Each claim for exemption based on the person being a veteran with total mental or physical disability shall include one of the forms of documentation in support of the claim as set out in this subsection, except that no certification of the permanency of the disability is required in the documentation of total disability.
(c) Renewals. --
(1) Senior citizens. -- If the claimant is age sixty-five or older, then after the claimant has filed for the exemption once with his or her assessor, there shall be no need for that claimant to refile unless the claimant moves to a new homestead.
(2) Disabled. -- If the claimant is permanently and totally disabled, or is a veteran totally disabled, then after the claimant has filed for the exemption once with his or her assessor, and signed a statement certifying that he or she will notify the assessor if he or she is no longer eligible for an exemption on the basis of being permanently and totally disabled, or in the case of a veteran, totally disabled, and that the claimant will notify the assessor within thirty days of the discontinuance of the receipt of benefits for permanent and total the disability, if the claimant originally claimed receipt of said benefits to document his or her claim for exemption, there shall be no need for that claimant to refile, unless the claimant moves to a new homestead.
(3) Waiver of exemption. -- Any person not filing his or her claim for exemption on or before the first day of October shall be determined to have waived his or her right to exemption for the next tax year.
§11-6B-10. Criminal penalties; restitution.

(a) False or fraudulent claim for exemption. -- Any claimant who willfully files a fraudulent claim for exemption, and any person who knowingly assisted in the preparation or filing of such fraudulent claim for exemption or who knowingly supplied information upon which the fraudulent claim was prepared or allowed, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty nor more than one hundred fifty dollars, or imprisoned in the county or regional jail for not more than six months, or both fined and imprisoned.
(b) Fraudulent assessments. -- (1) An assessor or employee of a county who, with intent to defraud the state, assesses the value of the eligible claimant's homestead for an amount which is in excess of its true and actual value or is in excess of the assessed value of similar property in his or her county, in order to increase the cost of the homestead exemption to his or her county and to thereby secure a larger reimbursement from the state, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned in the county or regional jail for not more than one year, or both fined and imprisoned. Each violation of this subsection shall constitute a separate offense.
(2) An assessor or employee of a county who, with intent to defraud a claimant, assesses the value of the eligible claimant's homestead for an amount which is in excess of its true and actual value or is in excess of the assessed value of similar property in his or her county, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned in the county or regional jail for not more than one year, or both fined and imprisoned. Each violation of this subsection shall constitute a separate offense.
(c) Failure to notify assessor. -- A claimant or his or her legal representative, who, prior to the next first day of July, fails to notify the assessor of the county wherein property subject to the homestead property tax exemption is located, that title to that property or a portion thereof was transferred by deed, grant, sale, gift, will or by the laws of this state regulating descent and distribution, that the property is no longer used and occupied for residential purposes exclusively by the claimant or that the claimant is no longer permanently and totally disabled, or in the case of a claimant who is a veteran, no longer totally disabled, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned for not more than one year or both.
(d) In addition to the criminal penalties provided above, upon conviction of any of the above offenses, the court shall order that the defendant make restitution unto the state for all taxes not paid due to an improper exemption for the claimant and interest thereon at the legal rate until paid.

NOTE: The purpose of this bill is to remove the requirement that a veteran's total disability be permanent, in order to receive a homestead property tax exemption.

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