ENGROSSED
H. B. 220
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced June 10, 2003.]
A BILL to amend and reenact section two, article two, chapter
five-b of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections two,
three, six, seven, eight, nine, ten, twelve, fourteen,
fifteen, seventeen and nineteen, article twenty-two, chapter
seven of said code; to amend and reenact sections two, three,
six, seven, eight, nine, ten, eleven, twelve, fourteen,
fifteen, sixteen, seventeen and nineteen, article
thirty-eight, chapter eight of said code; to amend and reenact
section eleven-a, article ten, chapter eleven of said code; to
amend and reenact section thirty-two, article fifteen-b of
said chapter; and to further amend said article fifteen-b by
adding thereto four new sections, designated sections thirty-
three, thirty-four, thirty-five and thirty-six, all relating
generally to creation and administration of economic opportunity districts by county commissions and Class I and II
municipalities and the imposition, administration and
collection of special district excise taxes to finance
district economic development projects approved by council for
community and economic development.
Be it enacted by the Legislature of West Virginia:
That
section two, article two, chapter five-b of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that sections two, three, six, seven, eight,
nine, ten, twelve, fourteen, fifteen, seventeen and nineteen,
article twenty-two, chapter seven of said code be amended and
reenacted; that sections two, three, six, seven, eight, nine, ten,
eleven, twelve, fourteen, fifteen, sixteen, seventeen and nineteen,
article thirty-eight, chapter eight of said code be amended and
reenacted; that section eleven-a, article ten, chapter eleven of
said code be amended and reenacted; that section thirty-two,
article fifteen-b of said chapter be amended and reenacted; and
that said article fifteen-b be further amended by adding thereto
four new sections, designated sections thirty-three, thirty-four,
thirty-five and thirty-six
, all to read as follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-2. Council for community and economic development; members,
appointment and expenses; meetings; appointment and compensation of director.
(a) The council for community and economic development, within
the West Virginia development office, is a body corporate and
politic, constituting a public corporation and government
instrumentality. Membership on the council consists of:
(1) No less than nine nor more than eleven members to be
appointed by the governor, with the advice and consent of the
Senate, representing community or regional interests, including
economic development, commerce, banking, manufacturing, the utility
industry, the mining industry, the telecommunications/data
processing industry, small business, labor, tourism or agriculture:
Provided, That one member appointed pursuant to this subsection
shall be a member of a regional planning and development council.
Of the members representing community or regional interests, there
shall be at least three members from each congressional district of
the state and they shall be appointed in such a manner as to
provide a broad geographical distribution of members of the
council;
(2) Two Four at-large members to be appointed by the governor
with the advice and consent of the Senate;
(3) One member to be appointed by the governor from a list of
two persons recommended by the speaker of the House of Delegates
:
Provided, That on and after the effective date of the amendment and
reenactment of this section in the year two thousand three, this subdivision shall be of no force or effect and the term of the
member previously appointed pursuant to this subdivision shall
expire
;
(4) One member to be appointed by the governor from a list of
two persons recommended by the president of the Senate: Provided,
That on and after the effective date of the amendment and
reenactment of this section in the year two thousand three, this
subdivision shall be of no force or effect and the term of the
member previously appointed pursuant to this subdivision shall
expire;
(5)The president of the West Virginia economic development
council; and
(6) The chair, or his or her designee, of the tourism
commission created pursuant to the provisions of section eight of
this article.
In addition, the president of the Senate and the speaker of
the House of Delegates, or his or her designee, shall serve as ex
officio nonvoting members.
(b) The governor shall appoint the appointed members of the
council to four-year terms. Any member whose term has expired
shall serve until his or her successor has been duly appointed and
qualified. Any person appointed to fill a vacancy shall serve only
for the unexpired term. Any Except as otherwise provided in this
section, any member is eligible for reappointment. In cases of any vacancy in the office of a member, the vacancy shall be filled by
the governor in the same manner as the original appointment.
(c) Members of the council are not entitled to compensation
for services performed as members, but are entitled to
reimbursement for all reasonable and necessary expenses actually
incurred in the performance of their duties. A majority of the
voting members constitute a quorum for the purpose of conducting
business. The council shall elect its chair for a term to run
concurrent with the term of office of the member elected as chair.
The chair is eligible for successive terms in that position.
(d) The council shall employ an executive director of the West
Virginia development office who is qualified for the position by
reason of his or her extensive education and experience in the
field of professional economic development. The executive director
shall serve at the will and pleasure of the council. The salary of
the director shall be fixed by the council. The director shall
have overall management responsibility and administrative control
and supervision within the West Virginia development office. It is
the intention of the Legislature that the director provide
professional and technical expertise in the field of professional
economic and tourism development in order to support the
policy-making functions of the council, but that the director not
be a public officer, agent, servant or contractor within the
meaning of section thirty-eight, article VI of the constitution of West Virginia and not be a statutory officer within the meaning of
section one, article two, chapter five-f of this code. Subject to
the provisions of the contract provided for in section four of this
article, the director may hire and fire economic development
representatives employed pursuant to the provisions of section five
of this article.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 22. COUNTY ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§7-22-2. Legislative findings and declaration of purpose.
The Legislature finds that many significant business
opportunities initiated within the counties of this state face
financial and other economic obstacles. This adversely affects the
economic and general well-being of the citizens of those counties.
The Legislature further finds that there are undeveloped,
underdeveloped or seriously deteriorated development areas within
certain counties of this state which are uniquely situated relative
to large populations in other states or to other specific economic
recreational or cultural activities or facilities which will
attract large populations from this state and other states who
would be likely to make substantial retail purchases of tangible
personal property and services offered in modern and modernized
structures and facilities constructed, supplemented, reconstructed
or repaired in such undeveloped, underdeveloped or seriously
deteriorated areas within certain counties of this state. The Legislature further finds that economic inducements provided by the
state are necessary and appropriate to enable the construction,
supplementation, reconstruction and repair of such modern and
modernized structures and facilities in such undeveloped,
underdeveloped or seriously deteriorated areas within certain
counties of this state. Establishment of economic opportunity
development districts within counties of the state, in accordance
with the purpose and powers set forth in this article, will serve
a public purpose and promote the health, safety, prosperity,
security and general welfare of all citizens in the state. It will
also promote the establishment and vitality of significant business
opportunities within counties while serving as an effective means
for developing or restoring and promoting retail and other business
activity within the economic opportunity development districts
created herein. This will be of special benefit to the tax base of
the counties within which any economic development district is
created under pursuant to this article and will specifically
generate substantial incremental increases in excise taxes on sales
within such economic opportunity development districts of tangible
personal property and services and thereby and otherwise will
stimulate economic growth and job creation.
§7-22-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic development established in section two, article two, chapter five-b
of this code;
(2) "County commission" means the governing body of a county
of this state;
(3) "Development expenditures" means payments for governmental
functions, programs, activities, facility construction,
improvements and other goods and services which a district board is
authorized to perform or provide under section five of this
article;
(4) "District" means an economic opportunity development
district created pursuant to this article;
(5) "District board" means a district board created pursuant
to section ten of this article; and
(6) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article. and
(7) "Gross annual district tax revenue amount" means the total
amount of consumers sales and service tax actually remitted to the
tax commissioner by retailers maintaining places of business within
the district with respect to sales made and services rendered by
retailers from a location within the district for the twelve full
calendar months immediately preceding the filing of an application
pursuant to section seven of this article
§7-22-6. Notice; hearing.
(a) General. -- A county commission desiring to create an
economic opportunity development district shall conduct a public
hearing.
(b) Notice of hearing. -- Notice of the public hearing shall
be published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place
of the hearing, the notice must also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The proposed geographic boundaries of the property
proposed to be included in the district; and
(5) The proposed method of financing any costs involved,
including the base and rate of special district excise tax that may
be imposed upon sales of tangible personal property and taxable
services from business locations situated within the proposed
district.
(c) Opportunity to be heard. -- At the time and place set
forth in the notice, the county commission shall afford the
opportunity to be heard to any owner of real property situated in
the proposed district and any residents of the county.
(d) Application to council. -- If the county commission,
following the public hearing, determines it advisable and in the public interest to establish an economic opportunity development
district, it shall apply to the council for community and economic
development for approval of the economic opportunity development
district project pursuant to the procedures provided in section
seven of this article.
§7-22-7. Application to council for community and economic
development for approval of an economic opportunity
development district project.
(a) General. -- The council for community and economic
development shall receive and act on applications filed with it by
county commissions pursuant to section six of this article. Each
application must include:
(1) A true copy of the notice described in section six of this
article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(3) (5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the optimum economic viability of the district following its inception:
Provided, That the amounts of the reserves shall not exceed the
amounts that would be required by ordinary commercial capital
market considerations;
(4) (6) A description of the sources and anticipated amounts
of all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(5) (7) A description of the financial contribution of the
county commission to the funding of development expenditures;
(6) (8) Identification of any businesses that the county
commission expects to relocate their business locations from the
district to another place in the state in connection with the
establishment of the district or from another place in this state
to the district: Provided, That for purposes of this article, any
entities shall be designated "relocated entities";
(7) (9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the county commission expects to continue doing business there
after the district is created;
(8) (10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
tax commissioner by all business locations identified as provided in subdivisions (6) (8) and (7) (9) of this subsection with respect
to their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain in
the district, for the twelve full calendar months next preceding
the date of the application: Provided, That for purposes of this
article, the aggregate amount is designated as "the base tax
revenue amount"; a
(11) A good faith estimate of the gross annual district tax
revenue amount; and the
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article; Provided,
however, That the amount of all development expenditures proposed
to be made in the first twenty-four months following the creation
of the district shall be not less than fifty million dollars
(13) The tax commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the council; (ii) the estimated
amount of economic opportunity district excise tax that will be
collected during the first twelve months after the month in which
the tax commissioner would first begin to collect that tax; and
(iii) the estimated amount of economic opportunity district excise
tax that will be collected during the first thirty-six months after the month in which the tax commissioner would first begin to
collect that tax; and
(14) Any additional information the council may require.
(b) Review of applications. -- The council shall review all
project proposals for conformance to statutory and regulatory
requirements, the reasonableness of the project's budget and
timetable for completion, and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that but for
the existence of sales tax increment financing the project would
not be feasible;
(4) Whether the economic opportunity district excise tax
dollars will leverage or be the catalyst for the effective use of
private, other local government, state or federal funding that is
available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve the opportunities, in the area where the project will be located,
for the successful establishment or expansion of other industrial
or commercial businesses;
(7) Whether the project will directly or indirectly assist in
the creation of additional long-term employment opportunities in
the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fullfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located;
(9) Whether the county commission has a strategy for economic
development in the county and whether the project is consistent
with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the county commission and the project
developer or project team to carry out the project: Provided, That
no project may be approved by the council unless the amount of all
development expenditures proposed to be made in the first
twenty-four months following the creation of the district results
in capital investment of more than fifty million dollars in the district and the county submits clear and convincing information,
to the satisfaction of the council, that such investment will be
made if the council approves the project and the Legislature
authorizes the county commission to levy an excise tax on sales of
goods and services made within the economic opportunity district as
provided in this article.
(b) (c) Additional criteria. -- The council for community and
economic development may establish other criteria for consideration
when approving the applications. Provided, That the
(d) Action on the application. -- The council for community
and economic development shall act to approve or not approve any
application within thirty days following the receipt of the
application or the receipt of any additional information requested
by the council, whichever is the later.
(c) (e) Certification of project. -- If the committee council
for community and economic development approves a county's economic
opportunity district project application, it shall issue to the
county commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the council has determined with respect to the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the council for community and economic
development requests from the tax commissioner and the tax
commissioner provides to the council: Provided, That in
determining the net annual district tax revenue amount, the council
may not use a base tax revenue amount less than that amount
certified by the tax commissioner but, in lieu of confirmation from
the tax commissioner of the gross annual district tax revenue
amount, the council may use the estimate of the gross annual
district tax revenue amount provided by the county commission
pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the council for community and
economic development approves a county's economic opportunity
district project application to expand the geographic boundaries of
a previously certified district, it shall issue to the county
commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the council has determined with respect to the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the council requests from the tax commissioner
and the tax commissioner provides to the council: Provided, That
in determining the net annual district tax revenue amount, the
council may not use a base tax revenue amount less than that amount
certified by the tax commissioner but, in lieu of confirmation from
the tax commissioner of the gross annual district tax revenue
amount, the council may use the estimate of the gross annual
district tax revenue amount provided by the county commission
pursuant to subsection (a) of this section.
(d) (g) Promulgation of rules. -- The council for community
and economic development may promulgate rules to implement the
economic opportunity development district project application
approval process and to describe the criteria and procedures it has
established in connection therewith. These rules are not subject
to the provisions of chapter twenty-nine-a of this code but shall
be filed with the secretary of state.
§7-22-8. Establishment of the economic opportunity development
district fund.
(a) General. -- There is hereby created a special revenue
account in the state treasury designated the "economic opportunity
development district fund" which is an interest-bearing account and
shall be invested in the manner described in section nine-c, article six, chapter twelve of this code with the interest income
a proper credit to the fund.
(b) District subaccount. -- A separate and segregated
subaccount within the account shall be established for each
economic opportunity development district that is approved by the
council. and authorized by the Legislature pursuant to subdivision
(3) of this subsection. Funds In addition to the economic
opportunity district excise tax levied and collected as provided in
this article, funds paid into the account for the credit of any
subaccount may also be derived from the following sources:
(1) All interest or return on the investment accruing to the
subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or
donations which are received from any governmental entity or unit
or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for
this purpose.
§7-22-9. Authorization to levy special district excise tax.
(a) General. -- County commissions have no inherent authority
to levy taxes and have only that authority expressly granted to
them by the Legislature. Because a special district excise tax has
the effect of diverting, for a specified period of years, tax
dollars that otherwise would go into the general revenue fund of
this state The Legislature is specifically extended, and intends by this article, to exercise certain relevant powers expressed in
article X, section six-a of the constitution of this state as
follows: (1) The Legislature may appropriate state funds for use
in matching or maximizing grants-in-aid for public purposes from
the United States or any department, bureau, commission or agency
thereof, or any other source, to any county, municipality or other
political subdivision of the state, under such circumstances and
subject to such terms, conditions and restrictions as the
Legislature may prescribe by law; and (2) the Legislature may
impose a state tax or taxes or dedicate a state tax or taxes or any
portion thereof for the benefit of and use by counties,
municipalities or other political subdivisions of the state for
public purposes, the proceeds of any such imposed or dedicated tax
or taxes or portion thereof to be distributed to such counties,
municipalities or other political subdivisions of the state under
such circumstances and subject to such terms, conditions and
restrictions as the Legislature may prescribe.
Because a special district excise tax would have the effect of
diverting, for a specified period of years, tax dollars which to
the extent, if any, are not essentially incremental to tax dollars
currently paid into the general revenue fund of the state, the
Legislature finds that in order to substantially ensure that such
special district excise taxes will not adversely impact the current
level of the general revenue fund of the state, it is necessary for the Legislature to separately consider and act upon each and every
economic development district which is proposed, including the
unique characteristics of location, current condition and activity
of and within the area included in such proposed economic
opportunity development district and that for such reasons a
statute more general in ultimate application is not feasible for
accomplishment of the intention and purpose of the Legislature in
enacting this article. Therefore, no economic opportunity
development district excise tax may be levied by a county
commission until after the Legislature expressly authorizes the
county commission to levy a special district excise tax on sales of
tangible personal property and services made within district
boundaries approved by the Legislature.
(b) Authorizations. -- The Legislature authorizes the
following county commission to levy special district excise taxes
on sales of tangible personal property and services made from
business locations in the following economic opportunity
development districts:
The Ohio County commission may levy a special district excise
tax for the benefit of the "Fort Henry" economic opportunity
development project district which comprises three hundred
contiguous acres of land.
§7-22-10. Ordinance to create district as approved by council and
authorized by the Legislature.
(a) General. -- If an economic opportunity development
district project has been approved by the council and the levying
of a special district excise tax for the district has been
authorized by the Legislature, all in accordance with this article,
the county commission may create the district by order entered of
record as provided for in article one of this chapter: Provided,
That the county commission may not amend, alter or change in any
manner the boundaries of the economic opportunity development
district authorized by the Legislature. In addition to all other
requirements, the order shall contain the following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and
capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be
imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency,
government entity, agency or instrumentality, firm, partnership,
limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all things
necessary or convenient for the purpose of promoting, developing
and advancing the purposes described in section two of this
article;
(D) To amend or supplement any contracts or leases or to enter
into new, additional or further contracts or leases upon the terms
and conditions for consideration and for any term of duration, with
or without option of renewal, as agreed upon by the district board
and any person, agency, government entity, agency or
instrumentality, firm, partnership, limited partnership, limited
liability company or corporation;
(E) To, unless otherwise provided for in, and subject to the
provisions of any contracts or leases to operate, repair, manage,
and maintain buildings and structures and provide adequate insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or
corporation;
(F) To delegate any authority given to it by law to any of its
officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations and
contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or construction
or in any other lawful manner and hold title thereto in its own
name and to sell, lease or otherwise dispose of all or part of any
real property which it may own, either by contract or at public
auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease
and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that
there exists a continuing need for redevelopment expenditures and that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms as
the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the downtown district
redevelopment economic opportunity development district fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to any
entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and
authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and use,
in the public interest and for the general welfare of the people of
West Virginia, to alleviate and prevent economic deterioration and
to relieve the existing critical condition of unemployment existing
within the state.
(b) Additional contents of order. -- The county commission's
order shall also state the general intention of the county
commission to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of order. -- Upon entry of an
order establishing an economic opportunity development district
excise tax, a certified copy of the order shall be mailed to the
state auditor, as ex officio the chief inspector and supervisor of
public offices, the state treasurer and the tax commissioner.
§7-22-12. Special district excise tax authorized.
(a) General. -- The county commission of a county, authorized
by the Legislature to levy a special district excise tax for the
benefit of an economic opportunity development district, may, by
order entered of record, impose that tax on the privilege of
selling tangible personal property and rendering select services in
the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base of
the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district: Provided, That
except for the exemption provided in section nine-f of said
article, all exemptions and exceptions from the consumers sales and
service tax shall also apply to the special district excise tax and
sales of gasoline and special fuel shall not be subject to special
district excise tax but shall remain subject to the tax levied by
said article fifteen.
(c) Tax rate. -- The rate of a special district excise tax levied pursuant to this section shall be stated in an order entered
of record by the county commission and equal to the general rate of
tax on each dollar of gross proceeds from sales of tangible
personal property and services subject to the tax levied by section
three, article fifteen, chapter eleven of this code. The tax on
fractional parts of a dollar shall be levied and collected in
conformity with the provision of section three of said article.
(d) Collection by tax commissioner. -- The order of the county
commission imposing a special district excise tax shall provide for
the tax to be collected by the tax commissioner in the same manner
as the tax levied by section three, article fifteen, chapter eleven
of this code is administered, assessed, collected and enforced.
(e) Deposit of net tax collected. --
(1) The order of the county commission imposing a special
district excise tax shall provide that the tax commissioner deposit
the net amount of tax collected in the special economic opportunity
development district fund to the credit of the county commission's
subaccount therein for the economic opportunity development
district and that the money in the subaccount may only be used to
pay for development expenditures as provided in this article except
as provided in subsection (f) of this section.
(2) The state treasurer shall withhold from the county
commission's subaccount in the economic opportunity development
district fund and shall deposit in the general revenue fund of this state, on or before the twentieth day of each calendar month next
following the effective date of a special district excise tax, a
sum equal to one twelfth of the base tax revenue amount last
certified by the council pursuant to section seven of this article.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins on or
sixty days after the date of adoption of an order entered of record
imposing the tax or at the first day of any later date calendar
month expressly designated in the ordinance order. that begins on
the first day of a calendar month
(g) Copies of order. -- Upon entry of an order levying a
special district excise tax, a certified copy of the order shall be
mailed to the state auditor, as ex officio the chief inspector and
supervisor of public offices, the state treasurer and the tax
commissioner.
§7-22-14. Modification of included area; notice; hearing.
(a) General. -- The order creating an economic opportunity
development district may not be amended to include additional
contiguous property until after the amendment is approved by the
council in the same manner as an application to approve the
establishment of the district is acted upon under section seven of
this article and the amendment is authorized by the Legislature.
(b) Limitations. -- Additional property may not be included in the district unless it is situated within the boundaries of the
county and is contiguous to the then current boundaries of the
district.
(c) Public hearing required. --
(1) The county commission of any county desiring to amend its
order shall designate a time and place for a public hearing upon
the proposal to include additional property. The notice shall meet
the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the county
commission shall afford the opportunity to be heard to any owners
of real property either currently included in or proposed to be
added to the existing district and to any other residents of the
county.
(d) Application to council. -- Following the hearing, the
county commission may, by resolution, apply to the council for
community and economic development to approve inclusion of the
additional property in the district.
(e) Consideration by council. -- Before the council for
community and economic development approves inclusion of the
additional property in the district, the council shall determine
the amount of taxes levied by article fifteen, chapter eleven of
this code that were collected by businesses located in the area the
county commission proposes to add to the district in the same
manner as the base amount of tax was determined when the district was first created. The state treasurer shall also deposit one
twelfth of this additional tax base amount into the general revenue
fund each month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council approves
amending the boundaries of the district, the Legislature must amend
section nine of this article to allow levy of the special district
excise tax on business located in geographic area to be included in
the district. After the Legislature amends said section, the
county commission may then amend its order: Provided, That the
order may not be effective any earlier than the first day of the
calendar month that begins thirty sixty days after the effective
date of the act of the Legislature authorizing the levy on the
special district excise tax on businesses located in the geographic
area to be added to the boundaries of the district for which the
tax is levied or a later date as set forth in the order of the
county commission.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary amendment
shall on the effective date of the order, determined as provided in
subsection (f) of this section, collect the special district excise
tax on all sales on tangible property or services made from
locations in the district on or after the effective date of the
county commission's order or a later date as set forth in the
order.
§7-22-15. Abolishment and dissolution of district; notice;
hearing.
(a) General. -- Except upon the express written consent of the
council for community and economic development and of all the
holders or obligees of any indebtedness or other instruments the
proceeds of which were applied to any development or redevelopment
expenditures or any indebtedness the payment of which is secured by
revenues payable into the fund provided under section eight of this
article or by any public property, a district may only be abolished
by the county commission when there is no outstanding indebtedness,
the proceeds of which were applied to any development or
redevelopment expenditures or the payment of which is secured by
revenues payable into the fund provided under section eight of this
article, or by any public property, and following a public hearing
upon the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the district
and shall be published as a Class I-0 legal advertisement in
compliance with article three, chapter fifty-nine of this code at
least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the county
commission. Any funds or other assets transferred shall be used
for the benefit of the area included in the district being
abolished.
(d) Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires
compliance with all requirements and procedures set forth in this
article for the initial development, approval, establishment and
creation of an economic opportunity development district.
§7-22-17. Security for bonds.
(a) General. -- Unless the county commission shall otherwise
determine in the resolution authorizing the issuance of the bonds
or notes under the authority of this article, there is hereby
created a statutory lien upon the subaccount created pursuant to
section eight of this article and all special district excise tax
revenues collected for the benefit of the district pursuant to
section eleven-a, article ten, chapter eleven of this code for the
purpose of securing the principal of the bonds or notes and the
interest thereon.
(b) Security for debt service. -- The principal of and
interest on any bonds or notes issued under the authority of this article shall be secured by a pledge of the special district excise
tax revenues derived from the economic opportunity development
district project by the county commission issuing the bonds or
notes to the extent provided in the resolution adopted by the
county commission authorizing the issuance of the bonds or notes.
(c) Trust indenture. --
(1) In the discretion and at the option of the county
commission, the bonds and notes may also be secured by a trust
indenture by and between the county commission and a corporate
trustee, which may be a trust company or bank having trust powers,
within or without the state of West Virginia.
(2) The resolution authorizing the bonds or notes and fixing
the details thereof may provide that the trust indenture may
contain provisions for the protection and enforcing the rights and
remedies of the bondholders as are reasonable and proper, not in
violation of law, including covenants setting forth the duties of
the county commission in relation to the construction, acquisition
or financing of an economic opportunity development district
project, or part thereof or an addition thereto, and the
improvement, repair, maintenance and insurance thereof and for the
custody, safeguarding and application of all moneys and may provide
that the economic opportunity development district project shall be
constructed and paid for under the supervision and approval of the
consulting engineers or architects employed and designated by the county commission or, if directed by the county commission in the
resolution, by the district board, and satisfactory to the
purchasers of the bonds or notes, their successors, assigns or
nominees who may require the security given by any contractor or
any depository of the proceeds of the bonds or notes or the
revenues received from the district project be satisfactory to the
purchasers, their successors, assigns or nominees.
(3) The indenture may set forth the rights and remedies of
the bondholders, the county commission or trustee and the indenture
may provide for accelerating the maturity of the revenue bonds, at
the option of the bondholders or the county commission issuing the
bonds, upon default in the payment of the amounts due under the
bonds.
(4) The county commission may also provide by resolution and
in the trust indenture for the payment of the proceeds of the sale
of the bonds or notes and the revenues from the economic
opportunity development district project to any depository it
determines, for the custody and investment thereof and for the
method of distribution thereof, with safeguards and restrictions it
determines to be necessary or advisable for the protection thereof
and upon the filing of a certified copy of the resolution or of the
indenture for record in the office of the clerk of the county
commission of the county in which the economic opportunity
development project is located, the resolution has the same effect, as to notice, as the recordation of a deed of trust or other
recordable instrument.
(5) In the event that more than one certified resolution or
indenture is recorded, the security interest granted by the first
recorded resolution or indenture has priority in the same manner as
an earlier filed deed of trust except to the extent the earlier
recorded resolution or indenture provides otherwise.
(d) Mortgage or deed of trust. --
(1) In addition to or in lieu of the indenture provided for in
subsection (c) of this section, the principal of and interest on
the bonds or notes may, but need not, be secured by a mortgage or
deed of trust covering all or any part of the economic opportunity
development district project from which the revenues pledged are
derived and the same may be secured by an assignment or pledge of
the income received from the economic opportunity development
district project.
(2) The proceedings under which bonds or notes are authorized
to be issued, when secured by a mortgage or deed of trust, may
contain the same terms, conditions and provisions provided for
herein when an indenture is entered into between the county
commission and a trustee and any mortgage or deed of trust may
contain any agreements and provisions customarily contained in
instruments securing bonds or notes, including, without limiting
the generality of the foregoing, provisions respecting the fixing and collection of revenues from the economic opportunity
development district project covered by the proceedings or
mortgage, the terms to be incorporated in any lease, sale or
financing agreement with respect to the economic opportunity
development district project, the improvement, repair, maintenance
and insurance of the downtown redevelopment economic opportunity
district project, the creation and maintenance of special funds
from the revenues received from the economic opportunity
development district project and the rights and remedies available
in event of default to the bondholders or note holders, the county
commission, or to the trustee under an agreement, indenture,
mortgage or deed of trust, all as the county commission body
considers advisable and shall not be in conflict with the
provisions of this article or any existing law: Provided, That in
making any agreements or provisions, a county commission shall not
have the power to incur original indebtedness by indenture,
ordinance order, resolution, mortgage or deed of trust except with
respect to the economic opportunity development district project
and the application of the revenues therefrom and shall not have
the power to incur a pecuniary liability or a charge upon its
general credit or against its taxing powers unless approved by the
voters in accordance with article one, chapter thirteen of this
code or as otherwise permitted by the constitution of this state.
(e) Enforcement of obligations. --
(1) The proceedings authorizing any bonds and any indenture,
mortgage or deed of trust securing the bonds may provide that, in
the event of default in payment of the principal of or the interest
on the bonds, or notes, or in the performance of any agreement
contained in the proceedings, indenture, mortgage or deed of trust,
payment and performance may be enforced by the appointment of a
receiver in equity with power to charge and collect rents or other
amounts and to apply the revenues from the economic opportunity
development district project in accordance with the proceedings or
the provisions of the agreement, indenture, mortgage or deed of
trust.
(2) Any agreement, indenture, mortgage or deed of trust may
provide also that, in the event of default in payment or the
violation of any agreement contained in the mortgage or deed of
trust, the agreement, indenture, mortgage or deed of trust may be
foreclosed either by sale at public outcry or by proceedings in
equity and may provide that the holder or holders of any of the
bonds secured thereby may become the purchaser at any foreclosure
sale, if the highest bidder therefor.
(f) No pecuniary liability. -- No breach of any agreement,
indenture, mortgage or deed of trust shall impose any pecuniary
liability upon a municipality county or any charge upon its general
credit or against its taxing powers.
§7-22-19. Refunding bonds.
(a) Any bonds issued under this article and at any time
outstanding may at any time, and from time to time, be refunded by
a county commission by the issuance of its refunding bonds in
amount as the county commission considers necessary to refund the
principal of the bonds to be refunded, together with any unpaid
interest thereon; to make any improvements or alterations in the
downtown redevelopment economic opportunity development district
project; and any premiums and commissions necessary to be paid in
connection therewith.
(b) Any refunding may be effected whether the bonds to be
refunded shall have then matured or shall thereafter mature, either
by sale of the refunding bonds and the application of the proceeds
thereof for the redemption of the bonds to be refunded thereby, or
by exchange of the refunding bonds for the bonds to be refunded
thereby: Provided, That the holders of any bonds to be refunded
shall not be compelled without their consent to surrender their
bonds for payment or exchange prior to the date on which they are
payable or, if they are called for redemption, prior to the date on
which they are by their terms subject to redemption.
(c) Any refunding bonds issued under the authority of this
article is subject to the provisions contained in section sixteen
of this article and shall be secured in accordance with the
provisions of section seventeen of this article.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-2. Legislative findings and declaration of purpose.
The Legislature finds that many significant business
opportunities initiated within municipalities of this state face
financial and other economic obstacles.
The Legislature further finds that there are undeveloped,
underdeveloped or seriously deteriorated development areas within
certain municipalities of this state which are uniquely situated
relative to large populations in other states or to other specific
economic recreational or cultural activities or facilities which
will attract large populations from this state and other states who
would be likely to make substantial retail purchases of tangible
personal property and services offered in modern and modernized
structures and facilities constructed, supplemented, reconstructed
or repaired in such undeveloped, underdeveloped or seriously
deteriorated areas within certain municipalities of this state.
The Legislature further finds that economic inducements provided by
the state are necessary and appropriate to enable the construction,
supplementation, reconstruction and repair of such modern and
modernized structures and facilities in such undeveloped,
underdeveloped or seriously deteriorated areas within certain
municipalities of this state. This adversely affects the economic
and general well-being of the citizens of those municipalities.
Establishment of economic opportunity development districts within municipalities of the state, in accordance with the purpose and
powers set forth in this article, will serve a public purpose and
promote the health, safety, prosperity, security and general
welfare of all citizens in the state. It will also promote the
establishment and vitality of significant business opportunities
within those municipalities while serving as an effective means for
developing or restoring and promoting retail and other business
activity within the economic opportunity development districts
created herein. This will be of special benefit to the tax base of
the municipalities within which any economic development district
is created under pursuant to this article and will specifically
generate substantial incremental increases in excise taxes on sales
within such economic opportunity development districts of tangible
personal property and services and thereby and otherwise will
stimulate economic growth and job creation.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic
development established in section two, article two, chapter five-b
of this code;
(2) "County commission" means the governing body of a county
of this state;
(3) (2) "Development expenditures" means payments for
governmental functions, programs, activities, facility construction, improvements and other goods and services which a
district board is authorized to perform or provide under section
five of this article;
(4) (3) "District" means an economic opportunity development
district created pursuant to this article;
(5) (4) "District board" means a district board created
pursuant to section ten of this article;
(6) (5) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article; and
(7) "Gross annual district tax revenue amount" means the total
amount of consumers sales and service tax actually remitted to the
tax commissioner by retailers maintaining places of business within
the district with respect to sales made and services rendered by
retailers from a location within the district for the twelve full
calendar months immediately preceding the filing of an application
pursuant to section seven of this article; and
(8) (6) "Municipality" is a word of art and shall mean, for
the purposes of this article, only Class I and Class II cities as
classified in article one, section three of this chapter.
§8-38-6. Notice; hearing.
(a) General. -- A municipality desiring to create an economic
opportunity development district shall conduct a public hearing.
(b) Notice of hearing. -- Notice of the public hearing shall be published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place
of the hearing, the notice must also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The proposed geographic boundaries of the property
proposed to be included in the district; and
(5) The proposed method of financing any costs involved,
including the base and rate of special district excise tax that may
be imposed upon sales of tangible personal property and taxable
services from business locations situated within the proposed
district.
(c) Opportunity to be heard. -- At the time and place set
forth in the notice, the municipality shall afford the opportunity
to be heard to any owner of real property situated in the proposed
district and any residents of the municipality.
(d) Application to council. -- If the municipality, following
the public hearing, determines it advisable and in the public
interest to establish an economic opportunity development district,
it shall apply to the council for community and economic
development for approval of the economic opportunity development
district project pursuant to the procedures provided in section seven of this article.
§8-38-7. Application to council for community and economic
development for approval of an economic opportunity
development district project.
(a) General. -- The council for community and economic
development shall receive and act on applications filed with it by
municipalities pursuant to section six of this article. Each
application must include:
(1) A true copy of the notice described in section six of this
article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(3) (5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its inception:
Provided, That the amounts of the reserves shall not exceed the
amounts that would be required by ordinary commercial capital
market considerations;
(4) (6) A description of the sources and anticipated amounts
of all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(5) (7) A description of the financial contribution of the
municipality to the funding of development expenditures;
(6) (8) Identification of any businesses that the municipality
expects to relocate their business locations from the district to
another place in the state in connection with the establishment of
the district or from another place in this state to the district:
Provided, That for purposes of this article, any entities shall be
designated "relocated entities";
(7) (9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the municipality expects to continue doing business there
after the district is created;
(8) (10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
tax commissioner by all business locations identified as provided
in subdivisions (6) (8) and (7) (9) of this subsection with respect
to their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain in
the district, for the twelve full calendar months next preceding the date of the application: Provided, That for purposes of this
article, the aggregate amount is designated as "the base tax
revenue amount"; a
(11) A good faith estimate of the gross annual district tax
revenue amount; and the
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article; Provided,
however, That the amount of all development expenditures proposed
to be made in the first twenty-four months following the creation
of the district shall be not less than fifty million dollars
(13) The tax commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the council; (ii) the estimated
amount of economic opportunity district excise tax that will be
collected during the first twelve months after the month in which
the tax commissioner would first begin to collect that tax; and
(iii) the estimated amount of economic opportunity district excise
tax that will be collected during the first thirty-six months after
the month in which the tax commissioner would first begin to
collect that tax; and
(14) Any additional information the council may require.
(b) Review of applications. -- The council shall review all project proposals for conformance to statutory and regulatory
requirements, the reasonableness of the project's budget and
timetable for completion, and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that but for
the existence of sales tax increment financing the project would
not be feasible;
(4) Whether the economic opportunity development district
excise tax dollars will leverage or be the catalyst for the
effective use of private, other local government, state or federal
funding that is available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities, in the area where the project will be located,
for the successful establishment or expansion of other industrial
or commercial businesses;
(7) Whether the project will directly or indirectly assist in the creation of additional long-term employment opportunities in
the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fullfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located;
(9) Whether the municipality has a strategy for economic
development in the municipality and whether the project is
consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the municipality and the project developer
or project team to carry out the project: Provided, That no
project may be approved by the council unless the amount of all
development expenditures proposed to be made in the first twenty-
four months following the creation of the district results in
capital investment of more than fifty million dollars in the
district and the municipality submits clear and convincing
information, to the satisfaction of the council, that such
investment will be made if the council approves the project and the
Legislature authorizes the municipality to levy an excise tax on sales of goods and services made within the economic opportunity
development district as provided in this article.
(b) (c) Additional criteria. -- The council for community and
economic development may establish other criteria for consideration
when approving the applications. Provided, That the
(d) Action on the application. -- The council for community
and economic development shall act to approve or not approve any
application within thirty days following the receipt of the
application or the receipt of any additional information requested
by the council, whichever is the later.
(c) (e) Certification of project. -- If the committee council
for community and economic development approves a municipality's
economic opportunity district project application, it shall issue
to the municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the council for community and economic development has
determined with respect to the district's application based on any
investigation it considers reasonable and necessary, including, but
not limited to, any relevant information the council for community
and economic development requests from the tax commissioner and the tax commissioner provides to the council: Provided, That in
determining the net annual district tax revenue amount, the council
may not use a base tax revenue amount less than that amount
certified by the tax commissioner but, in lieu of confirmation from
the tax commissioner of the gross annual district tax revenue
amount, the council may use the estimate of the gross annual
district tax revenue amount provided by the municipality pursuant
to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the council for community and
economic development approves a municipality's economic opportunity
district project application to expand the geographic boundaries of
a previously certified district, it shall issue to the municipality
a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the council has determined with respect to the
district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the council requests from the tax commissioner
and the tax commissioner provides to the council: Provided, That in determining the net annual district tax revenue amount, the
council may not use a base tax revenue amount less than that amount
certified by the tax commissioner but, in lieu of confirmation from
the tax commissioner of the gross annual district tax revenue
amount, the council may use the estimate of the gross annual
district tax revenue amount provided by the municipality pursuant
to subsection (a) of this section.
(d) (g) Promulgation of rules. -- The council for community
and economic development may promulgate rules to implement the
economic opportunity development district project application
approval process and to describe the criteria and procedures it has
established in connection therewith. These rules are not subject
to the provisions of chapter twenty-nine-a of this code but shall
be filed with the secretary of state.
§8-38-8. Establishment of the economic opportunity development
district fund.
(a) General. -- There is hereby created a special revenue
account in the state treasury designated the "economic opportunity
development district fund" which is an interest-bearing account and
shall be invested in the manner described in section nine-c,
article six, chapter twelve of this code with the interest income
a proper credit to the fund.
(b) District subaccount. -- A separate and segregated
subaccount within the account shall be established for each economic opportunity development district that is approved by the
council. and authorized by the Legislature pursuant to subdivision
(3) of this subsection. Funds In addition to the economic
opportunity district excise tax levied and collected as provided in
this article, funds paid into the account for the credit of any
subaccount may also be derived from the following sources:
(1) All interest or return on the investment accruing to the
subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or
donations which are received from any governmental entity or unit
or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for
this purpose.
§8-38-9. Authorization to levy special district excise tax.
(a) General. -- Municipalities have no inherent authority to
levy taxes and have only that authority expressly granted to them
by the Legislature. Because a special district excise tax has the
effect of diverting, for a specified period of years, tax dollars
that otherwise would go into the general revenue fund of this state
The Legislature is specifically extended, and intends by this
article to exercise certain relevant powers expressed in article X,
section six-a of the constitution of this state as follows: (1)
The Legislature may appropriate state funds for use in matching or
maximizing grants-in-aid for public purposes from the United States or any department, bureau, commission or agency thereof, or any
other source, to any county, municipality or other political
subdivision of the state, under such circumstances and subject to
such terms, conditions and restrictions as the Legislature may
prescribe by law; and (2) the Legislature may impose a state tax or
taxes or dedicate a state tax or taxes or any portion thereof for
the benefit of and use by counties, municipalities or other
political subdivisions of the state for public purposes, the
proceeds of any such imposed or dedicated tax or taxes or portion
thereof to be distributed to such counties, municipalities or other
political subdivisions of the state under such circumstances and
subject to such terms, conditions and restrictions as the
Legislature may prescribe.
Because a special district excise tax would have the effect of
diverting, for a specified period of years, tax dollars which to
the extent, if any, are not essentially incremental to tax dollars
currently paid into the general revenue fund of the state, the
Legislature finds that in order to substantially ensure that such
special district excise taxes will not adversely impact the current
level of the general revenue fund of the state, it is necessary for
the Legislature to separately consider and act upon each and every
economic development district which is proposed, including the
unique characteristics of location, current condition and activity
of and within the area included in such proposed economic opportunity development district and that for such reasons a
statute more general in ultimate application is not feasible for
accomplishment of the intention and purpose of the Legislature in
enacting this article. Therefore, no economic opportunity
development district excise tax may be levied by a municipality
until after the Legislature expressly authorizes the municipality
to levy a special district excise tax on sales of tangible personal
property and services made within district boundaries approved by
the Legislature.
(b) Authorizations. -- The Legislature authorizes the
following municipalities to levy special district excise taxes on
sales of tangible personal property and services made from business
locations in the following economic opportunity development
districts:
§8-38-10. Ordinance to create district as approved by council and
authorized by the Legislature.
(a) General. -- If an economic opportunity development
district project has been approved by the council for community and
economic development and the levying of a special district excise
tax for the district has been authorized by the Legislature, all in
accordance with this article, the municipality may create the
district by order ordinance entered of record as provided for in
article one of this chapter: Provided, That the municipality may
not amend, alter or change in any manner the boundaries of the economic opportunity development district authorized by the
Legislature. In addition to all other requirements, the order
ordinance shall contain the following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and
capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be
imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency, government entity, agency or instrumentality, firm, partnership,
limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all things
necessary or convenient for the purpose of promoting, developing
and advancing the purposes described in section two of this
article;
(D) To amend or supplement any contracts or leases or to enter
into new, additional or further contracts or leases upon the terms
and conditions for consideration and for any term of duration, with
or without option of renewal, as agreed upon by the district board
and any person, agency, government entity, agency or
instrumentality, firm, partnership, limited partnership, limited
liability company or corporation;
(E) To, unless otherwise provided for in, and subject to the
provisions of any contracts or leases to operate, repair, manage,
and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or corporation;
(F) To delegate any authority given to it by law to any of its
officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations and
contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or construction
or in any other lawful manner and hold title thereto in its own
name and to sell, lease or otherwise dispose of all or part of any
real property which it may own, either by contract or at public
auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease
and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that
there exists a continuing need for redevelopment expenditures and
that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms as
the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the downtown district
redevelopment economic opportunity development district fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to any
entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and
authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and use,
in the public interest and for the general welfare of the people of
West Virginia, to alleviate and prevent economic deterioration and
to relieve the existing critical condition of unemployment existing
within the state.
(b) Additional contents of order ordinance. -- The
municipality's order ordinance shall also state the general
intention of the municipality to develop and increase services and
to make capital improvements within the district.
(c) Mailing of certified copies of order ordinance. -- Upon
entry of an order enactment of an ordinance establishing an
economic opportunity development district excise tax, a certified
copy of the order ordinance shall be mailed to the state auditor,
as ex officio the chief inspector and supervisor of public offices,
the state treasurer and the tax commissioner.
§8-38-11. District board; duties.
(a) General. -- The council of a municipality that has been
authorized by the Legislature council for community and economic
development to establish an economic opportunity development
district, in accordance with this article, shall provide, by order
entered of record ordinance, for the appointment of a district
board to oversee the operations of the district: Provided, That
the municipality may, by order in the ordinance, in lieu of
appointing a separate district board, designate itself to act as
the district board.
(b) Composition of board. -- If a separate district board is
to be appointed, it shall be made up of at least seven members, two
of which shall be owners, or representatives of owners, of real
property situated in the economic opportunity development district
and the other five shall be residents of the municipality within
which the district is located.
(c) Annual report. -- The district board, in addition to the
duties prescribed by the order ordinance creating the district,
shall submit an annual report to the municipality and the council
containing:
(1) An itemized statement of its receipts and disbursements
for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal
year;
(3) A recommended program of services to be performed and capital improvements to be made within the district for the coming
fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this article
prohibits any member of the district board from also serving on the
board of directors of a nonprofit corporation with which the
municipality may contract to provide specified services within the
district.
(e) Compensation of board members. -- Each member of the
district board may receive reasonable compensation for services on
the board in the amount determined by the municipality: Provided,
That when a district board is not created for the district but the
work of the board is done by the municipality, the members shall
receive no additional compensation.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by
the Legislature to levy a special district excise tax for the
benefit of an economic opportunity development district, may, by
order entered of record ordinance, impose that tax on the privilege
of selling tangible personal property and rendering select services
in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base of
the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district: Provided, That
except for the exemption provided in said section nine-f of said
article, all exemptions and exceptions from the consumers sales and
service tax shall also apply to the special district excise tax and
sales of gasoline and special fuel shall not be subject to special
district excise tax but shall remain subject to the tax levied by
said article fifteen.
(c) Tax rate. -- The rate of a special district excise tax
levied pursuant to this section shall be stated in an order entered
of record ordinance enacted by the municipality and equal to the
general rate of tax on each dollar of gross proceeds from sales of
tangible personal property and services subject to the tax levied
by section three, article fifteen, chapter eleven of this code.
The tax on fractional parts of a dollar shall be levied and
collected in conformity with the provision of section three of said
article.
(d) Collection by tax commissioner. -- The order ordinance of
the municipality imposing a special district excise tax shall
provide for the tax to be collected by the tax commissioner in the
same manner as the tax levied by section three, article fifteen,
chapter eleven of this code is administered, assessed, collected
and enforced.
(e) Deposit of net tax collected. --
(1) The order ordinance of the municipality imposing a special
district excise tax shall provide that the tax commissioner deposit
the net amount of tax collected in the special economic opportunity
development district fund to the credit of the municipality's
subaccount therein for the economic opportunity development
district and that the money in the subaccount may only be used to
pay for development expenditures as provided in this article except
as provided in subsection (f) of this section.
(2) The state treasurer shall withhold from the municipality's
subaccount in the economic opportunity development district fund
and shall deposit in the general revenue fund of this state, on or
before the twentieth day of each calendar month next following the
effective date of a special district excise tax, a sum equal to one
twelfth of the base tax revenue amount last certified by the
council pursuant to section seven of this article.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins on or
at least sixty days after the date of adoption of an order entered
of record enactment of the ordinance imposing the tax or at any
later date expressly designated in the ordinance that begins on the
first day of a calendar month.
(g) Copies of order ordinance. -- Upon entry of an order
enactment of an ordinance levying a special district excise tax, a certified copy of the order ordinance shall be mailed to the state
auditor, as ex officio the chief inspector and supervisor of public
offices, the state treasurer and the tax commissioner.
§8-38-14. Modification of included area; notice; hearing.
(a) General. -- The order ordinance creating an economic
opportunity development district may not be amended to include
additional contiguous property until after the amendment is
approved by the council for community and economic development in
the same manner as an application to approve the establishment of
the district is acted upon under section seven of this article.
and the amendment is authorized by the Legislature
(b) Limitations. -- Additional property may not be included in
the district unless it is situated within the boundaries of the
municipality and is contiguous to the then current boundaries of
the district.
(c) Public hearing required. --
(1) The council of any municipality desiring to amend its
order ordinance shall designate a time and place for a public
hearing upon the proposal to include additional property. The
notice shall meet the requirements set forth in section six of this
article.
(2) At the time and place set forth in the notice, the
municipality shall afford the opportunity to be heard to any owners
of real property either currently included in or proposed to be added to the existing district and to any other residents of the
municipality.
(d) Application to council. -- Following the hearing, the
municipality may, by resolution, apply to the council for community
and economic development to approve inclusion of the additional
property in the district.
(e) Consideration by council. -- Before the council for
community and economic development approves inclusion of the
additional property in the district, the council shall determine
the amount of taxes levied by article fifteen, chapter eleven of
this code that were collected by businesses located in the area the
municipality proposes to add to the district in the same manner as
the base amount of tax was determined when the district was first
created. The state treasurer shall also deposit one twelfth of
this additional tax base amount into the general revenue fund each
month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council for
community and economic development approves amending the boundaries
of the district, the Legislature must amend section nine of this
article to allow levy of the special district excise tax on
business located in geographic area to be included in the district.
After the Legislature amends said section, the municipality may
then amend its order ordinance: Provided, That the order ordinance
may not be effective any earlier than the first day of the calendar month that begins thirty sixty days after the effective date of the
act of the Legislature authorizing amended ordinance imposing the
levy on of the special district excise tax on businesses located in
the geographic area to be added to the boundaries of the district
for which the tax is levied or the first day of a later date
calendar month as set forth in the order ordinance of the
municipality.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary amendment
shall on the effective date of the order ordinance, determined as
provided in subsection (f) of this section, collect the special
district excise tax on all sales on tangible property or services
made from locations in the district on or after the effective date
of the municipality's order ordinance or a later date as set forth
in the order ordinance.
§8-38-15. Abolishment and dissolution of district; notice;
hearing.
(a) General. -- Except upon the express written consent of the
council for community and economic development and of all the
holders or obligees of any indebtedness or other instruments the
proceeds of which were applied to any development or redevelopment
expenditures or any indebtedness, the payment of which is secured
by revenues payable into the fund provided under section eight of
this article or by any public property, a district may only be abolished by the municipality when there is no outstanding
indebtedness the proceeds of which were applied to any development
or redevelopment expenditures or the payment of which is secured by
revenues payable into the fund provided under section eight of this
article, or by any public property, and following a public hearing
upon the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the district
and shall be published as a Class I-0 legal advertisement in
compliance with article three, chapter fifty-nine of this code at
least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims
against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the municipality.
Any funds or other assets transferred shall be used for the benefit
of the area included in the district being abolished.
(d) Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires
compliance with all requirements and procedures set forth in this article for the initial development, approval, establishment and
creation of an economic opportunity development district.
§8-38-16. Bonds issued to finance economic opportunity development
district projects.
(a) General. -- The municipality that established the economic
opportunity development district may issue bonds or notes for the
purpose of financing development expenditures, as described in
section five of this article, with respect to one or more projects
within the economic opportunity development district.
(b) Limited obligations. -- All bonds and notes issued by a
municipality under the authority of this article are limited
obligations of the municipality.
(c) Term of obligations. -- No municipality may issue notes,
bonds or other instruments for funding district projects or
improvements that exceed a repayment schedule of thirty years.
(d) Debt service. -- The principal and interest on the bonds
shall be payable out of the funds on deposit in the subaccount
established for the economic opportunity development district
pursuant to section eight of this article, including, without
limitation, any funds derived from the special district excise tax
imposed by section twelve of this article or other revenues derived
from the economic opportunity development district to the extent
pledged for the purpose by the municipality in the resolution
authorizing the bonds.
(e) Surplus funds. -- To the extent that the average daily
amount on deposit in the subaccount established for a district
pursuant to section eight of this article exceeds, for more than
six consecutive calendar months, the sum of: (1) One hundred
thousand dollars; plus (2) the amount required to be kept on
deposit pursuant to the documents authorizing, securing or
otherwise relating to the bonds or notes issued under this section,
then the excess shall be used by the district either to redeem the
bonds or notes previously issued or remitted to the general fund of
this state.
(f) Debt not general obligation of municipality. -- Neither
the notes or bonds and any interest coupons issued under the
authority of this article shall ever constitute an indebtedness of
the municipality issuing the notes or bonds within the meaning of
any constitutional provision or statutory limitation and shall
never constitute or give rise to a pecuniary liability of the
municipality issuing the notes or bonds.
(g) Debt not a charge general credit or taxing powers of
municipality. -- Neither the bonds or notes, nor interest thereon,
is a charge against the general credit or taxing powers of the
municipality and that fact shall be plainly stated on the face of
each bond or note.
(h) Issuance of bonds or notes. --
(1) Bonds or notes allowed under this section may be executed, issued and delivered at any time and from time to time, may be in
a form and denomination, may be of a tenor, must be negotiable but
may be registered as to the principal thereof or as to the
principal and interest thereof, may be payable in any amounts and
at any time or times, may be payable at any place or places, may
bear interest at any rate or rates payable at any place or places
and evidenced in any manner and may contain any provisions therein
not inconsistent herewith, all as provided in the order or orders
ordinance of the municipality whereunder the bonds or notes are
authorized to be issued.
(2) The bonds may be sold by the municipality at public or
private sale at, above or below par as the municipality authorizes.
(3) Bonds and notes issued pursuant to this article shall be
signed by the authorized representative of the municipality and
attested by the municipal clerk recorder and be under the seal of
the municipality.
(4) Any coupons attached to the bonds shall bear the facsimile
signature of the authorized representative of the municipality. In
case any of the officials whose signatures appear on the bonds,
notes or coupons cease to be officers before the delivery of the
bonds or notes, their signatures shall, nevertheless, be valid and
sufficient for all purposes to the same extent as if they had
remained in office until the delivery.
(i) Additional bonds or notes. -- If the proceeds of the bonds or notes, by error of calculation or otherwise, are less than the
cost of the economic opportunity development district project, or
if additional real or personal property is to be added to the
district project or if it is determined that financing is needed
for additional development or redevelopment expenditures,
additional bonds or notes may, in like manner, be issued to provide
the amount of the deficiency or to defray the cost of acquiring or
financing any additional real or personal property or development
or redevelopment expenditures and, unless otherwise provided for in
the trust agreement, mortgage or deed of trust, are considered to
be of the same issue and shall be entitled to payment from the same
fund, without preference or priority, and shall be of equal
priority as to any security.
§8-38-17. Security for bonds.
(a) General. -- Unless the municipality shall otherwise
determine in the resolution authorizing the issuance of the bonds
or notes under the authority of this article, there is hereby
created a statutory lien upon the subaccount created pursuant to
section eight of this article and all special district excise tax
revenues collected for the benefit of the district pursuant to
section eleven-a, article ten, chapter eleven of this code for the
purpose of securing the principal of the bonds or notes and the
interest thereon.
(b) Security for debt service. -- The principal of and interest on any bonds or notes issued under the authority of this
article shall be secured by a pledge of the special district excise
tax revenues derived from the economic opportunity development
district project by the municipality issuing the bonds or notes to
the extent provided in the resolution adopted by the municipality
authorizing the issuance of the bonds or notes.
(c) Trust indenture. --
(1) In the discretion and at the option of the municipality,
the bonds and notes may also be secured by a trust indenture by and
between the municipality and a corporate trustee, which may be a
trust company or bank having trust powers, within or without the
state of West Virginia.
(2) The resolution authorizing the bonds or notes and fixing
the details thereof may provide that the trust indenture may
contain provisions for the protection and enforcing the rights and
remedies of the bondholders as are reasonable and proper, not in
violation of law, including covenants setting forth the duties of
the municipality in relation to the construction, acquisition or
financing of an economic opportunity development district project,
or part thereof or an addition thereto, and the improvement,
repair, maintenance and insurance thereof and for the custody,
safeguarding and application of all moneys and may provide that the
economic opportunity development district project shall be
constructed and paid for under the supervision and approval of the consulting engineers or architects employed and designated by the
municipality or, if directed by the municipality in the resolution,
by the district board, and satisfactory to the purchasers of the
bonds or notes, their successors, assigns or nominees who may
require the security given by any contractor or any depository of
the proceeds of the bonds or notes or the revenues received from
the district project be satisfactory to the purchasers, their
successors, assigns or nominees.
(3) The indenture may set forth the rights and remedies of
the bondholders, the municipality or trustee and the indenture may
provide for accelerating the maturity of the revenue bonds, at the
option of the bondholders or the municipality issuing the bonds,
upon default in the payment of the amounts due under the bonds.
(4) The municipality may also provide by resolution and in the
trust indenture for the payment of the proceeds of the sale of the
bonds or notes and the revenues from the economic opportunity
development district project to any depository it determines, for
the custody and investment thereof and for the method of
distribution thereof, with safeguards and restrictions it
determines to be necessary or advisable for the protection thereof
and upon the filing of a certified copy of the resolution or of the
indenture for record with the clerk of the municipality in which
the economic opportunity development project is located, the
resolution has the same effect, as to notice, as the recordation of a deed of trust or other recordable instrument.
(5) In the event that more than one certified resolution or
indenture is recorded, the security interest granted by the first
recorded resolution or indenture has priority in the same manner as
an earlier filed deed of trust except to the extent the earlier
recorded resolution or indenture provides otherwise.
(d) Mortgage or deed of trust. --
(1) In addition to or in lieu of the indenture provided for in
subsection (c) of this section, the principal of and interest on
the bonds or notes may, but need not, be secured by a mortgage or
deed of trust covering all or any part of the economic opportunity
development district project from which the revenues pledged are
derived and the same may be secured by an assignment or pledge of
the income received from the economic opportunity development
district project.
(2) The proceedings under which bonds or notes are authorized
to be issued, when secured by a mortgage or deed of trust, may
contain the same terms, conditions and provisions provided for
herein when an indenture is entered into between the municipality
and a trustee and any mortgage or deed of trust may contain any
agreements and provisions customarily contained in instruments
securing bonds or notes, including, without limiting the generality
of the foregoing, provisions respecting the fixing and collection
of revenues from the economic opportunity development district project covered by the proceedings or mortgage, the terms to be
incorporated in any lease, sale or financing agreement with respect
to the economic opportunity development district project, the
improvement, repair, maintenance and insurance of the downtown
redevelopment economic opportunity development district project,
the creation and maintenance of special funds from the revenues
received from the economic opportunity development district project
and the rights and remedies available in event of default to the
bondholders or note holders, the municipality, or to the trustee
under an agreement, indenture, mortgage or deed of trust, all as
the municipality considers advisable and shall not be in conflict
with the provisions of this article or any existing law: Provided,
That in making any agreements or provisions, a municipality shall
not have the power to incur original indebtedness by indenture,
ordinance, resolution, mortgage or deed of trust except with
respect to the economic opportunity development district project
and the application of the revenues therefrom and shall not have
the power to incur a pecuniary liability or a charge upon its
general credit or against its taxing powers unless approved by the
voters in accordance with article one, chapter thirteen of this
code or as otherwise permitted by the constitution of this state.
(e) Enforcement of obligations. --
(1) The proceedings authorizing any bonds and any indenture,
mortgage or deed of trust securing the bonds may provide that, in the event of default in payment of the principal of or the interest
on the bonds, or notes, or in the performance of any agreement
contained in the proceedings, indenture, mortgage or deed of trust,
payment and performance may be enforced by the appointment of a
receiver in equity with power to charge and collect rents or other
amounts and to apply the revenues from the economic opportunity
development district project in accordance with the proceedings or
the provisions of the agreement, indenture, mortgage or deed of
trust.
(2) Any agreement, indenture, mortgage or deed of trust may
provide also that, in the event of default in payment or the
violation of any agreement contained in the mortgage or deed of
trust, the agreement, indenture, mortgage or deed of trust may be
foreclosed either by sale at public outcry or by proceedings in
equity and may provide that the holder or holders of any of the
bonds secured thereby may become the purchaser at any foreclosure
sale, if the highest bidder therefor.
(f) No pecuniary liability. -- No breach of any agreement,
indenture, mortgage or deed of trust shall impose any pecuniary
liability upon a municipality or any charge upon its general credit
or against its taxing powers.
§8-38-19. Refunding bonds.
(a) Any bonds issued under this article and at any time
outstanding may at any time, and from time to time, be refunded by a municipality by the issuance of its refunding bonds in amount as
the municipality considers necessary to refund the principal of the
bonds to be refunded, together with any unpaid interest thereon; to
make any improvements or alterations in the downtown redevelopment
economic opportunity development district project; and any premiums
and commissions necessary to be paid in connection therewith.
(b) Any refunding may be effected whether the bonds to be
refunded shall have then matured or shall thereafter mature, either
by sale of the refunding bonds and the application of the proceeds
thereof for the redemption of the bonds to be refunded thereby, or
by exchange of the refunding bonds for the bonds to be refunded
thereby: Provided, That the holders of any bonds to be refunded
shall not be compelled without their consent to surrender their
bonds for payment or exchange prior to the date on which they are
payable or, if they are called for redemption, prior to the date on
which they are by their terms subject to redemption.
(c) Any refunding bonds issued under the authority of this
article is subject to the provisions contained in section sixteen
of this article and shall be secured in accordance with the
provisions of section seventeen of this article.
CHAPTER 11. TAXATION.
ARTICLE 10. TAX PROCEDURE AND ADMINISTRATION.
§11-10-11a. Administration of special district excise tax;
commission authorized
.
(a) Any municipality or county commission which, pursuant to
section twelve, article twenty-two, chapter seven of this code,
section eleven, article thirteen-b, chapter eight of this code, or
section twelve, article thirty-eight, chapter eight of this code
imposes a special district
excise tax shall, by express provision
in the order or ordinance imposing that tax, authorize the state
tax commissioner to administer, assess, collect and enforce that
tax on behalf of and as its agent.
(1) The county commission or municipality shall make such
authorization by the adoption of a provision in its order or
ordinance levying a special district excise tax stating its purpose
and referring to this section and providing that the order or
ordinance shall be effective on the first day of a month at least
sixty days after its adoption.
(2) A certified copy of the order or ordinance shall be
forwarded to the state auditor, the state treasurer and the tax
commissioner so that it will be received within five days after its
adoption or enactment.
(b) Any special district excise tax administered under this
section shall be administered and collected by the tax commissioner
in the same manner and subject to the same interest, additions to
tax and penalties as provided for the tax imposed in article
fifteen of this chapter.
(c) All special district excise tax moneys collected by the tax commissioner under this section shall be paid into the state
treasury to the credit of each county commission's subaccount in
the economic opportunity development district fund created pursuant
to section nine, article twenty-two, chapter seven of this code,
or to the credit of each municipality's subaccount in the economic
opportunity development district fund created pursuant to section
nine, article thirty-eight, chapter eight of this code, for the
particular economic opportunity development district. The special
district excise tax moneys shall be credited to the subaccount of
each particular county commission or municipality levying a special
district excise tax being administered under this section. The
credit shall be made to the subaccount of the county commission or
municipality for the economic opportunity development district in
which the taxable sales were made and services rendered as shown by
the records of the tax commissioner and certified by him or her
monthly to the state treasurer, namely, the location of each place
of business of every vendor collecting and paying the tax to the
tax commissioner without regard to the place of possible use by the
purchaser.
(d) As soon as practicable after the special district excise
tax moneys have been paid into the state treasury in any month for
the preceding reporting period, the district board may issue a
requisition to the auditor requesting issuance of a state warrant
for the proper amount in favor of each county commission or municipality entitled to the monthly remittance of its special
district excise tax moneys.
(1) Upon receipt of the requisition, the auditor shall issue
his or her warrant on the state treasurer for the funds requested
and the state treasurer shall pay the warrant out of the
subaccount.
(2) If errors are made in any payment, or adjustments are
otherwise necessary, whether attributable to refunds to taxpayers
or to some other fact, the errors shall be corrected and
adjustments made in the payments for the next six months as
follows: One sixth of the total adjustment shall be included in the
payments for the next six months. In addition, the payment shall
include a refund of amounts erroneously not paid to the county
commission or the municipality and not previously remitted during
the three years preceding the discovery of the error.
(3) A correction and adjustment in payments described in this
subsection due to the misallocation of funds by the vendor shall be
made within three years of the date of the payment error.
(e) Notwithstanding any other provision of this code to the
contrary, the tax commissioner shall deduct and retain for the
benefit of his or her office for expenditure pursuant to
appropriation of the Legislature from each payment into the state
treasury, as provided in subsection (c) of this section, one
percent thereof as a commission to compensate his or her office for the discharge of the duties described in this section.
ARTICLE 15B. STREAMLINED SALES AND USE TAX ADMINISTRATION.
§11-15B-32. Effective date.
(a) The provisions of this article, as amended or added during
the regular legislative session in the year two thousand three,
shall take effect the first day of January, two thousand four, and
apply to all sales made on or after that date and to all returns
and payments due on or after that day, except as otherwise
expressly provided in section five of this article.
(b) The provisions of this article, as amended or added during
the second extraordinary legislative session in the year two
thousand three, shall take effect the first day of January, two
thousand four, and apply to all sales made on or after that date.
§11-15B-33. State administration of local sales and use taxes.
The tax commissioner shall conduct, or authorize others to
conduct on his or her behalf, all audits of sellers registered
under the streamlined sales and use tax agreement for compliance
with the sales and use tax laws of this state and the sales and use
tax laws of its local jurisdictions. A local jurisdiction may not
conduct independent sales or use tax audits of sellers registered
under the streamlined sales and use tax agreement.
§11-15B-34. State and local sales and use tax bases.
(a) General. -- The tax base of a local jurisdiction that
levies a local sales or use tax pursuant to authority granted by the Legislature shall be identical to the sales and use tax base of
this state, unless otherwise prohibited by federal law, except as
provided in subsection (b) of this section.
(b) Exceptions. -- This section does not apply to sales or use
taxes levied on: (1) The wholesale sale of gasoline or special
fuel, which local jurisdictions are prohibited from taxing; or (2)
the retail sale or transfer of motor vehicles, aircraft,
watercraft, modular homes, manufactured homes or mobile homes.
§11-15B-35. Local rate and boundary changes.
(a) General. -- Local tax rate changes shall be effective only
on the first day of a calendar quarter after a minimum of sixty
days' notice to seller, except as provided in subsection (b) of
this section.
(b) Printed catalogs. -- Local tax rate changes shall apply to
purchases from printed catalogs where the purchaser computed the
tax based upon the local tax rate published in the catalog only on
and after the first day of a calendar quarter after a minimum of
one hundred twenty days' notice to the sellers.
(c) Local boundary changes. -- A local jurisdiction boundary
change shall first apply for purposes of computation of a local
sales and use tax on the first day of a calendar quarter after a
minimum of sixty days' notice to sellers.
(d) Database of local jurisdiction boundaries.
(1) The state shall provide and maintain a database that describes boundary changes for all taxing jurisdictions. This
database shall include a description of the change and the
effective date of the change for sales and use tax purposes.
(2) The state shall provide and maintain a database of all
sales and use tax rates for all of the jurisdictions levying taxes
within the state. For the identification of states, counties and
cities, codes corresponding to the rates must be provided according
to federal Information Processing Standards (FIPS) as developed by
the National Institute of Standards and Technology. For the
identification of all other jurisdictions, codes corresponding to
the rates must be in the format determined by the members of the
streamlined sales and use tax agreement.
(3) The state shall provide and maintain a database that
assigns each five-digit and nine-digit zip code within a member
state to the proper tax rates and jurisdictions. The state must
apply the lowest combined tax rate imposed in the zip code area if
the area includes more than one tax rate in any level of taxing
jurisdictions. If a nine-digit zip code designation is not
available for a street address or if a seller is unable to
determine the nine-digit zip code designation of a purchaser after
exercising due diligence to determine the designation, the seller
may apply the rate for the five-digit zip code area. For the
purposes of this section, there is a rebuttable presumption that a
seller has exercised due diligence if the seller has attempted to determine the nine-digit zip code designation by utilizing software
approved by the members of the streamlined sales and use tax
agreement that makes this designation from the street address and
the five-digit zip code of the purchaser.
(4) This state shall participate with other member states in
the development of an address-based system for assigning taxing
jurisdictions. The system shall meet the requirements developed
pursuant to the federal Mobile Telecommunications Sourcing Act (4
U.S.C. Sec. 119). The governing board of the streamlined sales and
use tax agreement may allow a member state to require sellers that
register under this agreement to use an address-based system
provided by that member state. If any member state develops an
address-based assignment system pursuant to the Mobile
Telecommunications Sourcing Act, a seller may use that system in
place of the system provided in
subdivision (3) of this subsection
.
§11-15B-36. Relief from certain liability for local taxes.
(a) General. -- Sellers and certified service providers
registered under the streamlined sales and use tax agreement to
collect sales and use taxes imposed by local jurisdiction of this
state who charged and collected the incorrect amount of sales or
use taxes resulting from the seller or the certified service
provider relying on erroneous data provided by this state on tax
rates, boundaries, or taxing jurisdiction assignments shall be held
harmless by the tax commissioner and the local taxing jurisdiction.
(b) Exception. -- A state that is a member of the streamlined
sales and use tax agreement and provides an address-based system
for assigning taxing jurisdictions pursuant to subsection (G),
section three hundred five of the agreement, or pursuant to the
federal Mobile Telecommunications Sourcing Act, is not required to
provide liability relief for errors resulting from reliance on
information provided by the member state under subsection (F) of
section three hundred five.