hb4135 intr

H. B. 4135

(By Delegate Shaver (By Request))

[Introduced January 23, 2002 ; referred to the

Committee on Political Subdivisions then Finance.]

A BILL to amend chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirteen-q, relating to authorizing county commissions to impose a recreation and amusement tax; tax subject to approval by voters; legislative findings; amount of tax; calculation of tax; taxable events, fees, services and sales; accounting and reporting by vendor; exempted fees, services and sales; collection and record keeping by county sheriffs; and dedication of funds.

Be it enacted by the Legislature of West Virginia:

That chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirteen-q, to read as follows:
ARTICLE 13Q. RECREATION AND AMUSEMENT TAX.
§11-13Q-1. Legislative findings.

The Legislature finds that the influx of tourists to the state has caused an undue burden on emergency services for many of our counties. Providing emergency services to these visitors to our state without additional compensation to cover costs and salaries places financial strain on emergency service providers and on the citizen taxpayers of each county affected.

Therefore, the Legislature finds that county commissions should be granted the authority, with the approval of the majority of the voters of the county, to impose a recreation and amusement tax on those events, services and sales which attract tourists to our state. This will alleviate some of the burden which the counties and their emergency services are experiencing. In addition, collection of a tax on recreation and amusement events, services and sales will generate moneys from the very persons who would most benefit should an emergency situation arise during their visit to our state.
§11-13Q-2. Recreation and amusement tax authorized; imposition by county commission; ratification by majority of county voters.

Beginning on the first day of July, two thousand two, a county commission may provide by ordinance for the imposition of a recreation and amusement tax: Provided, That the ordinance may not become effective until it is ratified by a majority of the legal votes cast on the ordinance by the qualified voters of the county at any primary, general or special election as the county commission directs. Voting on the ordinance may not take place until after notice of the ordinance imposing the tax and the purpose of the tax, including the rate of the tax, the items or services to be taxed, the expected amount of funds to be collected and the dedication of the funds collected, has been published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The publication area for the publication is the county in which the tax will be imposed.
§11-13Q-3. Rate of tax; computation of tax.

(a) The tax rate may not exceed three cents on the dollar of sales, services or fees.

(b) There is no tax on sales, services or fees where the monetary consideration is five cents or less.

(1) On each sale, service or fee where the monetary consideration is from six cents to one dollar, both inclusive, one cent.

(2) If the sale price is in excess of one dollar, one cent on each whole dollar of the sale price, and one cent on the fractional part of the dollar if in excess of fifty-one cents.

(d) On a tax of two cents on the dollar, the amount of tax is computed as follows:

(1) On each sale, service or fee where the monetary consideration is from six cents to fifty cents, both inclusive, one cent.

(2) On each sale, service or fee where the monetary consideration is from fifty-one cents to one dollar, two cents.

(3) If the sale price is in excess of one dollar, two cents on each whole dollar of the sale price, and upon any fractional part of the dollar in excess of whole dollars as follows: One cent on the fractional part of the dollar if less than fifty-one cents; and two cents on the fractional part of the dollar if in excess of fifty cents.

(e) On a tax of three cents on the dollar, the amount of tax is computed as follows:

(1) On each sale, service or fee where the monetary consideration is from six cents to thirty-three cents, both inclusive, one cent.

(2) On each sale, service or fee where the monetary consideration is from thirty-four cents to sixty-seven cents, two cents.

(3) On each sale, service or fee where the monetary consideration is from sixty-seven cents to one dollar, three cents.

(4) If the sale price is in excess of one dollar, three cents on each whole dollar of the sale price, and upon any fractional part of the dollar in excess of whole dollars as follows: One cent on the fractional part of the dollar if less than thirty-three cents; two cents on the fractional part of the dollar if in excess of thirty-two cents but less than sixty-seven cents; and three cents on the fractional part of the dollar if in excess of sixty-six cents.
§11-13Q-4. Taxable items.

(a) Any tax imposed under this article may be collected on the following sales, services or fees, except as provided in section five of this article:

(1) Admission fees to recreation or amusement events, including, but not limited to:

(A) Motor vehicle races or contests;

(B) Motorcycle races or contests;

(D) Theatrical performances or events, including, but not limited to, movies, plays, lectures and concerts;

(E) Tours and programs at historical or manufacturing sites;

(F) Carnivals or circuses;

(G) Craft, art or antique shows;

(H) Flea markets;

(I) Horse, dog or cat shows;

(J) Rodeos; or

(K) Industrial, manufacturing or retailing shows, at which exhibitors or participants rent or reserve booths, stalls or space for the purpose of showcasing products or services;

(2) Sales of alcoholic beverages, as defined in section five, article one, chapter sixty of this code;

(3) Sales of tobacco products, as defined in section two, article seventeen, chapter eleven of this code;

(4) Sales at ski and golf (or pro) shops and of skiing and golfing equipment, including, but not limited to, ski and golf apparel and accessories;

(5) Rentals at ski or golf (or pro) shops and of skiing or golfing equipment, including, but not limited to, skis, poles, boots and bindings, golf clubs and golf carts;

(6) Skiing-related or golfing-related services, including, but not limited to, ski lift tickets, skiing instruction, greens fees and golfing lessons;

(7) Sales of white water rafting, canoeing, kayaking, boating, scuba diving or snorkeling, horseback riding, climbing, hiking and camping apparel, equipment and accessories;

(8) Rentals of equipment or accessories for white water rafting, canoeing, kayaking, boating, scuba diving or snorkeling, horseback riding, climbing, hiking or camping, biking, including rental of horses, pack animals or other for-profit entertainment devices;

(9) Admission and rental fees for bowling, miniature golf and golf driving ranges;

(10) Sales of souvenirs, art and craft items; including those items locally-produced and those items imported;

(11) Rentals of video tape players, video tape recorders, video cameras and other cameras;

(12) Rentals of prerecorded video tapes; and

(13) Sales of food prepared for human consumption, sold at restaurants, delicatessens, fast food establishments and any business retailing carry-out ready-to-eat foods for immediate consumption.

(b) For purposes of this section, the term "apparel" includes wearable items unique to a sport or activity, such as ski boots, ski bib overalls, golf shoes, hiking boots, life jackets and wet suits, but does not include clothing which could be used in other pursuits, such as swim suits, pants, outer jackets or coats, vests, socks, underwear or clothing which could be designated work clothing such as steel-tipped safety boots.
§11-13Q-5. Exemptions.
The following sales, services or fees are exempt from a tax imposed pursuant to this article:

(1) Rental of lodging, including hotel and motel rooms, cabins, lodges and condominiums;

(2) Medical or dental services;

(3) Sale of groceries and household items;

(4) Sale of clothing, except as provided in section four of this article;

(5) Sale of gasoline or diesel fuel;

(6) Sale of motor oil;

(7) Sale or service of utilities, including, but not limited to, electric, telephone, home heating fuel, gas, water, sewer and garbage collection;

(8) Sale of prescription or over-the-counter drugs;

(9) Motor vehicle services, including repairs and maintenance;

(10) Admission fees requested as a voluntary donation or admission fees charged for charity fundraising events or for not-for-profit corporation fund raising events; and

(11) Admission fees assessed for events sponsored by an elementary or secondary school or by a church.
§11-13Q-6. Purchaser to pay; accounting by vendor.

As used in this article, the term "vendor" has the meaning ascribed to it in section two, article fifteen of this chapter.

The purchaser shall pay to the vendor the amount of tax levied by this article which shall be added to and constitute a part of the sales price. It is collectible by the vendor who shall account to the county sheriff for all tax paid by the purchaser. The vendor shall keep the amount of tax paid separate from the proceeds of sale exclusive of the tax unless authorized in writing by the county commission or the county sheriff as authorized by the county commission to keep the amount of tax in a different manner. Where the authorization is given, the county's claim is enforceable against and shall take precedence over all other claims against the moneys commingled.
§11-13Q-7. Failure to collect tax; liability of vendor.
If a vendor fails to collect the tax imposed by a county commission pursuant to this article, the vendor is personally liable for the amount the vendor failed to collect.
§11-13Q-8. Total amount collected is to be remitted.

No profit may accrue to any person as a result of the collection of the tax levied pursuant to this article and the total of all taxes collected pursuant to this article shall be returned and remitted to the sheriff of the county as provided in this article.
§11-13Q-9. When separate records of sales required.

Any vendor engaged in a business subject to this tax, who is at the same time engaged in some other kind of business, occupation or profession, not taxable under this article, shall keep records to show separately the transactions used in determining the tax base taxed pursuant to a tax imposed under the authority of this article. In the event the vendor fails to keep separate records there may be levied upon the vendor a tax based upon the entire gross proceeds of both or all of the vendor's businesses.
§11-13Q-10. Tax returns and payments.

(a) Each county commission may prescribe the form to be used to report the tax collected pursuant to this article. The county commission shall require that any taxes levied by this article are due and payable in monthly installments, on or before the fifteenth day of the month next succeeding the month in which the tax accrued. The vendor shall, on or before the fifteenth day of each month, make out and mail to the sheriff of the county assessing the tax a return, in the form prescribed by the county commission, showing:

(1) The total gross proceeds of the vendor's business for that month;

(2) The gross proceeds of the vendor's business upon which the tax is based;

(3) The amount of tax for which the vendor is liable; and

(4) Any further information considered pertinent by the county commission.

(b) A remittance for the amount of the tax shall accompany the return.

(c) A county commission may, upon written request, authorize a vendor whose books and records are not kept on a monthly basis to file returns at other times.

(d) A county commission may prescribe special forms for returns from vendors, promoters or sponsors of taxable events, services or sales which are transitory, seasonal or one-time in nature.
§11-13Q-11. Consolidated returns.

A county commission may allow a person operating two or more places of business of like character from which are made or dispensed sales or services which are taxable under a tax imposed pursuant to the authority of this article to file consolidated returns covering all the sales or services, on forms as prescribed by the county commission.
§11-13Q-12. Keeping and preserving of records.

The county commission shall require that each vendor remitting taxes pursuant to this section to keep complete and accurate records of taxable sales and of charges, together with a record of the tax collected on the sales, and to keep all invoices, bills of lading and other pertinent documents in the form the county commission requires. The records and other documents shall be preserved for a period of time not less than three years.
§11-13Q-13. Records of sheriff; preservation of returns.

The sheriff of each county imposing a tax pursuant to this article shall keep full and accurate records of all moneys received by him or her. He or she shall preserve all returns filed with him or her for five years.

The sheriff shall keep separate accounts in a permanent book or in a permanent record on an electronic data processing system, in the same manner in which records are kept pursuant to section thirteen, article one, chapter eleven-a of this code, of all the taxes received and disbursed pursuant to this article by him or her. Each of the accounts shall be kept so as to show the total receipts and disbursements up to the close of business on each day; and in a separate column opposite the totals the sheriff shall ascertain and note in figures, at the close of each day's transactions, the balance due from or to him or her, as the case may be, on account of the funds. The account book or a printout of the permanent record on the electronic data processing system is subject to inspection at any time by the tax commissioner, members of the county commission, the clerk of the county commission, the prosecuting attorney, the mayor or treasurer of any municipality located within the county.
§11-13Q-14. Dedication of funds.

Any taxes collected pursuant to this article shall be used by the county commission for the purpose of funding the services, equipment and salaries of county emergency services, including emergency medical services, ambulance services, paramedics, ambulance drivers, fire departments, firefighters, rescue squads, hazardous material response teams, sheriff's deputies, and other emergency services designated by the county commission and approved by the county's voters.

NOTE: The purpose of this bill is to authorize counties, subject to the approval of a majority of the county's voters, to impose a recreation and amusement tax. The tax would be collected on specific recreation and amusement equipment, rentals, services and fees at a rate of up to three cents on the dollar. The sheriff of each county is authorized to collect the tax. Funds collected pursuant to this tax are dedicated to the funding of county emergency services.

This article is new; therefore, strike-throughs and underscoring have been omitted.