H. B. 2982
(By Delegates Blair, Border, C. Miller, Ireland, Andes,
Tansill, Sumner, Rowan, Schoen, Sobonya, and Porter)
[Introduced February 9, 2007; referred to the
Committee on Roads and Transportation then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §11-15-3c; to amend
and reenact §17A-3-4 of said code all relating to taxation;
the imposition of a five percent tax on the sale and use of
motor vehicles; exemptions; and elimination of the five
percent tax for privilege of certification of title.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §11-15-3c; and that
§17A-3-4 of said code be amended
and reenacted, all to read as
follows:
ARTICLE 15.CONSUMER SALES AND SERVICE TAX.
§11-15-3c.Imposition of consumer sales tax on motor vehicle
sales; rate of tax; use of motor vehicle
purchased out of state; definition of sale;
definition of motor vehicle; exemptions; collection of tax by Department of Motor
Vehicles; dedication of tax to highways;
legislative and emergency rules.
(a) Notwithstanding any provision of this article or article
fifteen-a to the contrary, beginning on the first day of July,
two thousand and seven, all motor vehicle sales to West Virginia
residents shall be subject to the consumer sales tax imposed by
this article.
(b) Rate of tax on motor vehicles. -- Notwithstanding any
provision of this article or article fifteen-a of this chapter to
the contrary, the rate of tax on the sale and use of a motor
vehicle shall be five percent of its sale price, as defined in
section two, article fifteen-b of this chapter.
(c) Motor vehicles purchased out of state.-- Notwithstanding
this article or article fifteen-a to the contrary, the tax
imposed by this section shall apply to all motor vehicles, used
as defined by section one, article fifteen-a, chapter eleven of
this code, within this state, regardless of whether the vehicle
was purchased in a state other than West Virginia.
(d) Definition of Sale. -- Notwithstanding any provision of
this article or article fifteen-a to the contrary, for purposes
of this section "sale", "sales" or "selling" means any transfer
or lease of the possession or ownership of a motor vehicle for
consideration, including isolated transactions between
individuals not being made in the ordinary course of repeated and successive business and also including casual and occasional
sales between individuals not conducted in a repeated manner or
in the ordinary course of repetitive and successive transactions.
(e) Definition of Motor Vehicle. -- For purposes of this
section "motor vehicle" means every propellable device in, or
upon which any person or property is or may be transported or
drawn upon a highway including but not limited to: automobiles;
buses; motor homes; motorcycles; motorboats; all-terrain
vehicles; snowmobiles; low speed vehicles; trucks, truck
tractors, and road tractors having a weight of less than fifty
five thousand pounds; trailers, semitrailers, full trailers, pole
trailers, and converter gear having a gross weight of less than
two thousand pounds; and motorboat trailers, fold down camping
trailers, traveling trailers, house trailers, and motor homes;
except that the term
"motor vehicle" does not include: modular
homes, manufactured homes, mobile homes, similar nonmotive
propelled vehicles susceptible of being moved upon the highways
but primarily designed for habitation and occupancy; devices
operated regularly for the transportation of persons for
compensation under a certificate of convenience and necessity or
contract carrier permit issued by the public service commission;
mobile equipment as defined in section one, article one, chapter
seventeen-a; special mobile equipment defined in section one,
article one, chapter seventeen-a; trucks, truck tractors, and
road tractors having a gross weight of fifty-five thousand pounds or more; trailers, semitrailers, full trailers, pole trailers and
converter gear
, having weight of two thousand pounds or greater:
Provided, however, That notwithstanding the provisions of section
nine, article fifteen, chapter eleven of this code, the exemption
from tax under this section for mobile equipment as defined in
section one, article one, chapter seventeen-a; special mobile
equipment defined in section one, article one, chapter seventeen-
a
; trucks, truck tractors, and road tractors having a gross
weight of fifty-five thousand pounds or more; and trailers,
semitrailers, full trailers, pole trailers and converter gear
,
having weight of two thousand pounds or greater
; does not subject
the sale or purchase of the vehicle to the consumer sales and
service tax imposed by section three, article fifteen, chapter
eleven.
(f) Exemptions. -- Notwithstanding any other provision of
this code to the contrary, the tax imposed by this section shall
not be subject to any exemption in this code other than the
following:
(1)
The tax imposed by this section does not apply to any
passenger vehicle offered for rent in the normal course of
business by a daily passenger rental car business as licensed
under the provisions of article six-d of this chapter. For
purposes of this section, a daily passenger car means a motor
vehicle having a gross weight of eight thousand pounds or less
and is registered in this state or any other state. In lieu of the tax imposed by this section, there is hereby imposed a tax of
not less than one dollar nor more than one dollar and fifty cents
for each day or part of the rental period. The commissioner
shall propose an emergency rule in accordance with the provisions
of article three, chapter twenty-nine-a of this code to establish
this tax.
(2) The tax imposed by this section does not apply where the
motor vehicle has been acquired by a corporation, partnership or
limited liability company from another corporation, partnership
or limited liability company that is a member of the same
controlled group and the entity transferring the motor vehicle
has previously paid the tax on that motor vehicle imposed by this
section. For the purposes of this section, control means
ownership, directly or indirectly, of stock or equity interests
possessing fifty percent or more of the total combined voting
power of all classes of the stock of a corporation or equity
interests of a partnership or limited liability company entitled
to vote or ownership, directly or indirectly, of stock or equity
interests possessing fifty percent or more of the value of the
corporation, partnership or limited liability company.
(3) The tax imposed by this section does not apply where
motor vehicle has been acquired by a senior citizen service
organization which is exempt from the payment of income taxes
under the United States Internal Revenue Code, Title 26 U.S.C.
§501(c)(3) and which is recognized to be a bona fide senior citizen service organization by the senior services bureau
existing under the provisions of article five, chapter sixteen of
this code.
(4) The tax imposed by this section does not apply to any
active duty military personnel
stationed outside of West Virginia
for a period of at least nine months that acquires a motor
vehicle by sale within six months from the date the person
returns to this state.
(5) The tax imposed by this section does not apply to
motor
vehicles acquired by registered dealers of this state for resale
only.
(6) The tax imposed by this section does not apply to motor
vehicles acquired by this state or any political subdivision
thereof, or by any volunteer fire department or duly chartered
rescue or ambulance squad organized and incorporated under the
laws of the State of West Virginia as a nonprofit corporation for
protection of life or property.
(7) The tax imposed by this section does not apply to motor
vehicles acquired by an urban mass transit authority, as defined
in article twenty-seven, chapter eight of this code, or a
nonprofit entity exempt from federal and state income tax under
the Internal Revenue Code, for the purpose of providing mass
transportation to the public at large or designed for the
transportation of persons and being operated for the
transportation of persons in the public interest.
(g) Division of Motor Vehicles to collect.-- Notwithstanding
any provision of this article, article fifteen-a, and article ten
of this chapter to the contrary, the Division of Motor Vehicles
shall collect the tax imposed by this section: Provided, That the
tax created by this section is imposed upon the monthly payments
for the lease of any motor vehicle leased by a resident of West
Virginia, which tax is equal to five percent of the amount of the
monthly payment, applied to each payment, and continuing for the
entire term of the initial lease period. The tax shall be
remitted to the Division of Motor Vehicles on a monthly basis by
the lessor of the vehicle.
(h) Dedication of tax to highways. -- Notwithstanding any
provision of this article or article fifteen-a of this chapter to
the contrary, all taxes collected pursuant to this section, after
deducting the amount of any refunds lawfully paid, shall be
deposited in the "road fund" in the state treasurer's office, and
expended by the Commissioner of Highways for matching federal
funds allocated for West Virginia.
(i) Legislative rules; emergency rules. -- Notwithstanding
any provision of this article, article fifteen-a, and article ten
to the contrary, the Division of Motor Vehicles may promulgate
legislative rules and emergency rules explaining and implementing
this section, which rules shall be promulgated in accordance with
the provisions of article three, chapter twenty-nine-a of this
code. The authority to promulgate rules includes authority to amend or repeal those rules. If proposed legislative rules for
this section are filed in the State Register before the fifteenth
day of June, two thousand seven, those rules may be promulgated
as emergency legislative rules, as provided in article three of
said chapter twenty-nine-a.
ARTICLE 3.ORIGINAL AND RENEWAL REGISTRATION: ISSUANCE OF
CERTIFICATES OF TITLE
§17A-3-4. Application for certificate of title; fees;
prohibition of issuance of certificate of title
without compliance with §11-15-3c; exceptions.
(a) Certificates of registration of any vehicle or
registration plates for the vehicle, whether original issues or
duplicates, may not be issued or furnished by the Division of
Motor Vehicles or any other officer or agent charged with the
duty, unless the applicant already has received, or at the same
time makes application for and is granted, an official
certificate of title of the vehicle in either an electronic or
paper format. The application shall be upon a blank form to be
furnished by the Division of Motor Vehicles and shall contain a
full description of the vehicle, which description shall contain
a manufacturer's serial or identification number or other number
as determined by the commissioner and any distinguishing marks,
together with a statement of the applicant's title and of any
liens or encumbrances upon the vehicle, the names and addresses
of the holders of the liens and any other information as the Division of Motor Vehicles may require. The application shall be
signed and sworn to by the applicant. A duly certified copy of
the division's electronic record of a certificate of title is
admissible in any civil, criminal or administrative proceeding in
this state as evidence of ownership.
(b) A tax is imposed upon the privilege of effecting the
certification of title of each vehicle in the amount equal to
five percent of the value of the motor vehicle at the time of the
certification, to be assessed as follows:
(1) If the vehicle is new, the actual purchase price or
consideration to the purchaser of the vehicle is the value of the
vehicle. If the vehicle is a used or secondhand vehicle, the
present market value at time of transfer or purchase is the value
of the vehicle for the purposes of this section: Provided, That
so much of the purchase price or consideration as is represented
by the exchange of other vehicles on which the tax imposed by
this section has been paid by the purchaser shall be deducted
from the total actual price or consideration paid for the
vehicle, whether the vehicle be new or secondhand. If the
vehicle is acquired through gift or by any manner whatsoever,
unless specifically exempted in this section, the present market
value of the vehicle at the time of the gift or transfer is the
value of the vehicle for the purposes of this section.
(2) No certificate of title for any vehicle may be issued to
any applicant unless the applicant has paid to the Division of Motor Vehicles the tax imposed by this section which is five
percent of the true and actual value of the vehicle whether the
vehicle is acquired through purchase, by gift or by any other
manner whatsoever, except gifts between husband and wife or
between parents and children: Provided, That the husband or
wife, or the parents or children, previously have paid the tax on
the vehicles transferred to the State of West Virginia.
(3) The Division of Motor Vehicles may issue a certificate
of registration and title to an applicant if the applicant
provides sufficient proof to the Division of Motor Vehicles that
the applicant has paid the taxes and fees required by this
section to a motor vehicle dealership that has gone out of
business or has filed bankruptcy proceedings in the United States
bankruptcy court and the taxes and fees so required to be paid by
the applicant have not been sent to the division by the motor
vehicle dealership or have been impounded due to the bankruptcy
proceedings: Provided, That the applicant makes an affidavit of
the same and assigns all rights to claims for money the applicant
may have against the motor vehicle dealership to the Division of
Motor Vehicles.
(4) The Division of Motor Vehicles shall issue a certificate
of registration and title to an applicant without payment of the
tax imposed by this section if the applicant is a corporation,
partnership or limited liability company transferring the vehicle
to another corporation, partnership or limited liability company when the entities involved in the transfer are members of the
same controlled group and the transferring entity has previously
paid the tax on the vehicle transferred. For the purposes of
this section, control means ownership, directly or indirectly, of
stock or equity interests possessing fifty percent or more of the
total combined voting power of all classes of the stock of a
corporation or equity interests of a partnership or limited
liability company entitled to vote or ownership, directly or
indirectly, of stock or equity interests possessing fifty percent
or more of the value of the corporation, partnership or limited
liability company.
(5) The tax imposed by this section does not apply to
vehicles to be registered as Class H vehicles or Class M
vehicles, as defined in section one, article ten of this chapter,
which are used or to be used in interstate commerce. Nor does
the tax imposed by this section apply to the titling of Class B
vehicles registered at a gross weight of fifty-five thousand
pounds or more, or to the titling of Class C semitrailers, full
trailers, pole trailers and converter gear: Provided, That if an
owner of a vehicle has previously titled the vehicle at a
declared gross weight of fifty-five thousand pounds or more and
the title was issued without the payment of the tax imposed by
this section, then before the owner may obtain registration for
the vehicle at a gross weight less than fifty-five thousand
pounds, the owner shall surrender to the commissioner the exempted registration, the exempted certificate of title and pay
the tax imposed by this section based upon the current market
value of the vehicle: Provided, however, That notwithstanding
the provisions of section nine, article fifteen, chapter eleven
of this code, the exemption from tax under this section for Class
B vehicles in excess of fifty-five thousand pounds and Class C
semitrailers, full trailers, pole trailers and converter gear
does not subject the sale or purchase of the vehicles to the
consumers sales and service tax.
(6) The tax imposed by this section does not apply to
titling of vehicles leased by residents of West Virginia. A tax
is imposed upon the monthly payments for the lease of any motor
vehicle leased by a resident of West Virginia, which tax is equal
to five percent of the amount of the monthly payment, applied to
each payment, and continuing for the entire term of the initial
lease period. The tax shall be remitted to the Division of Motor
Vehicles on a monthly basis by the lessor of the vehicle.
(7) The tax imposed by this section does not apply to
titling of vehicles by a registered dealer of this state for
resale only, nor does the tax imposed by this section apply to
titling of vehicles by this state or any political subdivision
thereof, or by any volunteer fire department or duly chartered
rescue or ambulance squad organized and incorporated under the
laws of the State of West Virginia as a nonprofit corporation for
protection of life or property. The total amount of revenue collected by reason of this tax shall be paid into the state road
fund and expended by the Commissioner of Highways for matching
federal funds allocated for West Virginia. In addition to the
tax, there is a charge of five dollars for each original
certificate of title or duplicate certificate of title so issued:
Provided, That this state or any political subdivision of this
state or any volunteer fire department or duly chartered rescue
squad is exempt from payment of the charge.
(8) The certificate is good for the life of the vehicle, so
long as the vehicle is owned or held by the original holder of
the certificate and need not be renewed annually, or any other
time, except as provided in this section.
(9) If, by will or direct inheritance, a person becomes the
owner of a motor vehicle and the tax imposed by this section
previously has been paid to the Division of Motor Vehicles on
that vehicle, he or she is not required to pay the tax.
(10) A person who has paid the tax imposed by this section
is not required to pay the tax a second time for the same motor
vehicle, but is required to pay a charge of five dollars for the
certificate of retitle of that motor vehicle, except that the tax
shall be paid by the person when the title to the vehicle has
been transferred either in this or another state from the person
to another person and transferred back to the person.
(11) The tax imposed by this section does not apply to any
passenger vehicle offered for rent in the normal course of business by a daily passenger rental car business as licensed
under the provisions of article six-d of this chapter. For
purposes of this section, a daily passenger car means a Class A
motor vehicle having a gross weight of eight thousand pounds or
less and is registered in this state or any other state. In lieu
of the tax imposed by this section, there is hereby imposed a tax
of not less than one dollar nor more than one dollar and fifty
cents for each day or part of the rental period. The
commissioner shall propose an emergency rule in accordance with
the provisions of article three, chapter twenty-nine-a of this
code to establish this tax.
(12) The tax imposed by this article does not apply to the
titling of any vehicle purchased by a senior citizen service
organization which is exempt from the payment of income taxes
under the United States Internal Revenue Code, Title 26 U.S.C.
§501(c)(3) and which is recognized to be a bona fide senior
citizen service organization by the senior services bureau
existing under the provisions of article five, chapter sixteen of
this code.
(13) The tax imposed by this section does not apply to the
titling of any vehicle operated by an urban mass transit
authority as defined in article twenty-seven, chapter eight of
this code or a nonprofit entity exempt from federal and state
income tax under the Internal Revenue Code and whose purpose is
to provide mass transportation to the public at large designed for the transportation of persons and being operated for the
transportation of persons in the public interest.
(c) Notwithstanding any provisions of this code to the
contrary, the owners of trailers, semitrailers, recreational
vehicles and other vehicles not subject to the certificate of
title tax prior to the enactment of this chapter are subject to
the privilege tax imposed by this section: Provided, That the
certification of title of any recreational vehicle owned by the
applicant on the thirtieth day of June, one thousand nine hundred
eighty-nine, is not subject to the tax imposed by this section:
Provided, however, That mobile homes, manufactured homes, modular
homes and similar nonmotive propelled vehicles, except
recreational vehicles and house trailers, susceptible of being
moved upon the highways but primarily designed for habitation and
occupancy, rather than for transporting persons or property, or
any vehicle operated on a nonprofit basis and used exclusively
for the transportation of mentally retarded or physically
handicapped children when the application for certificate of
registration for the vehicle is accompanied by an affidavit
stating that the vehicle will be operated on a nonprofit basis
and used exclusively for the transportation of mentally retarded
and physically handicapped children, are not subject to the tax
imposed by this section, but are taxable under the provisions of
articles fifteen and fifteen-a, chapter eleven of this code.
(d) Beginning on the first of July, two thousand and seven, the tax imposed under this article is abolished and after that
date no
certificate of title for any motor vehicle may be issued
to any applicant unless the applicant
provides sufficient proof
to the Division of Motor Vehicles that the applicant has paid the
fees required by this section
and the tax imposed by §11-15-3c.
(d)(e) Any person making any affidavit required under any
provision of this section who knowingly swears falsely, or any
person who counsels, advises, aids or abets another in the
commission of false swearing, or any person, while acting as an
agent of the Division of Motor Vehicles, issues a vehicle
registration without first collecting the fees and taxes or fails
to perform any other duty required by this chapter to be
performed before a vehicle registration is issued is, on the
first offense, guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than five hundred dollars or be
confined in jail for a period not to exceed six months or, in the
discretion of the court, both fined and confined. For a second
or any subsequent conviction within five years, that person is
guilty of a felony and, upon conviction thereof, shall be fined
not more than five thousand dollars or be imprisoned in a state
correctional facility for not less than one year nor more than
five years or, in the discretion of the court, both fined and
imprisoned.
(e)(f) Notwithstanding any other provisions of this section,
any person in the military stationed outside West Virginia or his or her dependents who possess a motor vehicle with valid
registration are exempt from the provisions of this article for
a period of nine months from the date the person returns to this
state or the date his or her dependent returns to this state,
whichever is later.
(f)(g) No person may transfer, purchase or sell a
factory-built home without a certificate of title issued by the
commissioner in accordance with the provisions of this article:
(1) Any person who fails to provide a certificate of title
upon the transfer, purchase or sale of a factory-built home is
guilty of a misdemeanor and, upon conviction thereof, shall for
the first offense be fined not less than one hundred dollars nor
more than one thousand dollars, or be confined in jail for not
more than one year, or both fined and confined. For each
subsequent offense, the fine may be increased to not more than
two thousand dollars, with confinement in jail not more than one
year, or both fined and confined.
(2) Failure of the seller to transfer a certificate of title
upon sale or transfer of the factory-built home gives rise to a
cause of action, upon prosecution thereof, and allows for the
recovery of damages, costs and reasonable attorney fees.
(3) This subsection does not apply to a mobile or
manufactured home for which a certificate of title has been
canceled pursuant to section twelve-b of this article.
(g)(h) Notwithstanding any other provision to the contrary, whenever reference is made to the application for or issuance of
any title or the recordation or release of any lien, it includes
the application, transmission, recordation, transfer of ownership
and storage of information in an electronic format.
(h)(i) Notwithstanding any other provision contained in this
section, nothing herein shall be considered to include modular
homes as defined in subsection (i), section two, article fifteen,
chapter thirty-seven of this code and built to the State Building
Code as established by legislative rules promulgated by the State
Fire Commission pursuant to section five-b, article three,
chapter twenty-nine of this code.
NOTE: The purpose of this bill is to abolish the privilege
tax and impose a five percent tax on the sale and use of motor
vehicles.
§11-15-3c is new; therefore strike-throughs and underscoring
have been omitted. §17A-3-4
has been amended and reenacted;
therefore strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates new
language that would be added.