H. B. 2673

(By Mr. Speaker, Mr. Kiss, and
Delegates Browning and Staton)
[Introduced January 27, 2003; referred to the
Committee on the Judiciary then Finance.]

A BILL to amend and reenact section five, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section ten-a, article two, chapter eleven-a of said code; and to amend and reenact sections one and six, article one, chapter twenty-two of said code, all relating to required compliance with tax laws of the state; directing the sheriff to send a copy of the published delinquent tax list to the tax commissioner; authorizing the tax commissioner to suspend a business registration certificate for any business that fails to pay real property taxes thirty days after the taxes are published ; stating legislative findings regarding environmental protection laws; authorizing secretary of the department of environmental protection to promulgate rules whereby permits may not be granted without a showing that the applicant is in good standing with regard to the state's tax laws.

Be it enacted by the Legislature of West Virginia:
That section five, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section ten-a, article two, chapter eleven-a be amended and reenacted; and that sections one and six, article one, chapter twenty-two of said code be amended and reenacted, all to read as follows:

CHAPTER 11. TAXATION.

ARTICLE 12. BUSINESS REGISTRATION TAX.

§11-12-5. Time for which registration certificate granted; power of tax commissioner to suspend or cancel certificate; refusal to renew.

(a) Registration period. -- All business registration certificates issued under the provisions of section four of this article shall be for the period of one year beginning the first day of July and ending the thirtieth day of the following June: Provided, That beginning on or after the first day of July, one thousand nine hundred ninety-nine, all business registration certificates issued under the provisions of section four of this article shall be issued for two fiscal years of this state, subject to the following transition rule. If the first year for which a business was issued a business registration certificate under this article began on the first day of July of an even-numbered calendar year, then the tax commissioner may issue a renewal certificate to that business for the period beginning the first day of July, one thousand nine hundred ninety-nine, and ending the thirtieth day of June, two thousand, upon receipt of fifteen dollars for each such one-year certificate. Thereafter, only certificates covering two fiscal years of this state shall be issued.
(b) Revocation or suspension of certificate. --
(1) The tax commissioner may cancel or suspend a business registration certificate at any time during a registration period if:
(A) The registrant filed an application for a business registration certificate, or an application for renewal thereof, for the registration period that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a tax return or to report information required by the tax commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any tax, additions to tax, penalties or interest, or any part thereof, when they became due and payable under this chapter, determined with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the tax commissioner on or before its due date, determined with regard to any authorized extension of time for payment, any tax imposed by this chapter which the registrant collects from any person and holds in trust for this state.
(E) The registrant failed to pay delinquent taxes within thirty days after the delinquent tax list was published, pursuant to section ten-a, article two, chapter eleven-a of this code.
(E) (F) The registrant abused the privilege afforded to it by article fifteen or fifteen-a of this chapter to be exempt from payment of the taxes imposed by such articles on some or all of the registrant's purchases for use in business upon issuing to the vendor a properly executed exemption certificate, by failing to timely pay use tax on taxable purchase for use in business, or by failing to either pay the tax or give a properly executed exemption certificate to the vendor.
(2) Before canceling or suspending any such certificate, the tax commissioner shall give written notice of his or her intent to suspend or cancel the business registration certificate of the taxpayer, the reason for the suspension or cancellation, the effective date of the cancellation or suspension, and the date, time and place where the taxpayer may appear and show cause why such business registration certificate should not be canceled or suspended. This written notice shall be served on the taxpayer in the same manner as a notice of assessment is served under article ten of this chapter, not less than twenty days prior to the date of such show cause informal hearing. The taxpayer may appeal cancellation or suspension of its business registration certificate in the same manner as a notice of assessment is appealed under article ten of this chapter: Provided, That the filing of a petition for appeal shall not stay the effective date of the suspension or cancellation. A stay may be granted only after a hearing is held on a motion to stay filed by the registrant, upon finding that state revenues will not be jeopardized by the granting of the stay. The tax commissioner may, in his or her discretion and upon such terms as he or she may specify, agree to stay the effective date of the cancellation or suspension until another date certain.
(c) Refusal to renew. -- The tax commissioner may refuse to issue or renew a business registration certificate if the registrant is delinquent in the payment of any tax administered by the tax commissioner under article ten of this chapter or the corporate license tax imposed by article twelve-c of this chapter, until the registrant pays in full all such delinquent taxes including interest and applicable additions to tax and penalties. In his or her discretion and upon such terms as he or she may specify, the tax commissioner may enter into an installment payment agreement with such taxpayer in lieu of the complete payment. Failure of the taxpayer to fully comply with the terms of the installment payment agreement shall render the amount remaining due thereunder immediately due and payable and the tax commissioner may suspend or cancel the business registration certificate in the manner hereinbefore provided.

CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.

ARTICLE 2. DELINQUENCY AND METHODS OF ENFORCING PAYMENT.

§11A-2-10a. Notice of delinquency.

On or after April first the first day of each year, the sheriff may prepare and publish a notice stating in effect that the taxes assessed for the previous year have become delinquent, and that unless paid by the thirtieth day of April thirtieth will be included for publication in the forthcoming delinquent lists, which notice, if published, shall be published as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county.
The sheriff shall send a copy of the publication to the tax commissioner so that the commissioner can determine if any registered business is delinquent in its taxes. The tax commissioner may suspend any business registration certificate on account of delinquent taxes that remain unpaid for thirty days after the date of publication, pursuant to section five, article twelve, chapter eleven of this code.

ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.

§22-1-1.  Legislative findings; legislative statement of policy and purpose.

(a) The Legislature finds that:
(1) Restoring and protecting the environment is fundamental to the health and welfare of individual citizens, and our government has a duty to provide and maintain a healthful environment for our citizens.
(2) The state has the primary responsibility for protecting the environment; other governmental entities, public and private organizations and our citizens have the primary responsibility of supporting the state in its role as protector of the environment.
(3) Governmental decisions on matters which relate to the use, enhancement, preservation, protection and conservation of the environment should be made after public participation and public hearings.
(4) Efficiency in the wise use, enhancement, preservation, protection and conservation of the environment can best be accomplished by an integrated and interdisciplinary approach in decision making and would benefit from the coordination, consolidation and integration of state programs and agencies which are significantly concerned with the use, enhancement, preservation, protection and conservation of the environment.
(5) Those functions of government which regulate the environment should be consolidated in order to accomplish the purposes set forth in this article, to carry out the environmental functions of government in the most efficient and cost effective manner, to protect human health and safety and, to the greatest degree practicable, to prevent injury to plant, animal and aquatic life, improve and maintain the quality of life of our citizens, and promote economic development consistent with environmental goals and standards.
(6) The granting of any permit under the provisions of this chapter constitutes a privilege which should be contingent upon a satisfactory showing that the applicant therefor is in good standing with regard to the administration of the provisions of chapter eleven of this code.
(b) The Legislature declares that the establishment of a department of environmental protection is in the public interest and will promote the general welfare of the state of West Virginia without sacrificing social and economic development. It is the policy of the state of West Virginia, in cooperation with other governmental agencies, public and private organizations, and the citizens of this state, to use all practicable means and measures to prevent or eliminate harm to the environment and biosphere, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations. The purposes of this chapter are:
(1) To strengthen the commitment of this state to restore, maintain and protect the environment;
(2) To consolidate environmental regulatory programs in a single state agency;
(3) To provide a comprehensive program for the conservation, protection, exploration, development, enjoyment and use of the natural resources of the state of West Virginia;
(4) To supplement and complement the efforts of the state by coordinating state programs with the efforts of other governmental entities, public and private organizations and the general public; to improve the quality of the environment, the public health and public enjoyment of the environment, and the propagation and protection of animal, aquatic and plant life, in a manner consistent with the benefits to be derived from strong agricultural, manufacturing, tourism and energy-producing industries;
(5) Insofar as federal environmental programs require state participation, to endeavor to obtain and continue state primacy in the administration of such federally-mandated environmental programs, and to endeavor to maximize federal funds which may be available to accomplish the purposes of the state and federal environmental programs and to cooperate with appropriate federal agencies to meet environmental goals;
(6) To encourage the increased involvement of all citizens in the development and execution of state environmental programs;
(7) To promote improvements in the quality of the environment through research, evaluation and sharing of information;
(8) To improve the management and effectiveness of state environmental protection programs;
(9) To increase the accountability of state environmental protection programs to the governor, the Legislature and the public generally; and
(10) To promote pollution prevention by encouraging reduction or elimination of pollutants at the source through process modification, material substitutions, in-process recycling, reduction of raw material use or other source reduction opportunities.
§22-1-6. Secretary of the department of environmental protection.
(a) The secretary is the chief executive officer of the division. Subject to section seven of this article and other provisions of law, the secretary shall organize the department into such offices, sections, agencies and other units of activity as may be found by the secretary to be desirable for the orderly, efficient and economical administration of the department and for the accomplishment of its objects and purposes. The secretary may appoint a deputy secretary, chief of staff, assistants, hearing officers, clerks, stenographers and other officers, technical personnel and employees needed for the operation of the department and may prescribe their powers and duties and fix their compensation within amounts appropriated.
(b) The secretary has the power to and may designate supervisory officers or other officers or employees of the department to substitute for him or her on any board or commission established under this code or to sit in his or her place in any hearings, appeals, meetings or other activities with such substitute having the same powers, duties, authority and responsibility as the secretary. The secretary has the power to delegate, as he or she considers appropriate, to supervisory officers or other officers or employees of the department his or her powers, duties, authority and responsibility relating to issuing permits, hiring and training inspectors and other employees of the department, conducting hearings and appeals and such other duties and functions set forth in this chapter or elsewhere in this code.
(c) The secretary has responsibility for the conduct of the intergovernmental relations of the department, including assuring:
(1) That the department carries out its functions in a manner which supplements and complements the environmental policies, programs and procedures of the federal government, other state governments and other instrumentalities of this state; and
(2) That appropriate officers and employees of the division consult with individuals responsible for making policy relating to environmental issues in the federal government, other state governments and other instrumentalities of this state concerning differences over environmental policies, programs and procedures and concerning the impact of statutory law and rules upon the environment of this state.
(d) In addition to other powers, duties and responsibilities granted and assigned to the secretary by this chapter, the secretary is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the "department of environmental protection" any contract or agreement with the federal government or its departments or agencies, subdivisions of the state, corporations, associations, partnerships or individuals: Provided, That the powers granted to the secretary to enter into agreements or contracts and to make expenditures and obligations of public funds under this subdivision may not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection methods and disseminate information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for environmental protection purposes; to investigate for violations of statutes or rules which the division is charged with enforcing; to serve and execute warrants and processes; to make arrests; issue orders, which for the purposes of this chapter include consent agreements; and to otherwise enforce the statutes or rules which the division is charged with enforcing;
(4) Acquire for the state in the name of the "department of environmental protection" by purchase, condemnation, lease or agreement, or accept or reject for the state, in the name of the department of environmental protection, gifts, donations, contributions, bequests or devises of money, security or property, both real and personal, and any interest in property;
(5) Provide for workshops, training programs and other educational programs, apart from or in cooperation with other governmental agencies, necessary to insure adequate standards of public service in the department. The secretary may provide for technical training and specialized instruction of any employee. Approved educational programs, training and instruction time may be compensated for as a part of regular employment. The secretary is authorized to pay out of federal or state funds, or both, as such funds are available, fees and expenses incidental to such educational programs, training, and instruction. Eligibility for participation by employees will be in accordance with guidelines established by the secretary;
(6) Issue certifications required under 33 U.S.C. §1341 of the federal Clean Water Act and enter into agreements in accordance with the provisions of section seven-a, article eleven of this chapter. Prior to issuing any certification the secretary shall solicit from the division of natural resources reports and comments concerning the possible certification. The division of natural resources shall direct the reports and comments to the secretary for consideration; and
(7) Notwithstanding any provisions of this code to the contrary, employ in-house counsel to perform all legal services for the secretary and the department, including, but not limited to, representing the secretary, any chief, the department or any office thereof in any administrative proceeding or in any proceeding in any state or federal court. Additionally, the secretary may call upon the attorney general for legal assistance and representation as provided by law; and
(8) Promulgate rules in accordance with article three, chapter twenty-nine-a of this code under which no agency within the department shall grant, issue or renew any license, permit, certificate or other authority granted pursuant to the provisions of this chapter to any person or entity who is not in good standing with regard to administration of the provisions of chapter eleven of this code.
(e) The secretary shall be appointed by the governor, by and with the advice and consent of the Senate, and serves at the will and pleasure of the governor.
(f) At the time of his or her initial appointment, the secretary must be at least thirty years old and must be selected with special reference and consideration given to his or her administrative experience and ability, to his or her demonstrated interest in the effective and responsible regulation of the energy industry and the conservation and wise use of natural resources. The secretary must have at least a bachelor's degree in a related field and at least three years of experience in a position of responsible charge in at least one discipline relating to the duties and responsibilities for which the secretary will be responsible upon assumption of the office. The secretary may not be a candidate for or hold any other public office, may not be a member of any political party committee and shall immediately forfeit and vacate his or her office as secretary in the event he or she becomes a candidate for or accepts appointment to any other public office or political party committee.
(g) The secretary will receive an annual salary of eighty-five thousand dollars and will be allowed and paid necessary expenses incident to the performance of his or her official duties. Prior to the assumption of the duties of his or her office, the secretary shall take and subscribe to the oath required of public officers prescribed by section five, article IV of the constitution of West Virginia and shall execute a bond, with surety approved by the governor, in the penal sum of ten thousand dollars, which executed oath and bond will be filed in the office of the secretary of state. Premiums on the bond will be paid from the department funds.

NOTE: The purpose of this bill is to authorize the tax commissioner to suspend a business registration certificate if any business neglects to pay real property taxes thirty days after the delinquent tax list is published. It requires the sheriff to send a copy of the delinquent tax list to the commissioner. It also provides for the Secretary of the Department of Environmental Protection to promulgate a legislative rule whereby DEP permits may not be granted without a showing that the applicant is in good standing with regard to the State's tax laws.

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