H. B. 3138
(By Delegates Azinger and Evans)
[Introduced February 21, 2003; referred to the
Committee on Finance.]
A BILL to amend chapter eleven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eighteen, relating
to imposing an excise tax on the sale or rental of obscene
Be it enacted by the Legislature of West Virginia:
That chapter eleven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article eighteen, to read as follows:
ARTICLE 18. OBSCENE MATERIALS TAX ACT.
(a) When used in this article, words, terms and phrases
defined in subsection (b) of this section, and any variations
thereof required by the context, have the meaning ascribed to them
in this section, except where the context indicates a different meaning is intended.
(b) Definitions. --
(1) "Obscene material" means material, in whatever form it may
exist and by whatever manner it may be published, that:
(A) An average person, applying contemporary adult community
standards, would find, taken as a whole, appeals to the prurient
interest, is intended to appeal to the prurient interest, or is
pandered to a prurient interest;
(B) An average person, applying contemporary adult community
standards, would find, depicts or describes, in a patently
offensive way, sexually explicit conduct consisting of an ultimate
sexual act, normal or perverted, actual or simulated, an excretory
function, masturbation, lewd exhibition of the genitals or
sadomasochistic sexual abuse; and
(C) A reasonable person would find that the material, taken as
a whole, lacks literary, artistic, political or scientific value.
(2) "Commissioner" means the state tax commissioner and, where
the meaning of the context requires, all deputies or agents and
employees duly authorized by him or her.
(3) "Consumer" means a person who receives or in any way comes
into the possession of obscene material.
(4) "Person" means and includes any individual, firm,
association, company or other legal entity.
(5) "Rental" means and includes transferring the possession, or the right to possession, for a definite or indefinite period of
(6) "Sale," "sales" or "selling" includes any transfer of the
possession or ownership of tangible personal property for a
consideration, including a lease or rental, when the transfer or
delivery is made in the ordinary course of the transferor's
business and is made to the transferee or his or her agent for use
or any other purpose.
(7) "Taxpayer" means any person liable for the tax imposed by
(8) "Vendor" means any person engaged in this state in making
sales or rentals of obscene materials.
§11-18-2. Levy of tax; dedication of proceeds.
For the purpose of providing revenue for the general revenue
fund of the state, an excise tax is hereby imposed upon the sale or
rental of obscene materials at the rate of one dollar on each and
every separate piece or article.
§11-18-3. Purchaser to pay; accounting by vendor.
The purchaser shall pay to the vendor the amount of tax levied
by this article which shall be added to and constitute a part of
the sales price, and shall be collectible as such by the vendor who
shall account to the state for all tax paid by the purchaser. The
vendor shall keep the amount of tax paid separate from the proceeds
of sale exclusive of the tax unless authorized in writing by the tax commissioner to keep the amount of tax in a different manner.
Where that authorization is given, the state's claim shall be
enforceable against and shall take precedence over all other claims
against the moneys commingled.
§11-18-3a. Failure to collect tax; liability of vendor.
If any vendor fails to collect the tax imposed by section
three of this article, he or she shall be personally liable for the
amount he or she failed to collect.
§11-18-3b. Liability of purchaser; assessment and collection.
If any purchaser refuses or otherwise does not pay to the
vendor the tax imposed by section three of this article, he or she
shall be personally liable for the amount of the tax applicable to
the transaction or transactions: Provided, That nothing herein
relieves any purchaser who owes the tax and who has not paid the
tax imposed under section three of this article from liability
§11-18-4. Quarterly and annual returns.
(a) When the total obscene materials tax remittance for which
a person is liable does not exceed an average monthly amount over
the taxable year of two hundred fifty dollars, he or she may pay
the tax and make a quarterly return on or before the fifteenth day
of the first month in the next succeeding quarter in lieu of
monthly returns: Provided, That the tax commissioner may, by
nonemergency legislative rules promulgated pursuant to article three, chapter twenty-nine-a of this code, change the minimum
amount established in this subsection.
(b) When the total obscene materials tax remittance for which
a person is liable does not in the aggregate exceed six hundred
dollars for the taxable year, he or she may pay the tax and make an
annual return on or before the fifteenth day of the first month
next succeeding the end of his or her taxable year: Provided, That
the tax commissioner may, by nonemergency legislative rules
promulgated pursuant to article three, chapter twenty-nine-a of
this code, change the minimum amount established in this
§11-18-5. Annual return; extension of time.
(a) Date due. -- On or before thirty days after the end of the
tax year, each person liable for the payment of any tax due under
this article shall make and file an annual return in such form as
may be required by the tax commissioner, showing:
(1) Total number of pieces or articles of obscene material
sold by his or her business for preceding tax year;
(2) Gross proceeds upon which the tax for that year was
(3) Any other information necessary in the computation or
collection of the tax that the tax commissioner may require.
(b) Supporting schedule for consolidated return. -- Whenever
a person operates two or more places of business and files a consolidated monthly return, a schedule shall be attached to the
consolidated annual return showing, for each place of business, the
total number of sales of pieces or articles subject to the obscene
material tax and the total sum of tax collections.
(c) Payment. -- After deducting the amount of prior payments
during the tax year, the taxpayer shall forward the annual return
along with payment of any remaining tax, due for the preceding tax
year, to the tax commissioner. The taxpayer or his or her duly
authorized agent shall verify the return under oath.
(d) Extension of time. -- The tax commissioner for good cause
shown, may, on written application of a taxpayer, extend the time
for making any return required by the provisions of this article.
§11-18-6. Consolidated returns.
A person operating two or more places of business of like
character from which obscene materials are sold or rented and are
taxable hereunder shall file consolidated returns covering all
§11-18-7. Keeping and preserving of records.
Each taxpayer shall keep complete and accurate records of
taxable sales and of charges, together with a record of the tax
collected thereon, and shall keep all invoices, bills of lading and
such other pertinent documents in such form as the tax commissioner
may by rule require. Such records and other documents shall be
preserved for a period of time not less than three years, unless the tax commissioner shall consent in writing to their destruction
within that period or by order require that they be kept longer.
§11-18-8. Proceeds of tax; appropriation of certain revenues.
The proceeds of the tax imposed by this article shall be
deposited in the general revenue fund of the state
NOTE: The purpose of this bill is to produce revenue by
imposition of a tax upon the sale or rental of obscene materials.
This article is new; therefore, strike-throughs and
underscoring have been omitted.