H. B. 4038
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced January 15, 2002; referred to the
Committee on Finance.]
A BILL to amend and reenact section four, article three, chapter
seventeen-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the providing of
an exemption for new residents from payment of the privilege
tax imposed on vehicles upon a showing that the applicant was
not a resident at the time the vehicle was purchased and a
similar tax was paid to another state.
Be it enacted by the Legislature of West Virginia:
That section four, article three, chapter seventeen-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-4. Application for certificate of title; tax for privilege
of certification of title; exceptions; fee on
payments for leased vehicles; penalty for false
swearing.
(a) Certificates of registration of any vehicle or
registration plates for the vehicle, whether original issues or
duplicates, may not be issued or furnished by the division of motor
vehicles or any other officer or agent charged with the duty,
unless the applicant therefor already has received, or at the same
time makes application for and is granted, an official certificate
of title of the vehicle in either an electronic or paper format.
The application shall be upon a blank form to be furnished by the
division of motor vehicles and shall contain a full description of
the vehicle, which description shall contain a manufacturer's
serial or identification number or other number as determined by
the commissioner and any distinguishing marks, together with a
statement of the applicant's title and of any liens or encumbrances
upon the vehicle, the names and addresses of the holders of the
liens and any other information as the division of motor vehicles
may require. The application shall be signed and sworn to by the
applicant. A duly certified copy of the division's electronic
record of a certificate of title shall be admissible in any civil, criminal or administrative proceeding in this state as evidence of
ownership.
(b) A tax is imposed upon the privilege of effecting the
certification of title of each vehicle in the amount equal to five
percent of the value of the motor vehicle at the time of the
certification, to be assessed as follows:
(1) If the vehicle is new, the actual purchase price or
consideration to the purchaser of the vehicle is the value of the
vehicle. If the vehicle is a used or secondhand vehicle, the
present market value at time of transfer or purchase is the value
of the vehicle for the purposes of this section: Provided, That so
much of the purchase price or consideration as is represented by
the exchange of other vehicles on which the tax imposed by this
section has been paid by the purchaser shall be deducted from the
total actual price or consideration paid for the vehicle, whether
the vehicle be new or secondhand. If the vehicle is acquired
through gift, or by any manner whatsoever, unless specifically
exempted in this section, the present market value of the vehicle
at the time of the gift or transfer is the value of the vehicle for
the purposes of this section.
(2) No certificate of title for any vehicle may be issued to any applicant unless the applicant has paid to the division of
motor vehicles the tax imposed by this section which is five
percent of the true and actual value of the vehicle whether the
vehicle is acquired through purchase, by gift or by any other
manner whatsoever, except gifts between husband and wife or between
parents and children: Provided, That the husband or wife, or the
parents or children, previously have paid the tax on the vehicles
transferred to the state of West Virginia.
(3) The division of motor vehicles may issue a certificate of
registration and title to an applicant if the applicant provides
sufficient proof to the division of motor vehicles that the
applicant has paid the taxes and fees required by this section to
a motor vehicle dealership that has gone out of business or has
filed bankruptcy proceedings in the United States bankruptcy court
and the taxes and fees so required to be paid by the applicant have
not been sent to the division by the motor vehicle dealership or
have been impounded due to the bankruptcy proceedings: Provided,
That the applicant makes an affidavit of the same and assigns all
rights to claims for money the applicant may have against the motor
vehicle dealership to the division of motor vehicles.
(4) The division of motor vehicles shall issue a certificate of registration and title to an applicant without payment of the
tax imposed by this section if the applicant is a corporation,
partnership or limited liability company transferring the vehicle
to another corporation, partnership or limited liability company
when the entities involved in the transfer are members of the same
controlled group and the transferring entity has previously paid
the tax on the vehicle transferred. For the purposes of this
section, control means ownership, directly or indirectly, of stock
or equity interests possessing fifty percent or more of the total
combined voting power of all classes of the stock of a corporation
or equity interests of a partnership or limited liability company
entitled to vote or ownership, directly or indirectly, of stock or
equity interests possessing fifty percent or more of the value of
the corporation, partnership or limited liability company.
(5) The tax imposed by this section does not apply to vehicles
to be registered as Class H vehicles or Class M vehicles, as
defined in section one, article ten of this chapter, which are used
or to be used in interstate commerce. Nor does the tax imposed by
this section apply to the titling of Class B vehicles registered at
a gross weight of fifty-five thousand pounds or more, or to the
titling of Class C semitrailers, full trailers, pole trailers and converter gear: Provided, That if an owner of a vehicle has
previously titled the vehicle at a declared gross weight of
fifty-five thousand pounds or more and the title was issued without
the payment of the tax imposed by this section, then before the
owner may obtain registration for the vehicle at a gross weight
less than fifty-five thousand pounds, the owner shall surrender to
the commissioner the exempted registration, the exempted
certificate of title and pay the tax imposed by this section based
upon the current market value of the vehicle: Provided, however,
That notwithstanding the provisions of section nine, article
fifteen, chapter eleven of this code, the exemption from tax under
this section for Class B vehicles in excess of fifty-five thousand
pounds and Class C semitrailers, full trailers, pole trailers and
converter gear does not subject the sale or purchase of the
vehicles to the consumers sales tax.
(6) The tax imposed by this section does not apply to titling
of vehicles leased by residents of West Virginia. A tax is imposed
upon the monthly payments for the lease of any motor vehicle leased
by a resident of West Virginia, which tax is equal to five percent
of the amount of the monthly payment, applied to each payment, and
continuing for the entire term of the initial lease period. The tax shall be remitted to the division of motor vehicles on a
monthly basis by the lessor of the vehicle.
(7) The tax imposed by this section does not apply to titling
of vehicles by a registered dealer of this state for resale only,
nor does the tax imposed by this section apply to titling of
vehicles by this state or any political subdivision thereof, or by
any volunteer fire department or duly chartered rescue or ambulance
squad organized and incorporated under the laws of the state of
West Virginia as a nonprofit corporation for protection of life or
property. The total amount of revenue collected by reason of this
tax shall be paid into the state road fund and expended by the
commissioner of highways for matching federal funds allocated for
West Virginia. In addition to the tax, there is a charge of five
dollars for each original certificate of title or duplicate
certificate of title so issued: Provided, That this state or any
political subdivision of this state, or any volunteer fire
department or duly chartered rescue squad is exempt from payment of
the charge.
(8) The certificate is good for the life of the vehicle, so
long as the vehicle is owned or held by the original holder of the
certificate, and need not be renewed annually, or any other time, except as provided in this section.
(9) If, by will or direct inheritance, a person becomes the
owner of a motor vehicle and the tax imposed by this section
previously has been paid, to the division of motor vehicles, on
that vehicle, he or she is not required to pay the tax.
(10) A person who has paid the tax imposed by this section is
not required to pay the tax a second time for the same motor
vehicle, but is required to pay a charge of five dollars for the
certificate of retitle of that motor vehicle, except that the tax
shall be paid by the person when the title to the vehicle has been
transferred either in this or another state from the person to
another person and transferred back to the person.
(11) The tax imposed by this section does not apply to any
passenger vehicle offered for rent in the normal course of business
by a daily passenger rental car business as licensed under the
provisions of article six-d of this chapter. For purposes of this
section, a daily passenger car means a Class A motor vehicle having
a gross weight of eight thousand pounds or less and is registered
in this state or any other state. In lieu of the tax imposed by
this section, there is hereby imposed a tax of not less than one
dollar nor more than one dollar and fifty cents for each day or part of the rental period. The commissioner shall propose an
emergency rule in accordance with the provisions of article three,
chapter twenty-nine-a of this code to establish this tax.
(12) The tax imposed by this section does not apply to an
applicant for title if the applicant:
(A) Was not a resident of this state at the time the applicant
purchased or otherwise acquired ownership of the vehicle;
(B) Shows verifiable evidence of having paid a similar tax in
his or her previous state of residence as the commissioner may
require;
(C) Has relocated to this state as a new resident and can
present such evidence as the commissioner may require to show
bona-fide residency in this state; and
(D) Makes application for title within thirty days of
establishing residency as prescribed in subsection (a), section
one-a of this article.
(c) Notwithstanding any provisions of this code to the
contrary, the owners of trailers, semitrailers, recreational
vehicles and other vehicles not subject to the certificate of title
tax prior to the enactment of this chapter are subject to the
privilege tax imposed by this section: Provided, That the certification of title of any recreational vehicle owned by the
applicant on the thirtieth day of June, one thousand nine hundred
eighty-nine, is not subject to the tax imposed by this section:
Provided, however, That mobile homes, manufactured homes, modular
homes and similar nonmotive propelled vehicles, except recreational
vehicles and house trailers, susceptible of being moved upon the
highways but primarily designed for habitation and occupancy,
rather than for transporting persons or property, or any vehicle
operated on a nonprofit basis and used exclusively for the
transportation of mentally retarded or physically handicapped
children when the application for certificate of registration for
the vehicle is accompanied by an affidavit stating that the vehicle
will be operated on a nonprofit basis and used exclusively for the
transportation of mentally retarded and physically handicapped
children, are not subject to the tax imposed by this section, but
are taxable under the provisions of articles fifteen and fifteen-a,
chapter eleven of this code.
(d) Any person making any affidavit required under any
provision of this section, who knowingly swears falsely, or any
person who counsels, advises, aids or abets another in the
commission of false swearing, or any person, while acting as an agent of the division of motor vehicles, issues a vehicle
registration without first collecting the fees and taxes or fails
to perform any other duty required by this chapter to be performed
before a vehicle registration is issued is on the first offense
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five hundred dollars or be confined in the
county or regional jail for a period not to exceed six months or,
in the discretion of the court, both fined and confined. For a
second or any subsequent conviction within five years, that person
is guilty of a felony and, upon conviction thereof, shall be fined
not more than five thousand dollars or be imprisoned in the
penitentiary for not less than one year nor more than five years
or, in the discretion of the court, both fined and imprisoned.
(e) Notwithstanding any other provisions of this section, any
person in the military stationed outside West Virginia, or his or
her dependents who possess a motor vehicle with valid registration,
are exempt from the provisions of this article for a period of nine
months from the date the person returns to this state or the date
his or her dependent returns to this state, whichever is later.
(f) No person may transfer, purchase or sell a factory-built
home without a certificate of title issued by the commissioner in accordance with the provisions of this article:
(1) Any person who fails to provide a certificate of title
upon the transfer, purchase or sale of a factory-built home is
guilty of a misdemeanor and, upon conviction thereof, shall for the
first offense be fined not less than one hundred dollars nor more
than one thousand dollars, or be confined in the county or regional
jail for not more than one year or, both fined and confined. For
each subsequent offense, the fine may be increased to not more than
two thousand dollars, with confinement in the county or regional
jail not more than one year or, both fined and confined.
(2) Failure of the seller to transfer a certificate of title
upon sale or transfer of the factory-built home gives rise to a
cause of action, upon prosecution thereof, and allows for the
recovery of damages, costs and reasonable attorney fees.
(g) Notwithstanding any other provision to the contrary,
whenever reference is made to the application for or issuance of
any title or the recordation or release of any lien, it shall be
understood to include the application, transmission, recordation,
transfer of ownership and storage of information in an electronic
format.
NOTE: The purpose of this bill is to exempt new residents
from payment of the privilege tax upon a showing that the applicant
was not a resident at the time the vehicle was purchased and a
similar tax was paid to another state.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates language that would be
added.