Senate Bill No. 373

(By Senators Love, Rowe, Ross, Sharpe and Hunter)

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[Introduced January 28, 2003; referred to the Committee on Finance.]

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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 eleven, article two, chapter eleven-a of said code; and to further amend said article by adding thereto a new section, designated section twenty, all relating to payment of personal property taxes as a condition precedent to receiving or maintaining a business registration certificate; requiring sheriffs to notify delinquent personal property owners; and requiring the tax commissioner to suspend or refuse to issue a business registration certificate where business has not paid delinquent personal property taxes.

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 eleven, article two, chapter eleven-a of said code be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section twenty, 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 are 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 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.
(F) The registrant has failed to pay in full the personal property taxes owing for the calendar year immediately preceding the calendar year in which the application is made.
(2) Before canceling or suspending any such business registration 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 must 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 the 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 said article: Provided, That the filing of a petition for appeal shall may 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: Provided, however, That before canceling or suspending a certificate under the provisions of paragraph (F) above, the sheriff of the county wherein business personal property of the registrant is situated and wherein the registrant's business personal property tax is delinquent shall certify to the tax commissioner that the personal property tax delinquency exists and that the registrant has been informed by certified mail of the delinquency. The tax commissioner shall then inform the registrant that the certificate has been and will continue to be suspended until the taxes owing are either paid to the sheriff or exonerated under the provisions of article three of this chapter.
(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 the 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 the 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 in this section.
(d) Refusal to renew due to delinquent personal property tax. -- The tax commissioner shall refuse to issue or renew a business registration certificate when informed in writing, signed by the county sheriff, that personal property owned by the applicant and used in conjunction with the business activity of the applicant is subject to delinquent property taxes. The tax commissioner shall forthwith notify the applicant that the commissioner will not act upon the application until information is provided evidencing that the taxes due are either exonerated or paid.
CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.

ARTICLE 2. DELINQUENCY AND METHODS OF ENFORCING PAYMENT.

§11A-2-11. Delinquent lists; oath.

The sheriff, after ascertaining which of the taxes assessed in his or her county are delinquent, shall, on or before the first day of May next succeeding the year for which the taxes were assessed, prepare the following delinquent lists, arranged by districts and alphabetically by name of the person charged, and showing in respect to each the amount of taxes remaining delinquent on the thirtieth day of April: (1) A list of property in the landbook improperly entered or not ascertainable; (2) a list of other delinquent real estate; and (3) a list of all other delinquent taxes: Provided, That this list shall conclude with a notice, substantially as follows: "Any person holding a West Virginia business registration certificate under the authority of article twelve, chapter eleven of this code who does not pay all delinquent personal property taxes within sixty days of this publication shall have his or her license to do business in this state suspended until the delinquency is cured."
The sheriff on returning each list shall, at the foot thereof, subscribe an oath, which shall must be subscribed before and certified by some person duly authorized to administer oaths, in form or effect as follows:
I, ........, sheriff (or deputy sheriff or collector) of the County of ........., do swear that the foregoing list is, to the best of my knowledge and belief, complete and accurate, and that I have received none of the taxes listed therein.
Except for the oath, the tax commissioner state auditor shall prescribe the form of the delinquent lists.
§11A-2-20. Certified list of delinquent business personal property.

Upon publication by the sheriff of the certified list of delinquent personal property taxes, the sheriff shall give notice by certified mail, return receipt requested, to each person or business appearing thereon who is subject to the provisions of article twelve, chapter eleven of this code that unless the personal property tax delinquency is paid within sixty days of receipt of such notice, the business registration certificate of the business certified as delinquent in the payment of its personal property taxes shall be suspended until the amount of delinquent taxes, interest, costs and penalties, appearing on the list are paid. A copy of the notice must be provided to the prosecuting attorney of the county or counties where the business is located. Upon payment of the delinquent personal property taxes to the sheriff of the county who certified the delinquency of the personal property taxes the sheriff shall communicate to the tax commissioner and to the prosecuting attorney that payment of the delinquent personal property tax has been received and the tax commissioner shall then reinstate the status of the business entity to that of good standing.
Any business claiming to be aggrieved by the suspension of its business registration certificate may file a petition for appeal with the tax commissioner in the same manner as a notice of assessment is appealed under article ten, chapter eleven of this code: Provided, That the filing of a petition for appeal shall not stay the effective date of the suspension. The sheriff is hereby authorized to impose a fee against the delinquent business for costs of the notice required in this section not to exceed ten dollars. The tax commissioner is authorized to propose rules for legislative approval in accordance with the provisions of section three, chapter twenty-nine-a of this code as may be necessary to accomplish the objectives of this section.


NOTE: The purpose of this bill is to require businesses to pay personal property taxes in order to maintain a valid business registration certificate.

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

 §11A-2-20 is new; therefore, strike-throughs and underscoring have been omitted.