WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
REGULAR SESSION, 2003
FIFTY-SIXTH DAY
____________
Charleston, W. Va., Tuesday, March 4, 2003
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Kylie Gobel of South Charleston, West Virginia, and a student
at Calvary Baptist Academy, Teays Valley, West Virginia, proceeded
in the singing of "God Bless America".
Pending the reading of the Journal of Monday, March 3, 2003,
On motion of Senator Dempsey, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 283, Continuing public service
commission.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 284, Continuing division of purchasing
within department of administration.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 470, Continuing board of manufactured
housing construction and safety.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 26, Requesting Division of
Highways name bridge from Pomeroy, Ohio, to Mason "Bridge of
Honor".
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 2414--A Bill to amend and
reenact sections ten and thirteen-b, article twenty-three, chapter
nineteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, all relating to horse and dog racing
generally; increasing from ten to thirteen the number of racing
performances during a calendar day by an association or licensee
before the payment of both the daily license tax and the
alternative tax imposed by section ten; and increasing the amount
of restricted thoroughbred horse races in certain circumstances.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 37--Requesting the Joint Committee on Government and Finance to conduct a study of planning
for the safe evacuation from the state capitol complex of people
with disabilities, including development of measures to provide
alternative warning systems and improving alert and notification
plans.
Whereas, Natural disasters, biological and chemical threats or
accidents and other emergencies require thoughtful planning and
appropriate warning systems to ensure that all people are able to
safely evacuate the state capitol complex without loss of life or
injury; and
Whereas, A recent survey of more than one thousand people
found that fifty-eight percent of people with disabilities do not
know whom to contact about emergency plans for their community in
a disaster and fifty percent of those working full or part time say
that no plans have been developed for an evacuation; and
Whereas, There is a need to improve emergency preparedness for
people with disabilities to ensure that citizens, visitors and
employees with disabilities in the capitol complex have an
effective means of warning of an emergency, assistance in
evacuating and identification of safe egress in an emergency;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Joint Committee on
Government and Finance to conduct a study of planning for the safe
evacuation from the state capitol complex of people with
disabilities, including the development of measures to provide alternative warning systems and improving alert and notification
plans; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2004, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 49--Requesting the Joint
Committee on Government and Finance study the costs and benefits
associated with West Virginia's deer population.
Whereas, The State's deer population is an important economic
resource of the State; and
Whereas, The State benefits economically from the hunting of
deer and associated activities; and
Whereas, Residents and property owners in the State suffer
financial losses due to property damage by deer, including crop
damage and damage to vehicles; and
Whereas, This may affect insurance rates for all West Virginians; and
Whereas, With comprehensive, detailed information concerning
the costs and the benefits associated with the State deer
population, better decisions affecting the deer population may be
made by the Legislature and executive agencies; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to comprehensively study the costs and benefits
associated with the State's deer population; and, be it
Further Resolved, That the study should seek to identify and
quantify not only the benefits the State receives from its deer
population, but also the added costs and responsibilities to the
State due to the presence of deer and how herd sizes may positively
or negatively impact the identified costs and benefits; and, be it
Further Resolved, That the Joint Committee on Government and
Finance compile the results of the study into a report to be made
available to the Legislature, executive agencies and the public;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2004, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 55--Requesting the West
Virginia Division of Highways to rename Commerce Street on West
Virginia State Rt. 2 "Heroes Highway".
Whereas, A portion of West Virginia State Rt. 2 lies within
the city limits of the City of Wellsburg; and
Whereas, The West Virginia Legislature, the Wellsburg City
Council and city administration fully support the veterans and many
heroes who have fought and continue to fight for our country; and
Whereas, The West Virginia Legislature and the Wellsburg City
Council fully support the ceremonial renaming of Commerce Street to
"Heroes Highway" in honor of our veterans and war heroes;
therefore, be it
Resolved by the Legislature of West Virginia:
That the members of the Legislature request the West Virginia
Division of Highways to rename Commerce Street on West Virginia
State Rt. 2 "Heroes Highway"; and, be it
Further Resolved, That the Clerk of the House is hereby
directed to forward a copy of this resolution to the Commissioner
of the Division of Highways and to the City Council of the City of
Wellsburg.
Referred to the Committee on Transportation.
The Senate proceeded to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2001, Restricting public
access to military discharge forms recorded in the county clerks
office.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2001) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Eng. Com. Sub. for House Bill No. 2056, Creating the Great
Family Literacy Act and establishing a voluntary checkoff on income
tax returns to help fund the program.
And has amended same.
And,
Eng. House Bill No. 2224, Relating to higher education
reorganization.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended; but under the original double committee
references first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the bills (Eng. Com. Sub. for H. B. No. 2056 and Eng. H.
B. No. 2224) contained in the preceding report from the Committee
on Education were each taken up for immediate consideration, read
a first time, ordered to second reading and, under the original
double committee references, were then referred to the Committee on
Finance, with amendments from the Committee on Education pending.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 2110, Declaring that lawful design,
marketing, manufacture or sale of firearms or ammunition to the
public is not an unreasonably dangerous activity.
Eng. Com. Sub. for House Bill No. 2406, Immunity from civil
liability for members of a national ski patrol system.
Eng. House Bill No. 3016, Allowing the department of health
and human resources to retain adult protective service records for thirty years.
And,
Eng. House Bill No. 3018, Changing the amount of time that the
department of health and human resources must retain child
protective services' records.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bills (Eng. H. B. No. 2110, Eng. Com. Sub. for H. B.
No. 2406, Eng. H. B. No. 3016 and Eng. H. B. No. 3018) contained in
the preceding report from the Committee on the Judiciary were each
taken up for immediate consideration, read a first time and ordered
to second reading.
Senator Ross, from the Committee on Transportation, submitted
the following report, which was received:
Your Committee on Transportation has had under consideration
Eng. Com. Sub. for House Bill No. 2190, Permitting certain
farm vehicles to use the highways between sunset and sunrise.
Now on second reading, having been read a first time and
referred to the Committee on Transportation on March 3, 2003;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Mike Ross,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2625, Authorizing the
department of health and human resources to promulgate legislative
rules.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2625) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Ross, from the Committee on Transportation, submitted
the following report, which was received:
Your Committee on Transportation has had under consideration
Eng. House Bill No. 2684, Authorizing the commissioner of
department of highways to set certain speed limits.
And reports the same back with the recommendation that it do
pass; but with the further recommendation that it first be referred
to the Committee on Finance.
Respectfully submitted,
Mike Ross,
Chair.
On motion of Senator Ross, the bill (Eng. H. B. No. 2684)
contained in the foregoing report from the Committee on
Transportation was then referred to the Committee on Finance.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2799, Relating to the West
Virginia state police and the reemployment of recently retired
troopers.
And,
Eng. House Bill No. 3095, Authorizing the tax commissioner to
disclose to the treasurer certain information that would facilitate
locating the owners of uncashed and unclaimed income tax refund
checks.
And reports the same back with the recommendation that they
each do pass; but under the original double committee references
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, Engrossed Committee Substitute for House Bill No. 2799
contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first
time, ordered to second reading and, under the original double
committee reference, was then referred to the Committee on Finance.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of Engrossed House Bill No. 3095
contained in the foregoing report from the Committee on the
Judiciary.
At the request of Senator Kessler, unanimous consent being
granted, Engrossed House Bill No. 3095 contained in the preceding
report from the Committee on the Judiciary was then taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Eng. House Bill No. 2961, Limiting idling of school bus
engines for more than five minutes except for certain reasons.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Robert H. Plymale,
Chair.
Senator Ross, from the Committee on Transportation, submitted
the following report, which was received:
Your Committee on Transportation has had under consideration
Eng. House Bill No. 3104, Providing for commercial work orders
for vehicle and equipment repair, establishing criteria for
commercial vehicle and equipment repair vendors and requiring a
cost effectiveness analysis for issuing commercial work orders.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Mike Ross,
Chair.
At the request of Senator Ross, unanimous consent being
granted, the bill (Eng. H. B. No. 3104) contained in the preceding
report from the Committee on Transportation was taken up for
immediate consideration, read a first time and ordered to second
reading.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 50, Requesting Joint
Committee on Government and Finance study hospital overtime
policies.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
House Concurrent Resolution No. 22, Naming I-64 from the
Virginia state line to the Kentucky state line the "Purple Heart
Trail".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 28, Renaming the Barrackville
Bridge on Route 21, in Marion County, the "Oce Smith Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 29, Renaming the Mannington
Bridge in Marion County, on Route 11, the "Regillo Brothers
Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 31, Dedicating the Hough
Street Bridge in Mannington, Marion County, in memory of Sammie W.
Hunter.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 32, Dedicating the Watson
Veterans Bridge over the West Fork River in Watson, Marion County,
to the "Senior Citizens of Watson".
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was rereferred to
the Committee on Transportation.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the sixth order of business.
Petitions
Senator Chafin presented a petition from Tim Hunt and numerous
West Virginia residents, requesting the Legislature restore,
preserve and create family-supporting jobs in the southern
coalfields of the state.
Referred to the Committee on Economic Development.
At the request of Senator Plymale, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 456, Relating to construction financing for surface transportation improvements;
federal grants.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Chafin, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar.
The Senate proceeded to the ninth order of business. Senate
Bill No. 658, Making supplementary appropriation to department of
health and human resources, division of human services, James
"Tiger" Morton Catastrophic Illness Fund.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Senate Bill No. 659, Making supplementary appropriation to
state board of examiners for licensed practical nurses.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Senate Bill No. 660, Supplementing, amending, reducing and
increasing items from state road fund to department of
transportation, division of highways.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Eng. Com. Sub. for House Bill No. 2094, Regulating the release
of fish, water animals and other aquatic organisms into the waters
of this state.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2301, Providing funding for
necessary care of animals seized pursuant to allegations of
neglect.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2500, Clarifying the
authority of the courts to continue protective orders during
certain proceedings.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 5. DIVORCE.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court
shall enjoin the offending party from molesting or interfering with
the other or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or
visitation rights of the other. The order may permanently enjoin
the offending party from entering the school, business or place of
employment of the other for the purpose of molesting or harassing
the other; or from contacting the other, in person or by telephone,
for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from
abuse may grant relief pursuant to the provisions of article
twenty-seven of this chapter.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
Part IV. Coordination with Pending Court Actions.
§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file
for and be granted relief provided by this article until an order
is entered in the divorce action pursuant to part 5-501, et seq.
(b) If a person who has been granted relief under this article
should subsequently become a party to an action for divorce,
separate maintenance or annulment, such person shall remain
entitled to the relief provided under this article, including the
right to file for and obtain any further relief, so long as no
temporary order has been entered in the action for divorce,
annulment and separate maintenance, pursuant to part 5-501, et seq.
(c) Except as provided in section 5-509 of this chapter and
section 27-402 of this article for a petition and a temporary
emergency protective order, no person who is a party to a pending
action for divorce, separate maintenance or annulment in which an
order has been entered pursuant to part 5-501, et seq., of this
chapter shall be entitled to file for or obtain relief against
another party to that action under this article until after the
entry of a final order which grants or dismisses the action for
divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section
27-505, any order, issued pursuant to this section article where a
subsequent action is filed seeking a divorce, an annulment or
separate maintenance, the allocation of custodial responsibility or
a habeas corpus action to establish custody, the establishment of
paternity, the establishment or enforcement of child support or
other relief under the provisions of this chapter, shall remain in
full force and effect by operation of this statute until a
temporary or final order is entered pursuant to part 5-501, et
seq,. of this chapter, or a final order is entered granting or
dismissing the action for divorce, annulment or separate
maintenance.
The bill (Eng. Com. Sub. for H. B. No. 2500), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2511, Authorizing the
issuance of a special motor vehicle license plate for "Nemesis
Shrine" members.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page three, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section fourteen, article three, chapter seventeen-a of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-14. Registration plates generally; description of plates;
issuance of special numbers and plates; registration fees;
special application fees; exemptions; commissioner to
promulgate forms; suspension and nonrenewal.
(a) The division upon registering a vehicle shall issue to the
owner one registration plate for a motorcycle, trailer, semitrailer
or other motor vehicle.
(b) Registration plates issued by the division shall meet the
following requirements:
(1) Every registration plate shall be of reflectorized
material and have displayed upon it the registration number
assigned to the vehicle for which it is issued; the name of this
state, which may be abbreviated; and the year number for which it
is issued or the date of expiration of the plate.
(2) Every registration plate and the required letters and
numerals on the plate shall be of sufficient size to be plainly
readable from a distance of one hundred feet during daylight:
Provided, That the requirements of this subdivision shall not apply
to the year number for which the plate is issued or the date of
expiration.
(3) Registration numbering for registration plates shall begin
with number two.
(c) The division may not issue, permit to be issued or
distribute any special registration plates except as follows:
(1) The governor shall be issued two registration plates, on
one of which shall be imprinted the numeral one and on the other
the word one.
(2) State officials and judges may be issued special
registration plates as follows:
(A) Upon appropriate application, the division shall issue to
the secretary of state, state superintendent of schools, auditor,
treasurer, commissioner of agriculture and the attorney general,
the members of both houses of the Legislature, including the
elected officials of both houses of the Legislature, the justices
of the supreme court of appeals of West Virginia, the
representatives and senators of the state in the congress of the
United States, the judges of the West Virginia circuit courts,
active and retired on senior status, the judges of the United
States district courts for the state of West Virginia and the
judges of the United States court of appeals for the fourth
circuit, if any of the judges are residents of West Virginia, a
special registration plate for a Class A motor vehicle and a
special registration plate for a Class G motorcycle owned by the
official or his or her spouse: Provided, That the division may
issue a Class A special registration plate for each vehicle titled
to the official and a Class G special registration plate for each
motorcycle titled to the official.
(B) Each plate issued pursuant to this subdivision shall bear
any combination of letters and numbers not to exceed an amount
determined by the commissioner and a designation of the office. Each plate shall supersede the regular numbered plate assigned to
the official or his or her spouse during the official's term of
office and while the motor vehicle is owned by the official or his
or her spouse.
(C) The division shall charge an annual fee of fifteen dollars
for every registration plate issued pursuant to this subdivision,
which is in addition to all other fees required by this chapter.
(3) The division may issue members of the national guard
forces special registration plates as follows:
(A) Upon receipt of an application on a form prescribed by the
division and receipt of written evidence from the chief executive
officer of the army national guard or air national guard, as
appropriate, or the commanding officer of any United States armed
forces reserve unit that the applicant is a member thereof, the
division shall issue to any member of the national guard of this
state or a member of any reserve unit of the United States armed
forces a special registration plate designed by the commissioner
for any number of Class A motor vehicles owned by the member. Upon
presentation of written evidence of retirement status, retired
members of this state's army or air national guard, or retired
members of any reserve unit of the United States armed forces, are
eligible to purchase the special registration plate issued pursuant
to this subdivision.
(B) The division shall charge an initial application fee of
ten dollars for each special registration plate issued pursuant to
this subdivision, which is in addition to all other fees required by this chapter. All initial application fees collected by the
division shall be deposited into a special revolving fund to be
used in the administration of this section.
(C) A surviving spouse may continue to use his or her deceased
spouse's national guard forces license plate until the surviving
spouse dies, remarries or does not renew the license plate.
(4) Specially arranged registration plates may be issued as
follows:
(A) Upon appropriate application, any owner of a motor vehicle
subject to Class A registration, or a motorcycle subject to Class
G registration, as defined by this article, may request that the
division issue a registration plate bearing specially arranged
letters or numbers with the maximum number of letters or numbers to
be determined by the commissioner. The division shall attempt to
comply with the request wherever possible.
(B) The commissioner shall propose rules for legislative
approval in accordance with the provisions of chapter twenty-nine-a
of this code regarding the orderly distribution of the plates:
Provided, That for purposes of this subdivision, the registration
plates requested and issued shall include all plates bearing the
numbers two through two thousand.
(C) An annual fee of fifteen dollars shall be charged for each
special registration plate issued pursuant to this subdivision,
which is in addition to all other fees required by this chapter.
(5) The division may issue honorably discharged veterans
special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any honorably discharged veteran of any branch of the armed
services of the United States a special registration plate for any
number of vehicles titled in the name of the qualified applicant
with an insignia designed by the commissioner of the division of
motor vehicles.
(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section: Provided, That nothing in this
section may be construed to exempt any veteran from any other
provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's honorably discharged veterans license plate until the
surviving spouse dies, remarries or does not renew the license
plate.
(6) The division may issue disabled veterans special
registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any disabled veteran who is exempt from the payment of registration
fees under the provisions of this chapter a registration plate for
a vehicle titled in the name of the qualified applicant which bears
the letters "DV" in red and also the regular identification numerals in red.
(B) A surviving spouse may continue to use his or her deceased
spouse's disabled veterans license plate until the surviving spouse
dies, remarries or does not renew the license plate.
(C) A qualified disabled veteran may obtain a second disabled
veteran license plate as described in this section for use on a
passenger vehicle titled in the name of the qualified applicant.
The division shall charge a one-time fee of ten dollars to be
deposited into a special revolving fund to be used in the
administration of this section, in addition to all other fees
required by this chapter, for the second plate.
(7) The division may issue recipients of the distinguished
purple heart medal special registration plates as follows:
(A) Upon appropriate application, there shall be issued to any
armed service person holding the distinguished purple heart medal
for persons wounded in combat a registration plate for a vehicle
titled in the name of the qualified applicant bearing letters or
numbers. The registration plate shall be designed by the
commissioner of motor vehicles and shall denote that those
individuals who are granted this special registration plate are
recipients of the purple heart. All letterings shall be in purple
where practical.
(B) Registration plates issued pursuant to this subdivision
are exempt from all registration fees otherwise required by the
provisions of this chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's purple heart medal license plate until the surviving
spouse dies, remarries or does not renew the license plate.
(D) A recipient of the purple heart medal may obtain a second
purple heart medal license plate as described in this section for
use on a passenger vehicle titled in the name of the qualified
applicant. The division shall charge a one-time fee of ten dollars
to be deposited into a special revolving fund to be used in the
administration of this section, in addition to all other fees
required by this chapter, for the second plate.
(8) The division may issue survivors of the attack on Pearl
Harbor special registration plates as follows:
(A) Upon appropriate application, the owner of a motor vehicle
who was enlisted in any branch of the armed services that
participated in and survived the attack on Pearl Harbor on the
seventh day of December, one thousand nine hundred forty-one, the
division shall issue a special registration plate for a vehicle
titled in the name of the qualified applicant. The registration
plate shall be designed by the commissioner of motor vehicles.
(B) Registration plates issued pursuant to this subdivision
are exempt from the payment of all registration fees otherwise
required by the provisions of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's survivors of the attack on Pearl Harbor license plate
until the surviving spouse dies, remarries or does not renew the
license plate.
(D) A survivor of the attack on Pearl Harbor may obtain a second survivors of the attack on Pearl Harbor license plate as
described in this section for use on a passenger vehicle titled in
the name of the qualified applicant. The division shall charge a
one-time fee of ten dollars to be deposited into a special
revolving fund to be used in the administration of this section, in
addition to all other fees required by this chapter, for the second
plate.
(9) The division may issue special registration plates to
nonprofit charitable and educational organizations authorized under
prior enactment of this subdivision as follows:
(A) Approved nonprofit charitable and educational
organizations previously authorized under the prior enactment of
this subdivision may accept and collect applications for special
registration plates from owners of Class A motor vehicles together
with a special annual fee of fifteen dollars, which is in addition
to all other fees required by this chapter. The applications and
fees shall be submitted to the division of motor vehicles with the
request that the division issue a registration plate bearing a
combination of letters or numbers with the organizations' logo or
emblem, with the maximum number of letters or numbers to be
determined by the commissioner.
(B) The commissioner shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code regarding the procedures for and
approval of special registration plates issued pursuant to this
subdivision.
(C) The commissioner shall set an appropriate fee to defray
the administrative costs associated with designing and
manufacturing special registration plates for a nonprofit
charitable or educational organization. The nonprofit charitable
or educational organization shall collect this fee and forward it
to the division for deposit in a special revolving fund to pay the
administrative costs. The nonprofit charitable or educational
organization may also collect a fee for marketing the special
registration plates.
(D) The commissioner may not approve or authorize any
additional nonprofit charitable and educational organizations to
design or market special registration plates.
(10) The division may issue specified emergency or volunteer
registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of the
state of West Virginia and who is a certified paramedic or
emergency medical technician, a member of a paid fire department,
a member of the state fire commission, the state fire marshal, the
state fire marshal's assistants, the state fire administrator and
voluntary rescue squad members may apply for a special license
plate for any number of Class A vehicles titled in the name of the
qualified applicant which bears the insignia of the profession,
group or commission. Any insignia shall be designed by the
commissioner. License plates issued pursuant to this subdivision
shall bear the requested insignia in addition to the registration
number issued to the applicant pursuant to the provisions of this article.
(B) Each application submitted pursuant to this subdivision
shall be accompanied by an affidavit signed by the fire chief or
department head of the applicant stating that the applicant is
justified in having a registration with the requested insignia;
proof of compliance with all laws of this state regarding
registration and licensure of motor vehicles; and payment of all
required fees.
(C) Each application submitted pursuant to this subdivision
shall be accompanied by payment of a special initial application
fee of ten dollars, which is in addition to any other registration
or license fee required by this chapter. All special fees shall be
collected by the division and deposited into a special revolving
fund to be used for the purpose of compensating the division of
motor vehicles for additional costs and services required in the
issuing of the special registration and for the administration of
this section.
(11) The division may issue specified certified firefighter
registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of the
state of West Virginia and who is a certified firefighter may apply
for a special license plate which bears the insignia of the
profession, for any number of Class A vehicles titled in the name
of the qualified applicant. Any insignia shall be designed by the
commissioner. License plates issued pursuant to this subdivision
shall bear the requested insignia pursuant to the provisions of this article. Upon presentation of written evidence of
certification as a certified firefighter, certified firefighters
are eligible to purchase the special registration plate, issued
pursuant to this subdivision.
(B) Each year an application submitted pursuant to this
subdivision shall be accompanied by an affidavit signed by the West
Virginia state fire commission or a copy of the applicant's
certification as a certified firefighter, with certification
number, stating that the applicant is justified in having a
registration with the requested insignia; proof of compliance with
all laws of this state regarding registration and licensure of
motor vehicles; and payment of all required fees. The firefighter
certification department, section or division of the West Virginia
university fire service extension shall notify the commissioner in
writing immediately when a firefighter loses his or her
certification. If a firefighter loses his or her certification,
the commissioner may not issue him or her a license plate under
this subsection.
(C) Each year an application submitted pursuant to this
subdivision shall be accompanied by payment of a special initial
application fee of ten dollars, which is in addition to any other
registration or license fee required by this chapter. All special
fees shall be collected by the division and deposited into a
special revolving fund to be used for the purpose of compensating
the division of motor vehicles for additional costs and services
required in the issuing of the special registration and for the administration of this section.
(12) The division may issue special scenic registration plates
as follows:
(A) Upon appropriate application, the commissioner shall issue
a special registration plate displaying a scenic design of West
Virginia which displays the words "Wild Wonderful" as a slogan.
(B) The division shall charge a special one-time initial
application fee of ten dollars in addition to all other fees
required by this chapter. All initial application fees collected
by the division shall be deposited into a special revolving fund to
be used in the administration of this chapter.
(13) The division may issue honorably discharged marine corps
league members special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any honorably discharged marine corps league member a special
registration plate for any number of vehicles titled in the name of
the qualified applicant with an insignia designed by the
commissioner of the division of motor vehicles.
(B) The division may charge a special one-time initial
application fee of ten dollars in addition to all other fees
required by this chapter. This special fee is to compensate the
division of motor vehicles for additional costs and services
required in the issuing of the special registration and shall be
collected by the division and deposited in a special revolving fund
to be used for the administration of this section: Provided, That
nothing in this section may be construed to exempt any veteran from any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's honorably discharged marine corps league license plate
until the surviving spouse dies, remarries or does not renew the
license plate.
(14) The division may issue military organization registration
plates as follows:
(A) The division may issue a special registration plate for
the members of any military organization chartered by the United
States congress upon receipt of a guarantee from organization of a
minimum of one hundred applicants. The insignia on the plate shall
be designed by the commissioner.
(B) Upon appropriate application, the division may issue
members of the chartered organization in good standing, as
determined by the governing body of the chartered organization, a
special registration plate for any number of vehicles titled in the
name of the qualified applicant.
(C) The division shall charge a special one-time initial
application fee of ten dollars for each special license plate in
addition to all other fees required by this chapter. All initial
application fees collected by the division shall be deposited into
a special revolving fund to be used in the administration of this
chapter: Provided, That nothing in this section may be construed
to exempt any veteran from any other provision of this chapter.
(D) A surviving spouse may continue to use his or her deceased
spouse's military organization registration plate until the surviving spouse dies, remarries or does not renew the special
military organization registration plate.
(15) The division may issue special nongame wildlife
registration plates and special wildlife registration plates as
follows:
(A) Upon appropriate application, the division shall issue a
special registration plate displaying a species of West Virginia
wildlife which shall display a species of wildlife native to West
Virginia as prescribed and designated by the commissioner and the
director of the division of natural resources.
(B) The division shall charge an annual fee of fifteen dollars
for each special nongame wildlife registration plate and each
special wildlife registration plate in addition to all other fees
required by this chapter. All annual fees collected for nongame
wildlife registration plates and wildlife registration plates shall
be deposited in a special revenue account designated the nongame
wildlife fund and credited to the division of natural resources.
(C) The division shall charge a special one-time initial
application fee of ten dollars in addition to all other fees
required by this chapter. All initial application fees collected
by the division shall be deposited in a special revolving fund to
be used in the administration of this chapter.
(16) The division may issue members of the silver haired
legislature special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any person who is a duly qualified member of the silver haired legislature a specialized registration plate which bears
recognition of the applicant as a member of the silver haired
legislature.
(B) A qualified member of the silver haired legislature may
obtain one registration plate described in this subdivision for use
on a passenger vehicle titled in the name of the qualified
applicant. The division shall charge an annual fee of fifteen
dollars, in addition to all other fees required by this chapter,
for the plate. All annual fees collected by the division shall be
deposited in a special revolving fund to be used in the
administration of this chapter.
(17) Upon appropriate application, the commissioner shall
issue to a classic motor vehicle or classic motorcycle as defined
in section three-a, article ten of this chapter, a special
registration plate designed by the commissioner. An annual fee of
fifteen dollars, in addition to all other fees required by this
chapter, shall be charged for each classic registration plate.
(18) Honorably discharged veterans may be issued special
registration plates for motorcycles subject to Class G registration
as follows:
(A) Upon appropriate application, there shall be issued to any
honorably discharged veteran of any branch of the armed services of
the United States a special registration plate for any number of
motorcycles subject to Class G registration titled in the name of
the qualified applicant with an insignia designed by the
commissioner of the division of motor vehicles.
(B) A special initial application fee of ten dollars shall be
charged in addition to all other fees required by law. This
special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section: Provided, That nothing in this
section may be construed to exempt any veteran from any other
provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's honorably discharged veterans license plate until the
surviving spouse dies, remarries or does not renew the license
plate.
(19) Racing theme special registration plates:
(A) The division may issue a series of special registration
plates displaying national association for stock car auto racing
themes.
(B) An annual fee of twenty-five dollars shall be charged for
each special racing theme registration plate in addition to all
other fees required by this chapter. All annual fees collected for
each special racing theme registration plate shall be deposited
into a special revolving fund to be used in the administration of
this chapter.
(C) A special application fee of ten dollars shall be charged
at the time of initial application as well as upon application for
any duplicate or replacement registration plate, in addition to all other fees required by this chapter. All application fees shall be
deposited into a special revolving fund to be used in the
administration of this chapter.
(20) The division may issue recipients of the navy cross,
distinguished service cross, distinguished flying cross, air force
cross, bronze star or silver star special registration plates as
follows:
(A) Upon appropriate application, the division shall issue to
any recipient of the navy cross, distinguished service cross,
distinguished flying cross, air force cross, silver star or bronze
star, a registration plate for any number of vehicles titled in the
name of the qualified applicant bearing letters or numbers. A
separate registration plate shall be designed by the commissioner
of motor vehicles for each award that denotes that those
individuals who are granted this special registration plate are
recipients of the navy cross, distinguished service cross,
distinguished flying cross, air force cross, silver star or bronze
star, as applicable.
(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section: Provided, That nothing in this
section exempts the applicant for a special registration plate under this subdivision from any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's navy cross, distinguished service cross, distinguished
flying cross, air force cross, silver star or bronze star special
registration plate until the surviving spouse dies, remarries or
does not renew the special registration plate.
(21) The division may issue honorably discharged veterans
special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any honorably discharged veteran of any branch of the armed
services of the United States with verifiable service during world
war II, the Korean war, the Vietnam war, the Persian gulf war or
the war against terrorism, a special registration plate for any
number of vehicles titled in the name of the qualified applicant
with an insignia designed by the commissioner denoting service in
the applicable conflict.
(B) The division shall charge a special one-time initial
application fee of ten dollars in addition to all other fees
required by law. This special fee is to compensate the division of
motor vehicles for additional costs and services required in the
issuing of the special registration and shall be collected by the
division and deposited in a special revolving fund to be used for
the administration of this section: Provided, That nothing
contained in this section may be construed to exempt any veteran
from any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's honorably discharged veterans registration plate until the
surviving spouse dies, remarries or does not renew the special
registration plate.
(22) The division may issue special volunteer firefighter
registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of West
Virginia and who is a volunteer fireman or woman firefighter may
apply for a special license plate for one any Class A vehicle
titled in the name of the qualified applicant which bears the
insignia of the profession in white letters on a red background.
The insignia shall be designed by the commissioner and shall
contain a fireman's helmet insignia on the left side of the license
plate.
(B) Each application submitted pursuant to this subdivision
shall be accompanied by an affidavit signed by the applicant's fire
chief, stating that the applicant is a volunteer fireman or woman
firefighter and justified in having a registration plate with the
requested insignia. The applicant must comply with all other laws
of this state regarding registration and licensure of motor
vehicles and must pay all required fees. Only one such license
plate may be issued to a volunteer fireman or woman.
(C) Each application submitted pursuant to this subdivision
shall be accompanied by payment of a special one-time initial
application fee of one dollar ten dollars, which is in addition to
any other registration or license fee required by this chapter.
All application fees shall be deposited into a special revolving fund to be used in the administration of this chapter.
(23) The division may issue special registration plates which
reflect patriotic themes, including the display of any United
States symbol, icon, phrase or expression, which evokes patriotic
pride or recognition.
(A) Upon appropriate application, the division shall issue to
an applicant a registration plate of the applicant's choice,
displaying a patriotic theme as provided in this subdivision, for
a vehicle titled in the name of the applicant. A series of
registration plates displaying patriotic themes shall be designed
by the commissioner of motor vehicles for distribution to
applicants.
(B) The division shall charge a special one-time initial
application fee of ten dollars in addition to all other fees
required by law. This special fee is to compensate the division of
motor vehicles for additional costs and services required in the
issuing of the special registration and shall be collected by the
division and deposited in a special revolving fund to be used for
the administration of this section.
(24) Special license plates bearing the American flag and the
logo "9/11/01".
(A) Upon appropriate application, the division shall issue
special registration plates which shall display the American flag
and the logo "9/11/01".
(B) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
(C) A special application fee of ten dollars shall be charged
at the time of initial application as well as upon application for
any duplicate or replacement registration plate, in addition to all
other fees required by this chapter. All application fees shall be
deposited into a special revolving fund to be used in the
administration of this chapter.
(25) The division may issue a special registration plate
celebrating the centennial of the 4-H youth development movement
and honoring the future farmers of America organization as follows:
(A) Upon appropriate application, the division may issue a
special registration plate depicting the symbol of the 4-H
organization which represents the head, heart, hands and health as
well as the symbol of the future farmers of America organization
which represents a cross section of an ear of corn for any number
of vehicles titled in the name of the qualified applicant.
(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
(C) The division shall charge an annual fee of fifteen dollars
for each special 4-H future farmers of America registration plate
in addition to all other fees required by this chapter.
(26) The division may issue special registration plates to educators in the state's elementary and secondary schools and in
the state's institutions of higher education as follows:
(A) Upon appropriate application, the division may issue a
special registration plate designed by the commissioner for any
number of vehicles titled in the name of the qualified applicant.
(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
(C) The division shall charge an annual fee of fifteen dollars
for each special educator registration plate in addition to all
other fees required by this chapter.
(27) The division may issue special registration plates to
members of the nemesis shrine as follows:
_____(A) Upon appropriate application, the division may issue a
special registration plate designed by the commissioner for any
number of vehicles titled in the name of the qualified applicant.
Persons desiring the special registration plate shall offer
sufficient proof of membership in nemesis shrine.
_____(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
_____(28) The division may issue volunteers and employees of the
American red cross special registration plates as follows:
_____(A) Upon appropriate application, the division shall issue to
any person who is a duly qualified volunteer or employee of the
American red cross a specialized registration plate which bears
recognition of the applicant as a volunteer or employee of the
American red cross for any number of vehicles titled in the name of
the qualified applicant.
_____(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
_____(29) The division shall issue special registration plates to
individuals who have received either the combat infantry badge or
the combat medic badge as follows:
_____(A) Upon appropriate application, the division shall issue a special registration plate designed by the commissioner for any
number of vehicles titled in the name of the qualified applicant.
Persons desiring the special registration plate shall offer
sufficient proof that they have received either the combat infantry
badge or the combat medic badge.
_____(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
_____(30) The division may issue special registration plates to
members of the knights of Columbus as follows:
_____(A) Upon appropriate application, the division shall issue a
special registration plate designed by the commissioner for any
number of vehicles titled in the name of the qualified applicant.
Persons desiring the special registration plate shall offer
sufficient proof of membership in the knights of Columbus.
_____(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
_____(31) The division may issue special registration plates to
former members of the Legislature as follows:
_____(A) Upon appropriate application, the division shall issue a
special registration plate designed by the commissioner for any
number of vehicles titled in the name of the qualified applicant.
Persons desiring the special registration plate shall offer
sufficient proof of former service as an elected or appointed
member of the West Virginia House of Delegates or the West Virginia
Senate.
_____(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section. The design of the plate shall
indicate total years of service in the Legislature.
_____(C) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
_____(32) Democratic state or county executive committee member
special registration plates:
_____(A) The division shall design and issue special registration
plates for use by democratic state or county executive committee
members. The design of the plates shall include an insignia of a donkey and shall differentiate by wording on the plate between
state and county executive committee members.
_____(B) An annual fee of twenty-five dollars shall be charged for
each democratic state or county executive committee member
registration plate in addition to all other fees required by this
chapter. All annual fees collected for each special plate issued
under this subdivision shall be deposited into a special revolving
fund to be used in the administration of this chapter.
_____(C) A special application fee of ten dollars shall be charged
at the time of initial application as well as upon application for
any duplicate or replacement registration plate, in addition to all
other fees required by this chapter. All application fees shall be
deposited into a special revolving fund to be used in the
administration of this chapter.
_____(D) The division shall not begin production of a plate
authorized under the provisions of this subdivision until the
division receives at least one hundred completed applications from
the state or county executive committee members, including all fees
required pursuant to this subdivision.
_____(33) The division may issue honorably discharged female
veterans special registration plates as follows:
_____(A) Upon appropriate application, there shall be issued to any
female honorably discharged veteran, of any branch of the armed
services of the United States, a special registration plate for any
number of vehicles titled in the name of the qualified applicant
with an insignia designed by the commissioner of the division of motor vehicles to designate the recipient as a woman veteran.
_____(B) A special initial application fee of ten dollars shall be
charged in addition to all other fees required by law. This
special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section: Provided, That nothing in this
section may be construed to exempt any veteran from any other
provision of this chapter.
_____(C) A surviving spouse may continue to use his deceased
spouse's honorably discharged veterans license plate until the
surviving spouse dies, remarries or does not renew the license
plate.
_____(34) The division may issue special registration plates
bearing the logo, symbol, insignia, letters or words demonstrating
association with West Liberty state college to any resident owner
of a motor vehicle. Resident owners may apply for the special
license plate for any number of Class A vehicles titled in the name
of the applicant. The special registration plates shall be
designed by the commissioner. Each application submitted pursuant
to this subdivision shall be accompanied by payment of a special
initial application fee of fifteen dollars, which is in addition to
any other registration or license fee required by this chapter.
The division shall charge an annual fee of fifteen dollars for each
special educator registration plate in addition to all other fees required by this chapter. All special fees shall be collected by
the division and deposited into a special revolving fund to be used
for the purpose of compensating the division of motor vehicles for
additional costs and services required in the issuing of the
special registration and for the administration of this section.
_____(35) The division may issue special registration plates to
members of the harley owners group as follows:
_____(A) Upon appropriate application, the division may issue a
special registration plate designed by the commissioner for any
number of vehicles titled in the name of the qualified applicant.
Persons desiring the special registration plate shall offer
sufficient proof of membership in the harley owners group.
_____(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
_____(36) The division may issue special registration plates for
persons retired from any branch of the armed services of the United
States as follows:
_____(A) Upon appropriate application, there shall be issued to any
person who has retired after service in any branch of the armed services of the United States, a special registration plate for any
number of vehicles titled in the name of the qualified applicant
with an insignia designed by the commissioner of the division of
motor vehicles to designate the recipient as retired from the armed
services of the United States.
_____(B) A special initial application fee of ten dollars shall be
charged in addition to all other fees required by law. This
special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of a special
registration and shall be collected by the division and deposited
in a special revolving fund to be used for the administration of
this section: Provided, That nothing in this section may be
construed to exempt any registrants from any other provision of
this chapter.
_____(C) A surviving spouse may continue to use his or her deceased
spouses retired military license plate until the surviving dies,
remarries or does not renew the license plate.
(d) The commissioner shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code regarding the proper forms to be
used in making application for the special license plates
authorized by this section. The commissioner may not begin the
design or production of any license plates for which eligibility is
based on membership or affiliation with a particular private
organization until at least one hundred persons complete an
application and deposit a check to cover the first year's basic registration, one-time design and manufacturing costs and to cover
the first year additional annual fee. If the organization fails to
submit the required number of applications with attached checks
within six months of the effective date of the authorizing
legislation, the plate will not be produced and will require
legislative reauthorization: Provided, That the six-month
requirement in this subsection does not apply to subdivisions (1)
through (26), inclusive, subsection (c) of this section.
_____(e) (1) Nothing in this section may be construed to require
requires a charge for a free prisoner of war license plate or a
free recipient of the congressional medal of honor license plate
for a vehicle titled in the name of the qualified applicant as
authorized by other provisions of this code.
(2) A surviving spouse may continue to use his or her deceased
spouse's prisoner of war or congressional medal of honor license
plate until the surviving spouse dies, remarries or does not renew
the license plate.
(3) Qualified former prisoners of war and recipients of the
congressional medal of honor may obtain a second special
registration plate for use on a passenger vehicle titled in the
name of the qualified applicant. The division shall charge a
one-time fee of ten dollars to be deposited into a special
revolving fund to be used in the administration of this chapter, in
addition to all other fees required by this chapter, for the second
special plate.
(f) The division may issue special ten-year registration plates as follows:
(1) The commissioner may issue or renew for a period of no
more than ten years any registration plate exempted from
registration fees pursuant to any provision of this code or any
restricted use antique motor vehicle license plate authorized by
section three-a, article ten of this chapter: Provided, That the
provisions of this subsection do not apply to any person who has
had a special registration suspended for failure to maintain motor
vehicle liability insurance as required by section three, article
two-a, chapter seventeen-d of this code or failure to pay personal
property taxes as required by section three-a of this article.
(2) An initial nonrefundable fee shall be charged for each
special registration plate issued pursuant to this subsection,
which is the total amount of fees required by section fifteen,
article ten of this chapter, section three, article three of this
chapter or section three-a, article ten of this chapter for the
period requested.
(g) The provisions of this section may not be construed to
exempt any registrant from maintaining motor vehicle liability
insurance as required by section three, article two-a, chapter
seventeen-d of this code or from paying personal property taxes on
any motor vehicle as required by section three-a of this article.
(h) The commissioner may, in his or her discretion, issue a
registration plate of reflectorized material suitable for permanent
use on motor vehicles, trailers and semitrailers, together with
appropriate devices to be attached to the registration to indicate the year for which the vehicles have been properly registered or
the date of expiration of the registration. The design and
expiration of the plates shall be determined by the commissioner.
(i) Any license plate issued or renewed pursuant to this
chapter, which is paid for by a check that is returned for
nonsufficient funds, is void without further notice to the
applicant. The applicant may not reinstate the registration until
the returned check is paid by the applicant in cash, money order or
certified check and all applicable fees assessed as a result
thereof have been paid.
The bill (Eng. Com. Sub. for H. B. No. 2511), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2512, Relating to
competitive bidding and notice requirements for the development of
natural resources in which the public land corporation has an
interest.
On second reading, coming up in regular order, was re
ported by
the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's second reading calendar.
Eng. House Bill No. 2696, Removing certain limitations on the
commissioner of agriculture to increase fees of certain services.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2868, Allowing alcohol beverage control commissioner to enter into contracts for sale and
promotion of certain proprietary scanner technology.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page two, section twenty-two, line three, after the word
"for" by inserting the word "the";
On page two, section twenty-two, line four, after the word
"beverages" by striking out the comma and inserting in lieu thereof
the word "and";
On page two, section twenty-two, line seven, by striking out
the word "utilized";
And,
On page three, section twenty-two, line twenty-four, by
striking out the word "utilizes" and inserting in lieu thereof the
word "uses".
The bill (Eng. Com. Sub. for H. B. No. 2868), as amended, was
then ordered to third reading.
Eng. House Bill No. 2870, Specifying the jurisdiction of the
PSC over, and the application of public utility laws to, certain
described electric generating facilities.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2891, Repealing the requirement that the tax commissioner annually report the amount of gasoline and special
fuel tax collected in each county.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page two, section three, line four, by striking out the
word "hereinafter";
On page two, section three, line six, by striking out the
words "shall be" and inserting in lieu thereof the word "is";
And,
On page two, section three, line nine, by striking out the
words "shall be" and inserting in lieu thereof the word "is".
The bill (Eng. H. B. No. 2891), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 2965, Authorizing the
division of corrections and the state fire marshal to retire,
transfer or dispose of canines used within these departments.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3014, Relating generally to
"Main Street Fairness Act of 2003".
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections one-a, two, three, four, four-a, four-b, five,
six, eight, nine-f, thirteen, fourteen, sixteen, thirty-one and
thirty-three, article fifteen, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that sections one, one-a, two, three,
three-a, four, five, six, seven, eight, nine, ten, ten-a, eleven,
eighteen, twenty-one, twenty-two, twenty-seven and twenty-nine,
article fifteen-a of said chapter be amended and reenacted; that
sections one, two, three and five, article fifteen-b of said
chapter be amended and reenacted; and that said article be further
amended by adding thereto twenty-one new sections, designated
sections two-a, eleven, twelve, thirteen, fourteen, fifteen,
sixteen, seventeen, eighteen, twenty-one, twenty-two, twenty-three,
twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight,
twenty-nine, thirty, thirty-one and thirty-two, all to read as
follows:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-1a. Legislative findings.
The Legislature hereby finds and declares that:
(1) It is the intent of the Legislature that the consumers
sales tax imposed by the provisions of this article and the use tax
imposed by the provisions of article fifteen-a of this chapter
eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended be complementary laws and wherever possible
be construed and applied to accomplish such intent as to the
imposition, administration and collection of such these taxes; and
_____(2) On and after the first day of January, two thousand four,
the taxes levied by this article and article fifteen-a of this
chapter shall also be administered and collected in accordance with
the provisions of article fifteen-b of this chapter.
§11-15-2. Definitions.
For the purpose of this article: (a) General. -- When used in
this article and article fifteen-a of this chapter, words defined
in subsection (b) of this section shall have the meanings ascribed
to them in this section, except in those instances where a
different meaning is provided in this article or the context in
which the word is used clearly indicates that a different meaning
is intended by the Legislature.
_____(b) Definitions. --
(a) (1) "Business" includes all activities engaged in or
caused to be engaged in with the object of gain or economic
benefit, direct or indirect, and all activities of the state and
its political subdivisions which involve sales of tangible personal
property or the rendering of services when those service activities
compete with or may compete with the activities of other persons.
(b) (2) "Communication" means all telephone, radio, light,
light wave, radio telephone, telegraph and other communication or
means of communication, whether used for voice communication,
computer data transmission or other encoded symbolic information transfers and shall include includes commercial broadcast radio,
commercial broadcast television and cable television.
(c) (3) "Contracting":
(1) (A) In general. -- "Contracting" means and includes the
furnishing of work, or both materials and work, for another (by a
sole contractor, general contractor, prime contractor,
subcontractor or construction manager) in fulfillment of a contract
for the construction, alteration, repair, decoration or improvement
of a new or existing building or structure, or any part thereof, or
for removal or demolition of a building or structure, or any part
thereof, or for the alteration, improvement or development of real
property. Contracting means and also includes services provided by
a construction manager so long as the project for which the
construction manager provides the services results in a capital
improvement to a building or structure or to real property.
(2) (B) Form of contract not controlling. -- An activity that
falls within the scope of the definition of contracting shall
constitute constitutes contracting regardless of whether the
contract governing the activity is written or verbal and regardless
of whether it is in substance or form a lump sum contract, a
cost-plus contract, a time and materials contract, whether or not
open-ended, or any other kind of construction contract.
(3) (C) Special rules. -- For purposes of this definition:
(A) (i) The term "structure" includes, but is not limited to,
everything built up or composed of parts joined together in some
definite manner and attached or affixed to real property or which adds utility to real property or any part thereof or which adds
utility to a particular parcel of property and is intended to
remain there for an indefinite period of time;
(B) (ii) The term "alteration" means, and is limited to,
alterations which are capital improvements to a building or
structure or to real property;
(C) (iii) The term "repair" means, and is limited to, repairs
which are capital improvements to a building or structure or to
real property;
(D) (iv) The term "decoration" means, and is limited to,
decorations which are capital improvements to a building or
structure or to real property;
(E) (v) The term "improvement" means, and is limited to,
improvements which are capital improvements to a building or
structure or to real property;
(F) (vi) The term "capital improvement" means improvements
that are affixed to or attached to and become a part of a building
or structure or the real property or which add utility to real
property, or any part thereof, and that last or are intended to be
relatively permanent. As used herein, "relatively permanent" means
lasting at least a year in duration without the necessity for
regularly scheduled recurring service to maintain the capital
improvement. "Regular recurring service" means regularly scheduled
service intervals of less than one year;
(G) (vii) Contracting does not include the furnishing of work,
or both materials and work, in the nature of hookup, connection, installation or other services if the service is incidental to the
retail sale of tangible personal property from the service
provider's inventory: Provided, That the hookup, connection or
installation of the foregoing is incidental to the sale of the same
and performed by the seller thereof or performed in accordance with
arrangements made by the seller thereof. Examples of transactions
that are excluded from the definition of contracting pursuant
hereto to this subdivision include, but are not limited to, the
sale of wall-to-wall carpeting and the installation of wall-to-wall
carpeting, the sale, hookup and connection of mobile homes, window
air conditioning units, dishwashers, clothing washing machines or
dryers, other household appliances, drapery rods, window shades,
venetian blinds, canvas awnings, free standing industrial or
commercial equipment and other similar items of tangible personal
property. Repairs made to the foregoing are within the definition
of contracting if the repairs involve permanently affixing to or
improving real property or something attached thereto which extends
the life of the real property or something affixed thereto or
allows or intends to allow the real property or thing permanently
attached thereto to remain in service for a year or longer; and
_____(H) (viii) The term "construction manager" means a person who
enters into an agreement to employ, direct, coordinate or manage
design professionals and contractors who are hired and paid
directly by the owner or the construction manager. The business
activities of a "construction manager" as defined herein shall in
this subdivision constitute contracting, so long as the project for which the construction manager provides the services results in a
capital improvement to a building or structure or to real property.
(d) (1) (4) "Directly used or consumed" in the activities of
manufacturing, transportation, transmission, communication or the
production of natural resources means used or consumed in those
activities or operations which constitute an integral and essential
part of the activities, as contrasted with and distinguished from
those activities or operations which are simply incidental,
convenient or remote to the activities.
(2) (A) Uses of property or consumption of services which
constitute direct use or consumption in the activities of
manufacturing, transportation, transmission, communication or the
production of natural resources includes include only:
(A) (i) In the case of tangible personal property, physical
incorporation of property into a finished product resulting from
manufacturing production or the production of natural resources;
(B) (ii) Causing a direct physical, chemical or other change
upon property undergoing manufacturing production or production of
natural resources;
(C) (iii) Transporting or storing property undergoing
transportation, communication, transmission, manufacturing
production or production of natural resources;
(D) (iv) Measuring or verifying a change in property directly
used in transportation, communication, transmission, manufacturing
production or production of natural resources;
(E) (v) Physically controlling or directing the physical movement or operation of property directly used in transportation,
communication, transmission, manufacturing production or production
of natural resources;
(F) (vi) Directly and physically recording the flow of
property undergoing transportation, communication, transmission,
manufacturing production or production of natural resources;
(G) (vii) Producing energy for property directly used in
transportation, communication, transmission, manufacturing
production or production of natural resources;
(H) (viii) Facilitating the transmission of gas, water, steam
or electricity from the point of their diversion to property
directly used in transportation, communication, transmission,
manufacturing production or production of natural resources;
(I) (ix) Controlling or otherwise regulating atmospheric
conditions required for transportation, communication,
transmission, manufacturing production or production of natural
resources;
(J) (x) Serving as an operating supply for property undergoing
transmission, manufacturing production or production of natural
resources or for property directly used in transportation,
communication, transmission, manufacturing production or production
of natural resources;
(K) (xi) Maintenance or repair Maintaining or repairing of
property, including maintenance equipment, directly used in
transportation, communication, transmission, manufacturing
production or production of natural resources;
(L) (xii) Storage Storing, removal or transportation of
economic waste resulting from the activities of manufacturing,
transportation, communication, transmission or the production of
natural resources;
(M) (xiii) Engaging in pollution control or environmental
quality or protection activity directly relating to the activities
of manufacturing, transportation, communication, transmission or
the production of natural resources and personnel, plant, product
or community safety or security activity directly relating to the
activities of manufacturing, transportation, communication,
transmission or the production of natural resources; or
(N) (xiv) Otherwise be used using as an integral and essential
part of transportation, communication, transmission, manufacturing
production or production of natural resources.
(3) (B) Uses of property or services which do not constitute
direct use or consumption in the activities of manufacturing,
transportation, transmission, communication or the production of
natural resources include, but are not limited to:
(A) (i) Heating and illumination of office buildings;
(B) (ii) Janitorial or general cleaning activities;
(C) (iii) Personal comfort of personnel;
(D) (iv) Production planning, scheduling of work or inventory
control;
(E) (v) Marketing, general management, supervision, finance,
training, accounting and administration; or
(F) (vi) An activity or function incidental or convenient to transportation, communication, transmission, manufacturing
production or production of natural resources, rather than an
integral and essential part of these activities.
(e) (1) (5) "Directly used or consumed" in the activities of
gas storage, the generation or production or sale of electric
power, the provision of a public utility service or the operation
of a utility business means used or consumed in those activities or
operations which constitute an integral and essential part of those
activities or operation, as contrasted with and distinguished from
activities or operations which are simply incidental, convenient or
remote to those activities.
(2) (A) Uses of property or consumption of services which
constitute direct use or consumption in the activities of gas
storage, the generation or production or sale of electric power,
the provision of a public utility service or the operation of a
utility business include only:
(A) (i) Tangible personal property, custom software or
services, including equipment, machinery, apparatus, supplies, fuel
and power and appliances, which are used immediately in production
or generation activities and equipment, machinery, supplies, tools
and repair parts used to keep in operation exempt production or
generation devices. For purposes of this subsection, production or
generation activities shall commence from the intake, receipt or
storage of raw materials at the production plant site;
(B) (ii) Tangible personal property, custom software or
services, including equipment, machinery, apparatus, supplies, fuel and power, appliances, pipes, wires and mains, which are used
immediately in the transmission or distribution of gas, water and
electricity to the public, and equipment, machinery, tools, repair
parts and supplies used to keep in operation exempt transmission or
distribution devices, and these vehicles and their equipment as are
specifically designed and equipped for such those purposes are
exempt from the tax when used to keep a transmission or
distribution system in operation or repair. For purposes of this
subsection, transmission or distribution activities shall commence
from the close of production at a production plant or wellhead when
a product is ready for transmission or distribution to the public
and shall conclude at the point where the product is received by
the public;
(C) (iii) Tangible personal property, custom software or
services, including equipment, machinery, apparatus, supplies, fuel
and power, appliance, pipes, wires and mains, which are used
immediately in the storage of gas or water, and equipment,
machinery, tools, supplies and repair parts used to keep in
operation exempt storage devices;
(D) (iv) Tangible personal property, custom software or
services used immediately in the storage, removal or transportation
of economic waste resulting from the activities of gas storage, the
generation or production or sale of electric power, the provision
of a public utility service or the operation of a utility business;
(E) (v) Tangible personal property, custom software or
services used immediately in pollution control or environmental quality or protection activity or community safety or security
directly relating to the activities of gas storage, generation or
production or sale of electric power, the provision of a public
utility service or the operation of a utility business.
(3) (B) Uses of property or services which would not
constitute direct use or consumption in the activities of gas
storage, generation or production or sale of electric power, the
provision of a public utility service or the operation of a utility
business include, but are not limited to:
(A) (i) Heating and illumination of office buildings;
(B) (ii) Janitorial or general cleaning activities;
(C) (iii) Personal comfort of personnel;
(D) (iv) Production planning, scheduling of work or inventory
control;
(E) (v) Marketing, general management, supervision, finance,
training, accounting and administration; or
(F) (vi) An activity or function incidental or convenient to
the activities of gas storage, generation or production or sale of
electric power, the provision of public utility service or the
operation of a utility business.
(f) "Drugs" includes all sales of drugs or appliances to a
purchaser upon prescription of a physician or dentist and any other
professional person licensed to prescribe.
(g) (6) "Gas storage" means the injection of gas into a
storage reservoir or the storage of gas for any period of time in
a storage reservoir or the withdrawal of gas from a storage reservoir engaged in by businesses subject to the business and
occupation tax imposed by sections two and two-e, article thirteen
of this chapter.
(h) (7) "Generating or producing or selling of electric power"
means the generation, production or sale of electric power engaged
in by businesses subject to the business and occupation tax imposed
by section two, two-d, two-m or two-n, article thirteen of this
chapter.
(i) (8) "Gross proceeds" means the amount received in money,
credits, property or other consideration from sales and services
within this state, without deduction on account of the cost of
property sold, amounts paid for interest or discounts or other
expenses whatsoever. Losses may not be deducted, but any credit or
refund made for goods returned may be deducted.
(9) "Includes" and "including", when used in a definition
contained in this article, does not exclude other things otherwise
within the meaning of the term being defined.
_____(j) "Management information services" means, and is limited
to, data processing, data storage, data recovery and backup,
programming recovery and backup, telecommunications, computation
and computer processing, computer programming, electronic
information and data management activities, or any combination of
these activities, when such activity, or activities, is not subject
to regulation by the West Virginia public service commission and
the activity, or activities, is for the purpose of managing,
planning for, organizing or operating, any industrial or commercial business, or any enterprise, facility or facilities of an
industrial or commercial business, whether the industrial or
commercial business or enterprise, facility or facilities of an
industrial or commercial business is located within or without this
state and without regard to whether the industrial or commercial
business, or enterprise, facility or facilities of an industrial or
commercial business is owned by the provider of the management
information services or by a "related person," as defined in
Section 267(b) of the Internal Revenue Code of 1986, as amended.
(k) "Management information services facility" means a
building, or any part thereof, or a complex of buildings, or any
part thereof, including the machinery and equipment located
therein, that is exclusively dedicated to providing management
information services to the owner or operator thereof or to another
person.
(l) (10) "Manufacturing" means a systematic operation or
integrated series of systematic operations engaged in as a business
or segment of a business which transforms or converts tangible
personal property by physical, chemical or other means into a
different form, composition or character from that in which it
originally existed.
(n) (11) "Persons" "Person" means any individual, partnership,
association, corporation, limited liability company, limited
liability partnership or any other legal entity, including this
state or its political subdivisions or an agency of either, or the
guardian, trustee, committee, executor or administrator of any person.
_____(m) (12) "Personal service" includes those: (1)(A)
Compensated by the payment of wages in the ordinary course of
employment; and (2)(B) Rendered to the person of an individual
without, at the same time, selling tangible personal property, such
as nursing, barbering, shoe shining, manicuring and similar
services.
(o) (13) Production of natural resource.
_____(1) (A) "Production of natural resources" means, except for
oil and gas, the performance, by either the owner of the natural
resources or another, of the act or process of exploring,
developing, severing, extracting, reducing to possession and
loading for shipment and shipment for sale, profit or commercial
use of any natural resource products and any reclamation, waste
disposal or environmental activities associated therewith and the
construction, installation or fabrication of ventilation
structures, mine shafts, slopes, boreholes, dewatering structures,
including associated facilities and apparatus, by the producer or
others, including contractors and subcontractors, at a coal mine or
coal production facility.
(2) (B) For the natural resources oil and gas, "production of
natural resources" means the performance, by either the owner of
the natural resources, a contractor or a subcontractor, of the act
or process of exploring, developing, drilling, well-stimulation
activities such as logging, perforating or fracturing,
well-completion activities such as the installation of the casing, tubing and other machinery and equipment and any reclamation, waste
disposal or environmental activities associated therewith,
including the installation of the gathering system or other
pipeline to transport the oil and gas produced or environmental
activities associated therewith and any service work performed on
the well or well site after production of the well has initially
commenced.
(3) (C) All work performed to install or maintain facilities
up to the point of sale for severance tax purposes would be is
included in the "production of natural resources" and subject to
the direct use concept.
(4) (D) "Production of natural resources" does not include the
performance or furnishing of work, or materials or work, in
fulfillment of a contract for the construction, alteration, repair,
decoration or improvement of a new or existing building or
structure, or any part thereof, or for the alteration, improvement
or development of real property, by persons other than those
otherwise directly engaged in the activities specifically set forth
in this subsection subdivision as "production of natural
resources".
(p) (14) "Providing a public service or the operating of a
utility business" means the providing of a public service or the
operating of a utility by businesses subject to the business and
occupation tax imposed by sections two and two-d, article thirteen
of this chapter.
(q) (15) "Purchaser" means a person who purchases tangible personal property, custom software or a service taxed by this
article.
(r) (16) "Sale", "sales" or "selling" includes any transfer of
the possession or ownership of tangible personal property or custom
software 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 consumption or use or any other purpose. "Sale" also
includes the furnishing of a service for consideration.
_____(s) (17) "Service" or "selected service" includes all
nonprofessional activities engaged in for other persons for a
consideration, which involve the rendering of a service as
distinguished from the sale of tangible personal property or custom
software, but shall does not include contracting, personal services
or the services rendered by an employee to his or her employer or
any service rendered for resale.
(18) "Streamlined sales and use tax agreement" or "agreement",
when used in this article, shall have the same meaning as when used
in article fifteen-b of this chapter, except when the context in
which the word agreement is used clearly indicates that a different
meaning is intended by the Legislature.
_____(t) (19) "Tax" includes all taxes, additions to tax, interest
and penalties levied hereunder under this article or article ten of
this chapter.
_____(u) (20) "Tax commissioner" means the state tax commissioner
or his or her delegate. The term "delegate" in the phrase "or his or her delegate", when used in reference to the tax commissioner,
means any officer or employee of the state tax division duly
authorized by the tax commissioner directly, or indirectly by one
or more redelegations of authority, to perform the functions
mentioned or described in this article or rules promulgated for
this article.
_____(v) (21) "Taxpayer" means any person liable for the tax
imposed by this article or additions to tax, penalties and interest
imposed by article ten of this chapter.
_____(w) (22) "Transmission" means the act or process of causing
liquid, natural gas or electricity to pass or be conveyed from one
place or geographical location to another place or geographical
location through a pipeline or other medium for commercial
purposes.
(x) (23) "Transportation" means the act or process of
conveying, as a commercial enterprise, passengers or goods from one
place or geographical location to another place or geographical
location.
(y) (24) "Ultimate consumer" or "consumer" means a person who
uses or consumes services or personal property.
(z) (25) "Vendor" means any person engaged in this state in
furnishing services taxed by this article or making sales of
tangible personal property or custom software. "Vendor" and
"seller" are used interchangeably in this article.
_____(c) Additional definitions. -- Other terms used in this
article are defined in article fifteen-b of this chapter, which definitions are incorporated by reference into this article.
Additionally, other sections of this article may define terms
primarily used in the section in which the term is defined.
§11-15-3. Amount of tax; allocation of tax and transfers.
(a) Vendor to collect. -- For the privilege of selling
tangible personal property or custom software and for the privilege
of dispensing furnishing certain selected services defined in
sections two and eight of this article, the vendor shall collect
from the purchaser the tax as provided under this article and
article fifteen-b of this chapter and shall pay the amount of tax
to the tax commissioner in accordance with the provisions of this
article or article fifteen-b of this chapter.
(b) Beginning on the first day of March, one thousand nine
hundred eighty-nine, the Amount of tax. -- The general consumer
sales and service tax imposed by this article shall be at the rate
of six cents on the dollar of sales or services, excluding gasoline
and special fuel sales, which remain taxable at the rate of five
cents on the dollar of sales.
(c) Calculation tax on fractional parts of a dollar until the
first day of January, two thousand four. -- There shall be no tax
on sales where the monetary consideration is five cents or less.
The amount of the tax shall be computed as follows:
(1) On each sale, where the monetary consideration is from six
cents to sixteen cents, both inclusive, one cent.
(2) On each sale, where the monetary consideration is from
seventeen cents to thirty-three cents, both inclusive, two cents.
(3) On each sale, where the monetary consideration is from
thirty-four cents to fifty cents, both inclusive, three cents.
(4) On each sale, where the monetary consideration is from
fifty-one cents to sixty-seven cents, both inclusive, four cents.
(5) On each sale, where the monetary consideration is from
sixty-eight cents to eighty-four cents, both inclusive, five cents.
(6) On each sale, where the monetary consideration is from
eighty-five cents to one dollar, both inclusive, six cents.
(7) If the sale price is in excess of one dollar, six cents on
each whole dollar of sale price, and upon any fractional part of a
dollar in excess of whole dollars as follows: One cent on the
fractional part of the dollar if less than seventeen cents; two
cents on the fractional part of the dollar if in excess of sixteen
cents but less than thirty-four cents; three cents on the
fractional part of the dollar if in excess of thirty-three cents
but less than fifty-one cents; four cents on the fractional part of
the dollar if in excess of fifty cents but less than sixty-eight
cents; five cents on the fractional part of the dollar if in excess
of sixty-seven cents but less than eighty-five cents; and six cents
on the fractional part of the dollar if in excess of eighty-four
cents. For example, the tax on sales from one dollar and one cent
to one dollar and sixteen cents, both inclusive, seven cents; on
sales from one dollar and seventeen cents to one dollar and
thirty-three cents, both inclusive, eight cents; on sales from one
dollar and thirty-four cents to one dollar and fifty cents, both
inclusive, nine cents; on sales from one dollar and fifty-one cents to one dollar and sixty-seven cents, both inclusive, ten cents; on
sales from one dollar and sixty-eight cents to one dollar and
eighty-four cents, both inclusive, eleven cents; and on sales from
one dollar and eighty-five cents to two dollars, both inclusive,
twelve cents: Provided, That beginning the first day of January,
two thousand four, tax due under this article shall be calculated
as provided in subsection (d) of this subsection, and this
subsection does not apply to sales made after the thirty-first day
of December, two thousand three.
_____(d) Calculation of tax on fractional parts of a dollar after
the thirty-first day of December, two thousand three. -- Beginning
the first day of January, two thousand four, the tax computation
under subsection (b) of this section shall be carried to the third
decimal place, and the tax rounded up to the next whole cent
whenever the third decimal place is greater than four and rounded
down to the lower whole cent whenever the third decimal place is
four or less. The vendor may elect to compute the tax due on a
transaction on a per item basis or on an invoice basis provided the
method used is consistently used during the reporting period.
_____(d) (e) No aggregation of separate sales transactions,
exception for coin-operated devices. -- Separate sales, such as
daily or weekly deliveries, shall not be aggregated for the purpose
of computation of the tax even though such the sales are aggregated
in the billing or payment therefor. Notwithstanding any other
provision of this article, coin-operated amusement and vending
machine sales shall be aggregated for the purpose of computation of this tax.
(f) Rate of tax on certain mobile homes. -- Notwithstanding
any provision of this article to the contrary, after the
thirty-first day of December, two thousand three, the tax levied on
sales of mobile homes to be used by the owner thereof as his or her
principal year-round residence and dwelling shall be an amount
equal to six percent of fifty percent of the sales price.
(g) Construction; custom software. -- After the thirty-first
day of December, two thousand three, whenever the words "tangible
personal property" or "property" appear in this article, the same
shall also include the words "custom software".
_____(f) Computation of tax on sales of gasoline and special fuel.
-- The method of computation of tax provided in this section does
not apply to sales of gasoline and special fuel.
_____(e) Of the taxes collected under the provisions of this
article, one sixth of such taxes collected for the period
subsequent to the thirty-first day of May, one thousand nine
hundred eighty-eight, prior to the first day of July, one thousand
nine hundred eighty-nine, and not attributable to or resulting from
the repeal of section eleven of this article or attributable to tax
on purchases of gasoline and special fuel, shall be reasonably
allocated, with allowance for refunds and net of reasonable costs
of administration, to and deposited by the tax commissioner in the
special account created in the treasury by section eight-a, article
four-b, chapter twenty-three of this code, not to exceed the amount
sufficient for making timely repayment of the principal and interest under the first payment due, by the thirtieth day of June,
one thousand nine hundred eighty-nine, in repayment for the moneys
previously transferred from such pneumoconiosis fund.
§11-15-4. Purchaser to pay; accounting by vendor.
(a) The purchaser shall pay to the vendor the amount of tax
levied by this article which shall be is added to and constitute
constitutes a part of the sales price and shall be is 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 such amount of tax in a different
manner. Where such authorization is given, the state's claim shall
be enforceable against and shall take precedence over all other
claims against the moneys commingled.
(b) The vendor shall keep records necessary to account for:
_____(1) The vendor's gross proceeds from sales of personal
property and services;
_____(2) The vendor's gross proceeds from taxable sales;
_____(3) The vendor's gross proceed from exempt sales;
_____(4) The amount of taxes collected under this article, which
taxes shall be held in trust for the state of West Virginia until
paid over to the tax commissioner; and
_____(5) Any other information as required by this article, or
article fifteen-b of this chapter, or as required by the tax
commissioner.
§11-15-4a. Failure to collect tax; liability of vendor.
If any vendor fails to collect the tax imposed by section
three of this article, he the vendor shall be personally liable for
such the amount as he the vendor failed to collect, except as
otherwise provided in this article or article fifteen-b of this
chapter.
§11-15-4b. Liability of purchaser; assessment and collection.
(a) General. -- If any purchaser refuses or otherwise does not
pay to the vendor the tax imposed by section three of this article,
or in the case of a sale subject to section nine-c of this article,
a purchaser refuses to sign and present to the vendor a proper
certificate indicating the sale is not subject to this tax, or
signs or presents to the vendor a false certificate, or after
signing and presenting a proper certificate uses the items
purchased in such a manner that the sale would be subject to the
tax, he the purchaser shall be personally liable for the amount of
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 by section three of this article from
liability therefor
(b) Collection of tax from purchaser. -- Nothing in this
section relieves any purchaser who owes the tax and who has not
paid the tax imposed by section three of this article from
liability for payment of the tax. In such those cases the tax
commissioner has authority to make an assessment against such the
purchaser, based upon any information within his or her possession or that may come into his or her possession. This assessment and
notice thereof shall be made and given in accordance with sections
seven and eight, article ten of this chapter.
(c) Liability of vendor. -- This section may not be construed
as relieving the vendor from liability for the tax, except as
otherwise provided in this article or article fifteen-b of this
chapter.
§11-15-5. Total amount collected is to be remitted.
No profit shall accrue to any person as a result of the
collection of the tax levied by this article notwithstanding the
total amount of such the taxes collected may be in excess of the
amount for which such the person would be liable by the application
of the levy of five percent rate of tax levied by section three of
this article to the vendor's gross proceeds of his from taxable
sales and services. and The total amount of all taxes collected
by such person the vendor shall be returned and remitted to the tax
commissioner as hereinafter provided in this article or article
fifteen-b of this chapter.
§11-15-6. Vendor must show sale or service exempt; presumption.
In the case of sales subject to section nine-c of this
article, the (a) The burden of proving that a sale or service was
exempt from the tax shall be upon the vendor, unless he the vendor
takes from the purchaser an exemption certificate signed by and
bearing the address of the purchaser and setting forth the reason
for the exemption and substantially in the form prescribed by the
tax commissioner: Provided, That when the seller is registered under the streamlined sales and use tax agreement to collect the
tax imposed by this article, the exemption certificate shall be in
the form prescribed by the governing board of the streamlined sales
and use tax agreement, and the signature of the purchaser is not
required unless a paper exemption certificate is furnished to the
seller.
_____(b) To prevent evasion, it shall be is presumed that all sales
and services are subject to the tax until the contrary is clearly
established.
§11-15-8. Furnishing of services included; exceptions.
The provisions of this article shall apply not only to selling
tangible personal property and custom software, but also to the
furnishing of all services, except professional and personal
services, and except those services furnished by corporations
businesses subject to the control of the public service commission
when the service or the manner in which it is delivered is subject
to regulation by the public service commission.
§11-15-9f. Exemption for sales and services subject to special
district excise tax.
Notwithstanding any provision of this article to the contrary,
any sale or service upon which a special district excise tax is
paid, pursuant to the provisions of section eleven, article
thirteen-b, chapter eight of this code, shall be is exempt from the
tax imposed by this article: Provided, That the special district
excise tax does not apply to sales of gasoline and special fuel.
§11-15-13. Collection of tax when sale on credit.
A vendor doing business wholly or partially on a credit basis
shall require the purchaser to pay the full amount of tax due upon
a credit sale at the time such sale is made or within thirty days
thereafter remit to the tax commissioner the tax due on the credit
sale for the month in which the credit transaction occurred.
§11-15-14. When separate records of sales required.
(a) Any vendor engaged in a business subject to this tax, who
is at the same time engaged in some other kind of business,
occupation or profession, not taxable under this article, shall
keep records to show separately the transactions used in
determining the tax base herein taxed under this article.
_____(b) In the event such the person fails to keep such separate
records there shall be levied upon him the person a tax based upon
the entire gross proceeds of both or all of his the person's
businesses.
§11-15-16. Tax return and payment; exception.
(a) Payment of tax. -- Subject to the exceptions set forth in
subsection (b) of this section, the taxes levied by this article
shall be are due and payable in monthly installments, on or before
the fifteenth twentieth day of the month next succeeding the month
in which the tax accrued, except as otherwise provided in this
article.
_____(b) Tax return. -- The taxpayer shall, on or before the
fifteenth twentieth day of each month, make out and mail to the tax
commissioner a return for the preceding month, in the form
prescribed by the tax commissioner, showing:
(a) (1) The total gross proceeds of his the vendor's business
for that the preceding month;
(b) (2) The gross proceeds of his the vendor's business upon
which the tax is based;
(c) (3) The amount of the tax for which he the vendor is
liable; and
(d) (4) Any further information necessary in the computation
and collection of the tax which the tax commissioner may require,
except as otherwise provided in this article or article fifteen-b
of this chapter.
_____(c) Remittance to accompany return. -- Except as otherwise
provided in this article or article fifteen-b of this chapter, a
remittance for the amount of the tax shall accompany the return.
Provided, That notwithstanding the provisions of section thirty of
this article
(d) Deposit of collected tax. -- Tax collected by the tax
commissioner shall be deposited as provided in section thirty of
this article, except that:
_____(1) Tax collected on sales of gasoline and special fuel shall
be deposited in the state road fund; and
_____(2) Any such sales tax collected by the alcohol beverage
control commissioner from persons or organizations licensed under
authority of article seven, chapter sixty of this code shall be
paid into a revolving fund account in the state treasury,
designated the drunk driving prevention fund, to be administered by
the commission on drunk driving prevention, subject to appropriations by the Legislature. Provided, however, That any
balances in the drunk driving prevention fund on the first day of
July, one thousand nine hundred eighty-nine, and all moneys
received into such fund during the fiscal year commencing the first
day of July, one thousand nine hundred eighty-nine, may, up to a
maximum of seven hundred fifty thousand dollars, be used by the
department of public safety for personal services, employee
benefits and unclassified expenditures for the time period
commencing the first day of July, one thousand nine hundred
eighty-nine, and ending the last day of June, one thousand nine
hundred ninety, subject to appropriation by the Legislature
(e) Return to be signed. -- A monthly return shall be signed
by the taxpayer or his the taxpayer's duly authorized agent when a
paper return is prepared and filed. When the return is filed
electronically, the return shall include the digital mark or
digital signature, as defined in article three, chapter thirty-
nine-a of this code, or the personal identification number of the
taxpayer, or the taxpayer's duly authorized agent, made in
accordance with any procedural rule that may be promulgated by the
tax commissioner.
_____(b) (f) Accelerated payment. --
(1) For calendar years beginning after the thirty-first day of
December, one thousand nine hundred ninety, Taxpayers whose
average monthly installments for payment of the taxes levied by
this article and article fifteen-a of this chapter during the
previous calendar year exceeds one hundred thousand dollars shall remit the tax attributable to the first fifteen days of June each
year on or before the twenty-third twentieth day of said month of
June.
(2) For purposes of complying with subdivision (1) of this
subsection (b), the taxpayer shall remit an amount equal to the
amount of tax imposed by this article and article fifteen-a of this
chapter on actual taxable sales of tangible personal property and
custom software and sales of taxable services during the first
fifteen days of June or, at the taxpayer's election, the taxpayer
may remit an amount equal to fifty percent of the taxpayer's
liability for tax under this article on taxable sales of tangible
personal property and custom software and sales of taxable services
made during the preceding month of May.
(3) For a business which has not been in existence for a full
calendar year, the total tax due from the business during such the
prior calendar year shall be divided by the number of months,
including fractions of a month, that it was in business during such
the prior calendar year; and if that amount exceeds one hundred
thousand dollars, the tax attributable to the first fifteen days of
June each year shall be remitted on or before the twenty-third
twentieth day of said month of June as provided in subdivision (2)
of this subsection (b).
(4) When a taxpayer required to make an advanced payment of
tax under subdivision (1) of this subsection (b) makes out it's the
return for the month of June, which is due on the fifteenth
twentieth day of July, such the taxpayer may claim as a credit against its liability under this article for tax on taxable
transactions during the month of June, the amount of the advanced
payment of tax made under subdivision (1) of this subsection (b).
§11-15-31. Construction and severability.
If any of the provisions of this article are held invalid,
such invalidation shall not affect other provisions which can be
given effect without the invalid provision and to this end the
provisions of this article are declared to be severable.
(a) Construction. -- If a court of competent jurisdiction
finds that the provisions of this article and of article fifteen-b
of this chapter conflict and cannot be harmonized, then the
provisions of article fifteen-b of this chapter shall control.
_____(b) Severability. -- If any section, subsection, subdivision,
paragraph, sentence, clause or phrase of this article is for any
reason held to be invalid, unlawful or unconstitutional, that
decision may not affect the validity of the remaining portions of
this article or any part thereof.
§11-15-33. Effective date.
(a) The provisions of this article as amended or added by
Senate Bill No. 1 took effect on the first day of March, one
thousand nine hundred eighty-nine, and apply to all sales made on
or after that date: Provided, That if an effective date was
expressly provided in a provision of such act, that specific
effective date controlled in lieu of this general effective date
provision.
(b) The provisions of this article as amended or added by chapter two hundred one, Acts of the Legislature, one thousand nine
hundred eighty-nine, took effect on the first day of July, one
thousand nine hundred eighty-nine, and apply to all sales made on
or after that date: Provided, That if an effective date is
expressly provided in any provision, that specific effective date
shall control in lieu of this general effective date provision.
(c) The provisions of this article as amended or added by
Committee Substitute for House Bill No. 4247 shall take effect on
the first day of July, one thousand nine hundred ninety, and apply
to all sales made on or after that date: Provided, That if an
effective date is expressly provided in any provision of such act,
that specific effective date shall control in lieu of this general
effective date provision with respect to such provision.
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.
ARTICLE 15A. USE TAX.
§11-15A-1. Definitions.
The following words, terms and phrases, when (a) General. --
When used in this article and article fifteen of this chapter,
terms defined in subsection (b) of this section shall have the
meanings ascribed to them in this section, except in those
instances where a different meaning is provided in this article or
the context in which the word is used clearly indicates that a different meaning is required intended by the Legislature:
_____(1) (b) "Business" means any activity engaged in by any
person, or caused to be engaged in by any person, with the object
of direct or indirect economic gain, benefit or advantage, and
includes any purposeful revenue generating activity in this state;
(2) "Consumer" means any person purchasing tangible personal
property, custom software or a taxable service from a retailer as
defined in paragraph (7) of this subsection or from a seller as
defined in section two, article fifteen-b of this chapter;
(3) "Lease" includes rental, hire and license;
(4) "Person" includes any individual, firm, partnership, joint
venture, joint stock company, association, public or private
corporation, limited liability company, limited liability
partnership, cooperative, estate, trust, business trust, receiver,
executor, administrator, any other fiduciary, any representative
appointed by order of any court or otherwise acting on behalf of
others, or any other group or combination acting as a unit, and the
plural as well as the singular number;
(5) "Purchase" means any transfer, exchange or barter,
conditional or otherwise, in any manner or by any means whatsoever,
for a consideration;
(6) "Purchase price" means the total amount for which tangible
personal property is sold, valued in money, whether paid in money
or otherwise: Provided, That cash discounts allowed and taken on
sales shall not be included measure subject to the tax imposed by
this article and has the same meaning as sales price;
(7) "Retailer" means and includes every person engaging in the
business of selling, leasing or renting tangible personal property
or custom software or furnishing a taxable service for use within
the meaning of this article, or in the business of selling, at
auction, tangible personal property or custom software owned by the
person or others for use in this state: Provided, That when in the
opinion of the tax commissioner it is necessary for the efficient
administration of this article to regard any salesmen salespersons,
representatives, truckers, peddlers or canvassers as the agents of
the dealers, distributors, supervisors, employees or persons under
whom they operate or from whom they obtain the tangible personal
property sold by them, irrespective of whether they are making
sales on their own behalf or on behalf of such the dealers,
distributors, supervisors, employers or persons, the tax
commissioner may so regard them and may regard the dealers,
distributors, supervisors, employers or persons as retailers for
purposes of this article;
(8) "Retailer engaging in business in this state" or any like
term, unless otherwise limited by federal statute, shall mean and
include, but not be limited to, any retailer having or maintaining,
occupying or using, within this state, directly or by a subsidiary,
an office, distribution house, sales house, warehouse or other
place of business, or any agent (by whatever name called) operating
within this state under the authority of the retailer or its
subsidiary, irrespective of whether such the place of business or
agent is located here permanently or temporarily, or whether such retailer or subsidiary is admitted to do business within this state
pursuant to section forty-nine, article one fifteen, chapter
thirty-one thirty-one-d of this code or article fourteen, chapter
thirty-one-e of this code;
(9) "Sale" means any transaction resulting in the purchase or
lease of tangible personal property, custom software or a taxable
service from a retailer;
(10) "Seller" means a retailer, and includes every person
selling or leasing tangible personal property or custom software or
furnishing a taxable service in a transaction which that is subject
to the tax imposed by this article;
(11) "Streamlined sales and use tax agreement" or "agreement",
when used in this article, shall have the same meaning as when used
in article fifteen-b of this chapter, except when the context in
which the word agreement is used clearly indicates that a different
meaning is intended by the Legislature;
(12) "Tangible personal property" means tangible goods, wares
and merchandise when sold by a retailer for use in this state
personal property that can be seen, weighed, measured, felt or
touched or that is in any manner perceptible to the senses.
"Tangible personal property" includes, but is not limited to,
electricity, water, gas and prewritten computer software;
_____(11) (13) "Tax commissioner" or "commissioner" means the state
tax commissioner, or his or her delegate. The term "delegate" in
the phrase "or his or her delegate", when used in reference to the
tax commissioner, means any officer or employee of the state tax division duly authorized by the tax commissioner directly, or
indirectly by one or more redelegations of authority, to perform
the functions mentioned or described in this article or rules
promulgated for this article;
_____(13) (14) "Taxpayer" includes any person within the meaning of
this section who is subject to a tax imposed by this article,
whether acting for himself or herself or as a fiduciary; and
_____(14) (15) "Use" means and includes:
(A) The exercise by any person of any right or power over
tangible personal property or custom software incident to the
ownership, possession or enjoyment of such the property, or by any
transaction in which possession of or the exercise of any right or
power over tangible personal property, custom software or the
result of a taxable service is acquired for a consideration,
including any lease, rental or conditional sale of tangible
personal property or custom software; or
_____(B) The use or enjoyment in this state of the result of a
taxable service. As used in this definition subdivision,
"enjoyment" includes a purchaser's right to direct the disposition
of the property or the use of the taxable service, whether or not
the purchaser has possession of the property.
The term "use" does not include the keeping, retaining or
exercising any right or power over tangible personal property,
custom software or the result of a taxable service for the purpose
of subsequently transporting it outside the state for use
thereafter solely outside this state.
(b) Additional definitions. -- Other terms used in this
article are defined in articles fifteen and fifteen-b of this
chapter, which definitions are incorporated by reference into this
article. Additionally, other sections of this article may define
terms primarily used in the section in which the term is defined.
§11-15A-1a. Legislative findings.
The Legislature hereby finds and declares that:
(1) It is the intent of the Legislature that the use tax
imposed by the provisions of this article and the consumers sales
tax imposed by the provisions of article fifteen chapter eleven of
the Code of West Virginia, one thousand nine hundred thirty-one, as
amended, of this chapter be complementary laws and wherever
possible be construed and applied to accomplish such the intent as
to the imposition, administration and collection of such these
taxes; and
(2) On and after the first day of January, two thousand four,
the taxes levied by this article and article fifteen of this
chapter shall also be administered and collected in accordance with
the provisions of article fifteen-b of this chapter.
§11-15A-2. Imposition of tax; six percent tax rate; inclusion of
services as taxable; transition rules; allocation of tax and
transfers.
(a) An excise tax is hereby levied and imposed on the use in
this state of tangible personal property, custom software or
taxable services, to be collected and paid as hereinafter provided
in this article or article fifteen-b of this chapter, at the rate of six percent of the purchase price of such the property or
taxable services, except as otherwise provided in this article.
(b) Calculation of tax on fractional parts of a dollar. -- The
tax computation under subsection (a) of this section shall be
carried to the third decimal place and the tax rounded up to the
next whole cent whenever the third decimal place is greater than
four and rounded down to the lower whole cent whenever the third
decimal place is four or less. The vendor may elect to compute the
tax due on a transaction on a per item basis or on an invoice basis
provided the method used is consistently used during the reporting
period.
_____(c) "Taxable services", for the purposes of this article,
means services of the nature that are subject to the tax imposed by
article fifteen of this chapter. In this article, wherever the
words "tangible personal property" or "property" appear, the same
shall include the words "or taxable services", where the context so
requires.
(b) (d) Such Use tax is hereby imposed upon every person using
tangible personal property, custom software or taxable services
service within this state. That person's liability is not
extinguished until such the tax has been paid. A receipt with the
tax separately stated thereon issued by a retailer engaged in
business in this state, or by a foreign retailer who is authorized
by the tax commissioner to collect the tax imposed by this article,
relieves the purchaser from further liability for the tax to which
the receipt refers.
(c) (e) Purchases of tangible personal property or taxable
services made for the government of the United States or any of its
agencies by ultimate consumers shall be is subject to the tax
imposed by this section. Industrial materials and equipment owned
by the federal government within the state of West Virginia of a
character not ordinarily readily obtainable within the state, shall
not be is not subject to use tax when sold, if such the industrial
materials and equipment would not be subject to use taxes if such
were sold outside of the state for use in West Virginia.
(d) (f) This article shall does not apply to purchases made by
counties or municipal corporations.
(e) The provisions of this section, as amended, shall apply on
and after the first day of March, one thousand nine hundred
eighty-nine, except where another internal specific effective date
controls.
(f) Of the taxes collected under the provisions of this
article, one sixth of such taxes collected for the period
subsequent to the thirty-first day of May, one thousand nine
hundred eighty-eight, and prior to the first day of July, one
thousand nine hundred eighty-nine, and not attributable to or
resulting from the repeal of section eleven, article fifteen of
this chapter or attributable to tax on gasoline and special fuel,
shall be reasonably allocated, with allowances for refunds and net
of reasonable costs of administration, to, and deposited by the tax
commissioner in the special account created in the treasury by
section eight-a, article four-b, chapter twenty-three of this code, not to exceed the amount sufficient for making timely repayment of
the principal and interest under the first payment due, by the
thirtieth day of June, one thousand nine hundred eighty-nine, in
repayment for the moneys previously transferred from such
pneumoconiosis fund.
§11-15A-3. Exemptions.
(a) The use in this state of the following tangible personal
property, custom software and services is hereby specifically
exempted from the tax imposed by this article to the extent
specified:
(1) All articles of tangible personal property and custom
software brought into the state of West Virginia by a nonresident
individual thereof for his or her use or enjoyment while
temporarily within this state or while passing through this state,
except gasoline and special fuel: Provided, That fuel contained in
the supply tank of a motor vehicle that is not a motor carrier
shall may not be taxable.
(2) Tangible personal property, custom software or services,
the gross receipts from the sale of which are exempt from the sales
tax by the terms of article fifteen, chapter eleven of this code
and the property or services are being used for the purpose for
which it was exempted.
(3) Tangible personal property, custom software or services,
the gross receipts or the gross proceeds from the sale of which are
required to be included in the measure of the tax imposed by
article fifteen, chapter eleven of this code and upon which the tax imposed by said article has been paid.
(4) Tangible personal property, custom software or services,
the sale of which in this state is not subject to the West Virginia
consumers sales tax.
(5) Mobile Fifty percent of the measure of tax on mobile homes
utilized by the owners thereof as their principal year-round
residence and dwelling. Provided, That use of these mobile homes
shall be subject to tax at the three percent rate
(b) The provisions of this section, as amended in the year two
thousand three, shall apply on and after the first day of July, one
thousand nine hundred eighty-seven January, two thousand four.
§11-15A-3a. Moving residence or business into state.
The tax imposed by this article shall does not apply to
tangible personal property, custom software or services purchased
outside this state for use outside this state by a person who at
that time was a nonresident natural person, or a business entity
not actually doing business within this state, who or which later
brings such tangible personal property or custom software into this
state in connection with his or her establishment of a permanent
residence or business in this state: Provided, That such the
property was purchased more than six months prior to the date it
was first brought into this state, or six months prior to the
establishment of such his or her residence or business, whichever
first occurs.
§11-15A-4. Evidence of use.
For the purpose of the proper administration of this article to prevent evasion of the tax, evidence that tangible personal
property, custom software or a service was sold by any person for
delivery in this state shall be is prima facie evidence that such
the tangible personal property, custom software or service was sold
for use in this state.
§11-15A-5. How collected.
The tax herein imposed in section two of this article shall be
collected in the following manner:
(1) The tax upon the use of all tangible personal property,
custom software or services, which is sold by a retailer engaging
in business in this state, or by such any other retailer as the tax
commissioner shall authorize authorizes pursuant to section seven
of this article, or article fifteen-b of this chapter, shall be
collected by such the retailer and remitted to the state tax
commissioner, pursuant to the provisions of sections six through
ten, inclusive, of this article, or by the seller registered under
article fifteen-b of this chapter, in accordance with the
provisions of this article and article fifteen-b of this chapter.
(2) The tax upon the use of all tangible personal property,
custom software and taxable services not paid pursuant to
subsection one subdivision (1) of this section, shall be paid to
the tax commissioner directly by any person using such the property
or service within this state, pursuant to the provisions of section
eleven of this article.
§11-15A-6. Collection by retailer.
(a) Every retailer engaging in business in this state and making sales of tangible personal property, custom software or
taxable services for delivery into this state, or with the
knowledge, directly or indirectly, that the property or service is
intended for use in this state, that are not exempted under the
provisions of section three of this article, shall at the time of
making such the sales, whether within or without the state, collect
the tax imposed by this article from the purchaser, and give to the
purchaser a receipt therefor in the manner and form prescribed by
the tax commissioner, if the tax commissioner shall, prescribes by
regulation so prescribe rule.
(b) Each such retailer shall list with the tax commissioner
the name and address of all his the retailer's agents operating in
this state, and the location of any and all distribution or sales
houses or offices or other places of business in this state of the
retailer and the retailer's agent or agents.
§11-15A-7. Foreign retailers.
The tax commissioner may, in his or her discretion, upon
application authorize the collection of the tax herein imposed in
section two of this article by any retailer not engaging in
business within this state, who, to the satisfaction of the tax
commissioner, furnishes adequate security to insure collection and
payment of the tax. Such The retailer shall be issued, without
charge, a permit to collect such the tax in such the manner, and
subject to such regulations the rules and agreements as the tax
commissioner shall prescribe prescribes. When so authorized, it
shall be is the duty of such the retailer to collect the tax upon all tangible personal property, custom software and services sold
to his the retailer's knowledge for use within this state, in the
same manner and subject to the same requirements as a retailer
engaging in business within this state. Such The authority and
permit may be cancelled when, at any time, the tax commissioner
considers the security inadequate, or that such the tax can more
effectively be collected from the person using such the property or
taxable service in this state.
§11-15A-8. Absorbing tax; criminal penalty.
(a) It shall be is unlawful for any retailer to advertise or
hold out or state to the public or to any purchaser, consumer or
user, directly or indirectly, that the tax or any part thereof
imposed by this article will be assumed or absorbed by the retailer
or that it will not be added to the selling price of the property
or taxable service sold, or if added that it or any part thereof
will be refunded.
(b) The tax commissioner shall have has the power to adopt and
promulgate rules and regulations for adding such the tax, or the
equivalent thereof, by providing different methods applying
uniformly to retailers within the same general classification for
the purpose of enabling such retailers to add and collect, as far
as practicable, the amount of such the tax.
(c) Any person violating any of the provisions of this section
within this state shall be is guilty of a misdemeanor and subject
to the penalties provided in section twenty of this article seven,
article nine of this chapter.
§11-15A-9. Tax as debt.
The tax herein required to be collected by any retailer
pursuant to section six, six-a or seven of this article, or by any
seller or certified service provider pursuant to article fifteen-b
of this chapter, and any tax collected by any retailer, seller or
certified service provider pursuant to said section six, six-a or
seven of this article or article fifteen-b of this chapter, shall
constitute constitutes a debt owed by the retailer, seller or
certified service provider to this state. The amount of tax
collected shall be held in trust for the state of West Virginia
until paid over to the tax commissioner.
§11-15A-10. Payment to tax commissioner.
(a) Each retailer required or authorized, pursuant to section
six, six-a or seven of this article or pursuant to article fifteen-
b of this chapter, to collect the tax herein imposed in section two
of this article, is required to pay to the tax commissioner the
amount of the tax on or before the fifteenth twentieth day of the
month next succeeding each quarterly period calendar month, except
as otherwise provided in this article or article fifteen-b of this
chapter.
_____(b) Each certified service provider for a Model I seller shall
pay to the tax commissioner the tax levied by this article on or
before the twentieth day of the month next succeeding the calendar
month in which the tax accrued, except as otherwise provided in
this article or article fifteen-b of this chapter.
_____(b) (c) At that time, each retailer, seller or certified service provider shall file with the tax commissioner a return for
the preceding quarterly monthly period, except as otherwise
provided in this article or article fifteen-b of this chapter, in
the form prescribed by the tax commissioner showing the sales price
of any or all tangible personal property, custom software and
taxable services sold by the retailer or seller during the
preceding quarterly period, the use of which is subject to the tax
imposed by this article, and any other information the tax
commissioner may deem consider necessary for the proper
administration of this article. The return shall be accompanied by
a remittance of the amount of the tax, for the period covered by
the return, except as otherwise provided in this article or article
fifteen-b of this chapter: Provided, That where the tangible
personal property or custom software is sold under a conditional
sales contract, or under any other form of sale wherein the payment
of the principal sum, or a part of the sum is extended over a
period longer than sixty days from the date of the sale, the
retailer may collect and remit each quarterly monthly period that
portion of the tax equal to six percent of that portion of the
purchase price actually received during the quarterly monthly
period. The tax commissioner, if he or she deems it necessary in
order to insure payment to the state of the amount of the tax, may
in any or all cases require returns and payments of the amount to
be made for other than quarterly periods.
(c) (d) The tax commissioner may, upon request and a proper
showing of the necessity to do so, grant an extension of time not to exceed thirty days for making any return and payment.
(d) (e) Returns shall be signed by the retailer or seller or
his or her duly authorized agent and must be certified by him or
her to be correct, except as otherwise provided in this article or
article fifteen-b of this chapter.
_____(f) Accelerated payment. --
_____(1) For calendar years beginning after the thirty-first day of
December, two thousand two, taxpayers whose average monthly payment
of the taxes levied by this article and article fifteen of this
chapter during the previous calendar year exceeds one hundred
thousand dollars shall remit the tax attributable to the first
fifteen days of June each year on or before the twentieth day of
said month of June.
_____(2) For purposes of complying with subdivision (1) of this
subsection, the taxpayer shall remit an amount equal to the amount
of tax imposed by this article and article fifteen of this chapter
on actual taxable sales of tangible personal property and custom
software and sales of taxable services during the first fifteen
days of June or, at the taxpayer's election, taxpayer may remit an
amount equal to fifty percent of taxpayer's liability for tax under
this article on taxable sales of tangible personal property and
custom software and sales of taxable services made during the
preceding month of May.
_____(3) For a business which has not been in existence for a full
calendar year, the total tax due from the business during the prior
calendar year shall be divided by the number of months, including fractions of a month, that it was in business during the prior
calendar year; and if that amount exceeds one hundred thousand
dollars, the tax attributable to the first fifteen days of June
each year shall be remitted on or before the twentieth day of said
month of June as provided in subdivision (2) of this subsection.
_____(4) When a taxpayer required to make an advanced payment of
tax under subdivision (1) of this subsection makes out its return
for the month of June, which is due on the twentieth day of July,
the taxpayer may claim as a credit against its liability under this
article for tax on taxable transactions during the month of June,
the amount of the advanced payment of tax made under subdivision
(1) of this subsection.
§11-15A-10a. Credit for sales tax liability paid to another state.
(a) A person is entitled to a credit against the tax imposed
by this article on the use of a particular item of tangible
personal property, custom software or service equal to the amount,
if any, of sales tax lawfully paid to another state for the
acquisition of that property or service: Provided, That the amount
of credit allowed shall does not exceed the amount of use tax
imposed on the use of the property in this state.
(b) For purposes of this section:
(1) "Sales tax" includes a sales tax or compensating use tax
imposed on the use of tangible personal property or a service by
the state in which the sale occurred; and
(2) "State" includes the District of Columbia but does not
include any of the several territories organized by congress.
(c) This section shall apply to claims for refund or credit of
use tax filed after the thirty-first day of August, one thousand
nine hundred eighty-six, for taxable purchases made on or after the
first day of July, one thousand nine hundred eighty-five, that were
legally subject to a sales tax or compensating use tax paid in
another state and then also taxed under this article.
§11-15A-11. Liability of user.
(a) Any person who uses any tangible personal property, custom
software or the results of a taxable service upon which the tax
herein imposed has not been paid either to a retailer or direct to
the tax commissioner is liable for the amount of the nonpayment,
and persons required by law to hold a West Virginia business
registration certificate shall on or before the fifteenth day of
the month next succeeding each quarterly period pay the tax herein
imposed in section two of this article upon all the property and
services used by him or her during the preceding quarterly period
and accompanied by returns the tax commissioner prescribes:
Provided, That if the aggregate annual tax liability of any person
under this article is six hundred dollars or less, the person
shall, in lieu of the quarterly payment and filing, pay the tax on
or before the fifteenth day of the first month next succeeding the
end of his or her taxable year and shall file the annual return as
may be prescribed by the tax commissioner. The tax commissioner
may, by nonemergency legislative rules promulgated pursuant to
article three, chapter twenty-nine-a of this code, change the
foregoing minimum amounts.
(b) Any individual who is not required by law to hold a West
Virginia business registration certificate, who uses any tangible
personal property or taxable service upon which the West Virginia
use tax has not been paid either to a retailer or directly to the
tax commissioner is liable for the West Virginia use tax upon
property or taxable services and, notwithstanding the amount of the
annual aggregate annual tax liability, shall pay the use tax
imposed upon all property or taxable services used by him or her
during the taxpayer's federal taxable year on or before the
fifteenth day of April of the taxpayer's next succeeding federal
tax year and shall file the annual return therewith as the tax
commissioner may authorize or require.
(c) All of the provisions of section ten with reference to
quarterly or annual returns and payments are applicable to the
returns and payments required under this section.
(d) The amendments to this section enacted in the year two
thousand are effective for tax years beginning on or after the
first day of January, two thousand one.
§11-15A-18. Seller must show sale not at retail; presumption.
(a) The burden of proving that a sale was not taxable shall be
upon the seller, unless for sales subject to section three-c of
this article, he the seller, in good faith, takes from the
purchaser a certificate signed by and bearing the address of the
purchaser setting forth the reason for exemption of the sale from
imposition of the tax.
(b) Notwithstanding subsection (a) of this section, a seller who is registered under the streamlined sales and use tax agreement
to collect this tax is relieved of the good faith requirement for
the taking of an exemption certificate in accordance with article
fifteen-b of this chapter and any rule promulgated by the governing
board for the agreement.
_____(c) To prevent evasion it shall be is presumed that all
proceeds are subject to the tax until the contrary is clearly
established.
(d) This certificate shall be substantially in the form
prescribed by the tax commissioner: Provided, That when the seller
is registered under the streamlined sales and use tax agreement to
collect the tax imposed by this article, the exemption certificate
taken shall conform with requirements of the streamlined sales and
use tax agreement and any rules prescribed by the governing board
for the agreement.
§11-15A-21. Books; examination.
(a) Every retailer required or authorized to collect taxes
imposed by this article and every person using in this state
tangible personal property, custom software or taxable services
purchased on or after the first day of July, one thousand nine
hundred fifty-one, shall keep such records, receipts, invoices and
other pertinent papers as the tax commissioner shall require
requires in such any form as the tax commissioner shall require
requires.
(b) In addition to the tax commissioner's powers set forth in
article ten of this chapter, the tax commissioner or any of his or her duly authorized agents is hereby authorized to examine the
books, papers, records and equipment of any person who either:
(1) Is selling tangible personal property, custom software or
taxable services; or
(2) Is liable for the tax imposed by this article, and to
investigate the character of the business of any such person in
order to verify the accuracy of any return made, or if no return
was made by such the person, to ascertain and determine the amount
due under the provisions of this article. Any such books, papers
and records shall be made available within this state for such
examination upon reasonable notice when the tax commissioner shall
deem it advisable and shall so order. However, where the
taxpayer's records must be kept out-of-state, the taxpayer may upon
being notified by the tax commissioner that an examination is to be
made, elect to do one of the following:
(1) Forthwith transport the required records to a convenient
point in West Virginia and notify the tax commissioner that they
are available; or
(2) Pay the reasonable traveling expenses of the tax
commissioner's representatives from Charleston, West Virginia, to
the out-of-state place where the records are kept, and return, and
reasonable living expenses of such representatives while engaged in
their examination.
§11-15A-22. Canceling or revoking permits.
Whenever any retailer engaging in business in this state, or
authorized to collect the tax herein imposed in this article pursuant to section seven of this article, fails to comply with any
of the provisions of this article or any orders, or rules or
regulations of the tax commissioner prescribed and adopted for this
article under article ten of this chapter, the tax commissioner
may, upon notice and hearing, hereinafter provided, by order,
cancel the business registration certificate, if any, issued to
such the retailer under article twelve, chapter eleven of this code
or if such the retailer is a corporation authorized to do business
in this state under section forty-nine, article one, chapter
thirty-one of said article fifteen, chapter thirty-one-d of this
code or article fourteen, chapter thirty-one-e of this code, may
certify to the secretary of state a copy of an order finding that
such the retailer has failed to comply with certain specified
provisions, orders or rules or regulations. The secretary of state
shall, upon receipt of such certified copy the certification,
revoke the permit authorizing said the corporation to do business
in this state, and shall issue a new permit only when such the
corporation shall have has obtained from the tax commissioner an
order finding that such the corporation has complied with its
obligations under this article. No order authorized in this section
shall be made until the retailer is given an opportunity to be
heard and to show cause why such the order should not be made, and
he the corporation shall be given twenty days' notice of the time,
place and purpose of such the hearing, which shall be heard as
provided in section nine, article ten ten-a of this chapter. The
tax commissioner shall have the power in his or her discretion to issue a new business registration certificate after such canceling
the business registration certificate is cancelled.
§11-15A-27. Construction; partial unconstitutionality.
The provisions of this article shall be deemed to be severable
and if for any reason any provision shall be determined to be
unconstitutional or invalid, such determination shall not be held
to affect any other provision hereof.
(a) If a court of competent jurisdiction finds that the
provisions of this article and of article fifteen-b of this chapter
conflict and cannot be harmonized, then the provisions of article
fifteen-b of this chapter shall control.
_____(b) If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this article is for any reason held
to be invalid, unlawful or unconstitutional, that decision does not
affect the validity of the remaining portions of this article or
any part thereof.
§11-15A-29. Effective date.
(a) The provisions of this article as amended or added by
Senate Bill No. 1 took effect on the first day of March, one
thousand nine hundred eighty-nine, and apply to all purchases made
or used in this state on or after that date: Provided, That if an
effective date was expressly provided in a provision of such act,
that specific effective date controlled in lieu of this general
effective date provision.
(b) The provisions of this article as amended or added by this
act shall take effect on the first day of July, one thousand nine hundred eighty-nine, and apply to all purchases made or used in
this state on or after that date: Provided, That if an effective
date is expressly provided in such provision, that specific
effective date shall control in lieu of this general effective date
provision. 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.
ARTICLE 15B. STREAMLINED SALES AND USE TAX ADMINISTRATION ACT.
§11-15B-1. Title.
The provisions of this article shall be known as and referred
to as the "Simplified "Streamlined Sales and Use Tax Administration
Act".
§11-15B-2. Definitions.
As used in this article: (a) General. -- When used in this
article and articles fifteen and fifteen-a of this chapter, words
defined in subsection (b) of this section shall have the meanings
ascribed to them in this section, except in those instances where
a different meaning is distinctly expressed or the context in which
the term is used clearly indicates that a different meaning is
intended by the Legislature.
_____(b) Terms defined. --
(1) "Agent" means a person appointed by a seller to represent
the seller before the member states.
_____(1) (2) "Agreement" means the streamlined sales and use tax agreement as defined in section two-a of this article.
_____(3) "Alcoholic beverages" means beverages that are suitable
for human consumption and contain one half of one percent or more
of alcohol by volume.
_____(2) (4) "Certified automated system" or "CAS" means software
certified jointly by the states that are signatories to under the
agreement to calculate the tax imposed by each jurisdiction on a
transaction, determine the amount of tax to remit to the
appropriate state and maintain a record of the transaction.
(3) (5) "Certified service provider" or "CSP" means an agent
certified jointly by the states that are signatories to under the
agreement to perform all of the seller's sales tax functions.
(6) "Computer" means an electronic device that accepts
information in digital or similar form and manipulates the
information for a result based on a sequence of instructions.
_____(7) "Computer software" means a set of coded instructions
designed to cause a "computer" or automatic data processing
equipment to perform a task.
_____(8) "Delivered electronically" means delivered to the
purchaser by means other than tangible storage media.
_____(9) "Delivery charges" means charges by the seller of personal
property or services for preparation and delivery to a location
designated by the purchaser of personal property or services
including, but not limited to, transportation, shipping, postage,
handling, crating and packing.
_____(10) "Dietary supplement" means any product, other than "tobacco", intended to supplement the diet that:
_____(A) Contains one or more of the following dietary ingredients:
_____(i) A vitamin;
_____(ii) A mineral;
_____(iii) An herb or other botanical;
_____(iv) An amino acid;
_____(v) A dietary substance for use by humans to supplement the
diet by increasing the total dietary intake; or
_____(vi) A concentrate, metabolite, constituent, extract or
combination of any ingredient described in subparagraph (i) through
(v), inclusive, of this subdivision;
_____(B) Is intended for ingestion in tablet, capsule, powder,
softgel, gelcap or liquid form or, if not intended for ingestion in
such a form, is not represented as conventional food and is not
represented for use as a sole item of a meal or of the diet; and
_____(C) Is required to be labeled as a dietary supplement,
identifiable by the "Supplemental Facts" box found on the label as
required pursuant to 21 C. F. R. §101.36, or in any successor
section of the code of federal regulations.
_____(11) "Direct mail" means printed material delivered or
distributed by United States mail or other delivery service to a
mass audience or to addressees on a mailing list provided by the
purchaser or at the direction of the purchaser when the cost of the
items are not billed directly to the recipients. "Direct mail"
includes tangible personal property supplied directly or indirectly
by the purchaser to the direct mail seller for inclusion in the package containing the printed material. "Direct mail" does not
include multiple items of printed material delivered to a single
address.
_____(12) "Drug" means a compound, substance or preparation, and
any component of a compound, substance or preparation, other than
food and food ingredients, dietary supplements or alcoholic
beverages:
_____(A) Recognized in the official United States pharmacopoeia,
official homeopathic pharmacopoeia of the United States or official
national formulary, and supplement to any of them;
_____(B) Intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease in humans; or
_____(C) Intended to affect the structure or any function of the
human body.
_____(13) "Durable medical equipment" means equipment including
repair and replacement parts for the equipment, but does not
include "mobility enhancing equipment", which:
_____(A) Can withstand repeated use;
_____(B) Is primarily and customarily used to serve a medical
purpose;
_____(C) Generally is not useful to a person in the absence of
illness or injury; and
_____(D) Is not worn in or on the body.
_____(14) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic
or similar capabilities.
_____(15) "Entity-based exemption" means an exemption based on who
purchases the product or service or who sells the product or
service.
_____(16) "Food and food ingredients" means substances, whether in
liquid, concentrated, solid, frozen, dried or dehydrated form, that
are sold for ingestion or chewing by humans and are consumed for
their taste or nutritional value. "Food and food ingredients" does
not include alcoholic beverages or tobacco.
_____(17) "Includes" and "including", when used in a definition
contained in this article, is not considered to exclude other
things otherwise within the meaning of the term being defined.
_____(18) "Lease" includes rental, hire and license. "Lease" means
any transfer of possession or control of tangible personal property
for a fixed or indeterminate term for consideration. A lease or
rental may include future options to purchase or extend.
_____(A) "Lease" does not include:
_____(i) A transfer of possession or control of property under a
security agreement or deferred payment plan that requires the
transfer of title upon completion of the required payments;
_____(ii) A transfer or possession or control of property under an
agreement that requires the transfer of title upon completion of
required payments and payment of an option price does not exceed
the greater of one hundred dollars or one percent of the total
required payments; or
_____(iii) Providing tangible personal property along with an
operator for a fixed or indeterminate period of time. A condition of this exclusion is that the operator is necessary for the
equipment to perform as designed. For the purpose of this
subparagraph, an operator must do more than maintain, inspect or
set up the tangible personal property.
_____(B) This definition shall be used for sales and use tax
purposes regardless if a transaction is characterized as a lease or
rental under generally accepted accounting principles, the internal
revenue code, the uniform commercial code or other provisions of
federal, state or local law.
_____(19) "Load and leave" means delivery to the purchaser by use
of a tangible storage media where the tangible storage media is not
physically transferred to the purchaser.
_____(20) "Mobility enhancing equipment" means equipment, including
repair and replacement parts to the equipment, but does not include
"durable medical equipment", which:
_____(A) Is primarily and customarily used to provide or increase
the ability to move from one place to another and which is
appropriate for use either in a home or a motor vehicle;
_____(B)Is not generally used by persons with normal mobility; and
_____(C) Does not include any motor vehicle or equipment on a motor
vehicle normally provided by a motor vehicle manufacturer.
_____(21) "Model I seller" means a seller that has selected a
certified service provider as its agent to perform all the seller's
sales and use tax functions, other than the seller's obligation to
remit tax on its own purchases.
_____(22) "Model II seller" means a seller that has selected a
certified automated system to perform part of its sales and use tax
functions, but retains responsibility for remitting the tax.
_____(23) "Model III seller" means a seller that has sales in at
least five member states, has total annual sales revenue of at
least five hundred million dollars, has a proprietary system that
calculates the amount of tax due each jurisdiction and has entered
into a performance agreement with the member states that
establishes a tax performance standard for the seller. As used in
this definition, a seller includes an affiliated group of sellers
using the same proprietary system.
_____(4) (24) "Person" means an individual, trust, estate,
fiduciary, partnership, limited liability company, limited
liability partnership, corporation or any other legal entity.
(25) "Personal service" includes those:
_____(A) Compensated by the payment of wages in the ordinary course
of employment; and
_____(B) Rendered to the person of an individual without, at the
same time, selling tangible personal property, such as nursing,
barbering, manicuring and similar services.
_____(26) "Prescription" means an order, formula or recipe issued
in any form of oral, written, electronic or other means of
transmission by a duly licensed practitioner authorized by the laws
of this state to issue prescriptions.
_____(27) "Prewritten computer software" means "computer software",
including prewritten upgrades, which is not designed and developed by the author or other creator to the specifications of a specific
purchaser.
_____(A) The combining of two or more prewritten computer software
programs or prewritten portions thereof does not cause the
combination to be other than prewritten computer software.
_____(B) "Prewritten computer software" includes software designed
and developed by the author or other creator to the specifications
of a specific purchaser when it is sold to a person other than the
purchaser. Where a person modifies or enhances computer software
of which the person is not the author or creator, the person is
considered to be the author or creator only of the person's
modifications or enhancements.
_____(C) "Prewritten computer software" or a prewritten portion
thereof that is modified or enhanced to any degree, where the
modification or enhancement is designed and developed to the
specifications of a specific purchaser, remains prewritten computer
software: Provided, That where there is a reasonable, separately
stated charge or an invoice or other statement of the price given
to the purchaser for the modification or enhancement, the
modification or enhancement does not constitute prewritten computer
software.
_____(28) "Product-based exemption" means an exemption based on the
description of the product or service and not based on who
purchases the product or service or how the purchaser intends to
use the product or service.
_____(29) "Prosthetic device" means a replacement, corrective or
supportive device including repair and replacement parts for the
device worn on or in the body to:
_____(A) Artificially replace a missing portion of the body;
_____(B) Prevent or correct physical deformity or malfunction of
the body; or
_____(C) Support a weak or deformed portion of the body.
_____(30) "Protective equipment" means items for human wear and
designed as protection of the wearer against injury or disease or
as protections against damage or injury of other persons or
property but not suitable for general use.
_____(31) "Purchase price" means the measure subject to the tax
imposed by article fifteen or fifteen-a of this chapter and has the
same meaning as sales price.
_____(32) "Purchaser" means a person to whom a sale of personal
property is made or to whom a service is furnished.
_____(33) "Registered under this agreement" means registration by
a seller with the member states under the central registration
system provided in article four of the agreement.
_____(34) "Retail sale" or "sale at retail" means:
_____(A) Any sale or lease for any purpose other than for resale as
tangible personal property, sublease or subrent; and
_____(B) Any sale of a service other than a service purchased for
resale.
_____(35) (A) "Sales price" means the measure subject to the tax
levied by this article and includes the total amount of consideration, including cash, credit, property and services, for
which personal property or services are sold, leased or rented,
valued in money, whether received in money or otherwise, without
any deduction for the following:
_____(i) The seller's cost of the property sold;
_____(ii) The cost of materials used, labor or service cost,
interest, losses, all costs of transportation to the seller, all
taxes imposed on the seller and any other expense of the seller;
_____(iii) Charges by the seller for any services necessary to
complete the sale, other than delivery and installation charges;
_____(iv) Delivery charges;
_____(v) Installation charges;
_____(vi) The value of exempt personal property given to the
purchaser where taxable and exempt personal property have been
bundled together and sold by the seller as a single product or
piece of merchandise; and
_____(vii) Credit for the fair market value of any trade-in.
_____(B) "Sales price" does not include:
_____(i) Discounts, including cash, term or coupons that are not
reimbursed by a third party that are allowed by a seller and taken
by a purchaser on a sale;
_____(ii) Interest, financing and carrying charges from credit
extended on the sale of personal property, goods or services if the
amount is separately stated on the invoice, bill of sale or similar
document given to the purchaser; and
_____(iii) Any taxes legally imposed directly on the consumer that
are separately stated on the invoice, bill of sale or similar
document given to the purchaser.
_____(5) (36) "Sales tax" means the tax levied under article
fifteen of this chapter.
(6) (37) "Seller" means any person making sales, leases or
rentals of personal property or services.
(38) "Service" or "selected service" includes all
nonprofessional activities engaged in for other persons for a
consideration, which involve the rendering of a service as
distinguished from the sale of tangible personal property, but does
not include contracting, personal services, services rendered by an
employee to his or her employer, any service rendered for resale or
any service furnished by a business that is subject to the control
of the public service commission when the service or the manner in
which it is delivered is subject to regulation by the public
service commission of this state.
_____(7) (39) "State" means any state of the United States and the
District of Columbia.
(40) "Tangible personal property" means personal property that
can be seen, weighed, measured, felt or touched or that is in any
manner perceptible to the senses. "Tangible personal property"
includes, but is not limited to, electricity, water, gas and
prewritten computer software.
_____(41) "Tax" includes all taxes levied under articles fifteen
and fifteen-a of this chapter, and additions to tax, interest and
penalties levied under article ten of this chapter.
_____(42) "Tax commissioner" means the state tax commissioner or
his or her delegate. The term "delegate" in the phrase "or his or
her delegate", when used in reference to the tax commissioner,
means any officer or employee of the state tax division duly
authorized by the tax commissioner directly, or indirectly by one
or more redelegations of authority, to perform the functions
mentioned or described in this article or rules promulgated for
this article.
_____(43) "Taxpayer" means any person liable for the taxes levied
by articles fifteen and fifteen-a of this chapter or any additions
to tax, penalties imposed by article ten of this chapter.
_____(44) "Tobacco" means cigarettes, cigars, chewing or pipe
tobacco or any other item that contains tobacco.
_____(8) (45) "Use tax" means the tax levied under article
fifteen-a of this chapter.
(46) "Use-based exemption" means an exemption based on the
purchaser's use of the product or service.
_____(47) "Vendor" means any person furnishing services taxed by
article fifteen or fifteen-a of this chapter or making sales of
tangible personal property or custom software. "Vendor" and
"seller" are used interchangeably in this article and in articles
fifteen and fifteen-a of this chapter.
_____(c) Additional definitions. -- Other terms used in this
article are defined in articles fifteen and fifteen-a of this
chapter, which definitions are incorporated by reference into this
article. Additionally, other sections of this article may define
terms primarily used in the section in which the term is defined.
§11-15B-2a. Streamlined sales and use tax agreement defined.
As used in this article and articles fifteen and fifteen-a of
this chapter, the term "streamlined sales and use tax agreement" or
"agreement" means the agreement adopted the twelfth day of
November, two thousand two, by states that enacted authority to
engage in multistate discussions similar to that provided in
section four of this article, except when the context in which the
term is used clearly indicates that a different meaning is intended
by the Legislature. "Agreement" does not include any substantive
changes in the agreement adopted after the Legislature enacts this
section in the year two thousand three.
§11-15B-3. Legislative findings.
(a) The Legislature finds that a simplified streamlined sales
and use tax administration system will reduce and over time
eliminate the burden and cost for all vendors to collect this
state's sales and use tax. The Legislature further finds that this
state should participate in multistate discussions to review and/or
amend the terms of the agreement to simplify and modernize sales
and use tax administration in order to substantially reduce the
burden of tax compliance for all sellers and for all types of
commerce.
(b) The Legislature finds that the streamlined sales and use
tax agreement adopted the twelfth day of November, two thousand
two, by representatives of the states participating in multistate
discussions to amend and implement the agreement substantially
complies with the requirements of section seven of this article, as
enacted in the year two thousand two, and that this state should
now sign the agreement.
§11-15B-5. Authority to enter agreement.
Subject to approval of the Legislature, by concurrent
resolution or general law, the
(a) The tax commissioner is authorized and directed to enter
into the streamlined sales and use tax agreement, after the
thirtieth day of June, two thousand three, with one or more states
to simplify and modernize sales and use tax administration in order
to substantially reduce the burden of tax compliance for all
sellers and for all types of commerce.
(b) In furtherance of the agreement, the tax commissioner is
authorized to act jointly with other states that are members of the
agreement to establish standards for certification of a certified
service provider and certified automated system and establish
performance standards for multistate sellers. The tax commissioner
is further authorized to take other actions reasonably required to
implement the provisions set forth in this article. Other actions
authorized by this section include, but are not limited to, the
adoption of rules and the joint procurement, with other member
states, of goods and services in furtherance of the cooperative agreement. The tax commissioner or the commissioner's designee is
authorized to represent this state before the other states that are
signatories to the agreement.
§11-15B-11. Seller registration under streamlined sales tax
agreement.
(a) General. -- A seller that registers to collect West
Virginia sales and use taxes using the online sales and use tax
registration system established under the streamlined sales and use
tax agreement is not required to also register under article twelve
of this chapter unless the seller has sufficient presence in this
state that provides at least the minimum contacts necessary for a
constitutionally sufficient nexus for this state to require
registration and payment of the registration tax under article
twelve of this chapter.
(b) Registration by agent. -- A person appointed by a seller
to represent the seller before the states that are members of the
streamlined sales tax agreement may register the seller under the
agreement under uniform procedures adopted by the member states.
The appointment of an agent shall be in writing and submitted to a
member state if requested by a member.
(c) Cancellation of registration. -- A seller registered under
the streamlined sales and use tax agreement may cancel its
registration at any time under uniform procedures adopted by the
member states.
§11-15B-12. Effect of seller registration and participation in
streamlined sales and use tax administration.
(a) Collection of tax. -- By registering under the streamlined
sales use tax agreement, the seller agrees to collect and remit
sales and use taxes for all taxable sales into this state, as well
as for all other states participating in the agreement. Subsequent
withdrawal or revocation of a member state does not relieve a
seller of its responsibility to remit taxes previously or
subsequently collected on behalf of the state.
(b) Effect of registration. -- A member state, or a state that
has withdrawn or been expelled from the streamlined sales and use
tax agreement, may not use registration with the central
registration system and the collection of sales and use taxes in
the member states as a factor in determining whether the seller has
a nexus with that state for any tax at any time.
§11-15B-13. Amnesty for registration.
(a) Subject to the limitations in this section:
(1) The tax commissioner shall provide amnesty for uncollected
or unpaid sales or use tax to a seller who registers to pay or to
collect and remit applicable sales or use tax on sales made to
purchasers in this state in accordance with the terms of the
streamlined sales and use tax agreement: Provided, That the seller
was not registered in this state in the twelve-month period
preceding the effective date of this state's participation in the
streamlined sales and use tax agreement.
(2) The amnesty precludes assessment for uncollected or unpaid
sales or use tax together with additions to tax, penalty or
interest for sales made during the period the seller was not registered in this state: Provided, That registration under the
agreement occurs within twelve months after the effective date of
this state's participation in the streamlined sales and use tax
agreement.
(b) Exceptions. -- The amnesty is not available:
(1) To a seller with respect to any matter or matters for
which the seller received notice of the commencement of an audit
and which audit is not yet finally resolved including any related
administrative and judicial processes; or
(2) For sales or use taxes already paid or remitted to the
state or to taxes collected by the seller for this state.
(c) Period of amnesty. -- The amnesty is fully effective,
absent the seller's fraud or intentional misrepresentation of a
material fact, as long as the seller continues registration under
the agreement and continues payment or collection and remittance of
applicable sales or use taxes for a period of at least thirty-six
months. The statute of limitations applicable to asserting a tax
liability during this 36-month period is tolled.
(d) Effect of amnesty. -- The amnesty is applicable only to
sales or use taxes due from a seller in its capacity as a seller
and not to sales or use taxes due from a seller in its capacity as
a buyer.
§11-15B-14. General transaction sourcing definitions.
(a) Definition of receive or receipt. -- For the purposes of
subsection (a), section fifteen of this article, the terms
"receive" and "receipt" mean:
(1) Taking possession of tangible personal property;
(2) Making first use of services; or
(3) Taking possession or making first use of custom software,
whichever comes first.
(b) Limitation. -- The terms "receive" and "receipt" do not
include possession by a shipping company on behalf of the
purchaser.
§11-15B-15. General transaction sourcing rules.
(a) General rule. -- For purposes of articles fifteen and
fifteen-a of this chapter, the retail sale, excluding lease or
rental, of a product shall be sourced as follows:
(1) When the product is received by the purchaser at a
business location of the seller, the sale is sourced to that
business location.
(2) When the product is not received by the purchaser at a
business location of the seller, the sale is sourced to the
location where receipt by the purchaser or the purchaser's
designated donee occurs, including the location indicated by
instructions for delivery to the purchaser or donee, known to the
seller.
(3) When subdivisions (1) and (2) of this subsection do not
apply, the sale is sourced to the location indicated by an address
for the purchaser that is available from the business records of
the seller that are maintained in the ordinary course of the
seller's business when use of this address does not constitute bad
faith.
(4) When subdivisions (1), (2) and (3) of this subsection do
not apply, the sale is sourced to the location indicated by an
address for the purchaser obtained during the consummation of the
sale, including the address of a purchaser's payment instrument, if
no other address is available, provided use of this address does
not constitute bad faith.
(5) When none of the previous subdivisions of this subsection
apply, including the circumstance in which the seller is without
sufficient information to apply the previous rules, then the
location will be determined by the address from which tangible
personal property was shipped, or computer software delivered
electronically was first available for transmission by the seller,
or from which the service was provided: Provided, That any
location that merely provided the digital transfer of the product
sold is disregarded for these purposes.
(b) Lease or rental. -- The lease or rental of tangible
personal property, other than property identified in subsection (c)
or (d) of this section, shall be sourced as follows:
(1) For a lease or rental that requires recurring periodic
payments, the first periodic payment is sourced the same as a
retail sale in accordance with the provisions of subsection (a) of
this section. Periodic payments made subsequent to the first
payment are sourced to the primary property location for each
period covered by the payment. The primary property location is as
indicated by an address for the property provided by the lessee
that is available to the lessor from its records maintained in the ordinary course of business, when use of this address does not
constitute bad faith. The property location may not be altered by
intermittent use at different locations, such as use of business
property that accompanies employees on business trips and service
calls.
(2) For a lease or rental that does not require recurring
periodic payments, the payment is sourced the same as a retail sale
in accordance with the provisions of subsection (a) of this
section.
(3) This subsection does not affect the imposition or
computation of sales or use tax on leases or rentals based on a
lump sum or accelerated basis, or on the acquisition of property
for lease.
(c) Vehicles. -- The lease or rental of motor vehicles,
trailers, semitrailers or aircraft that do not qualify as
transportation equipment, as defined in subsection (d) of this
section, shall be sourced as follows:
(1) For a lease or rental that requires recurring periodic
payments, each periodic payment is sourced to the primary property
location. The primary property location is indicated by an address
for the property provided by the lessee that is available to the
lessor from its records maintained in the ordinary course of
business when use of this address does not constitute bad faith.
This location shall not be altered by intermittent use at different
locations.
(2) For a lease or rental that does not require recurring
periodic payments, the payment is sourced the same as a retail sale
in accordance with the provisions of subsection (a) of this
section.
(3) This subsection does not affect the imposition or
computation of sales or use tax on leases or rentals based on a
lump sum or accelerated basis or on the acquisition of property for
lease.
(d) Sale or lease or rental of transportation equipment. --
The retail sale, including lease or rental, of transportation
equipment is sourced the same as a retail sale in accordance with
the provisions of subsection (a) of this section, notwithstanding
the exclusion of lease or rental in subsection (a) of this section.
"Transportation equipment" means any of the following:
(1) Locomotives and railcars that are utilized for the
carriage of persons or property in interstate commerce.
(2) Trucks and truck-tractors with a gross vehicle weight
rating of ten thousand pounds or greater, trailers, semitrailers,
or passenger buses that are:
(A) Registered through the international registration plan;
and
(B) Operated under authority of a carrier authorized and
certificated by the United States department of transportation or
another federal authority to engage in the carriage of persons or
property in interstate commerce.
(3) Aircraft that are operated by air carriers authorized and
certificated by the United States department of transportation or
another federal or foreign authority to engage in the carriage of
persons or property in interstate or foreign commerce.
(4) Containers designed for use on and component parts
attached or secured on the items set forth in subdivisions (1)
through (3), inclusive, of this subsection.
§11-15B-16. Application of general sourcing rule and exclusions
from the rules.
(a) General. -- Sellers who collect the taxes levied by
articles fifteen and fifteen-a of this chapter shall source the
retail sale of a product, as provided in section fifteen of this
article. As used in this section, the term "product" includes
tangible personal property, custom software or a service, or any
combination thereof.
(b) Scope of sourcing rule. -- The provisions of section
fifteen of this article only apply to determine a seller's
obligation to pay or collect and remit a sales or use tax with
respect to the seller's retail sale of a product. Section fifteen
of this article does not affect the obligation of a purchaser or
lessee to remit tax on the use of the product to the taxing
jurisdiction of that use.
(c) Exceptions. -- The sourcing rules in this section and
section fifteen of this article do not apply to telecommunications
services.
§11-15B-17. Direct mail sourcing.
(a) General. -- Notwithstanding section fifteen of this
article, a purchaser of direct mail that is not a holder of a
direct pay permit shall provide to the seller in conjunction with
the purchase either a "direct mail form" or information to show the
jurisdictions to which the direct mail is delivered to recipients.
(1) Upon receipt of the direct mail form, the seller is
relieved of all obligations to collect, pay or remit the applicable
tax and the purchaser is obligated to pay or remit the applicable
tax on a direct pay basis. A direct mail form remains in effect
for all future sales of direct mail by the seller to the purchaser
until revoked in writing.
(2) Upon receipt of information from the purchaser showing the
jurisdictions to which the direct mail is delivered to recipients,
the seller shall collect the tax according to the delivery
information provided by the purchaser. In the absence of bad faith
by the seller, the seller is relieved of any further obligation to
collect tax on any transaction where the seller has collected tax
pursuant to the delivery information provided by the purchaser.
(b) When purchaser does not have direct pay permit and does
not provide direct mail form. -- If the purchaser of direct mail
does not have a direct pay permit and does not provide the seller
with either a direct mail form or delivery information, as required
by subsection (a) of this section, the seller shall collect the tax
according to subdivision (5), subsection (a), section fifteen of
this article. Nothing in this subsection shall limit a purchaser's obligation for sales or use tax to any state to which the direct
mail is delivered.
(c) Direct pay permit. -- If a purchaser of direct mail
provides the seller with documentation of direct pay authority, the
purchaser may not be required to provide a direct mail form or
delivery information to the seller.
§11-15B-18. Multiple points of use of certain products and
services.
(a) General. -- Notwithstanding the provisions of section
fifteen of this article, a business purchaser that is not a holder
of a direct pay permit that knows at the time of the business
purchase of a digital good, computer software delivered
electronically, or a service that the digital good, computer
software delivered electronically, or service will be concurrently
available for use in more than one jurisdiction shall deliver to
the seller in conjunction with the purchase a "multiple points of
use" or "MPU exemption" form disclosing this fact.
(1) Upon receipt of the MPU exemption form, the seller is
relieved of all obligation to collect, pay or remit the applicable
tax and the purchaser shall be obligated to collect, pay or remit
the applicable tax on a direct pay basis.
(2) A purchaser delivering the MPU exemption form may use any
reasonable, but consistent and uniform, method of apportionment
that is supported by the purchaser's business records as they exist
at the time of the consummation of the sale.
(3) The MPU exemption form remains in effect for all future
sales by the seller to the purchaser, except as to the subsequent
sale's specific apportionment that is governed by the principle of
subdivision (2) of this subsection and the facts existing at the
time of the sale, until revoked in writing.
(b) Holders of direct pay permits. -- A holder of a direct pay
permit may not be required to deliver a MPU exemption form to the
seller. A direct pay permit holder shall follow the provisions of
subdivision (2), subsection (a) of this section in apportioning the
tax due on a digital good, computer software delivered
electronically, or a service that will be concurrently available
for use in more than one jurisdiction.
[§11-15B-19 and §11-15B-20 reserved.]
§11-15B-21. Notice for state tax changes.
(a) General. -- The tax commissioner shall provide sellers
with as much advance notice as practicable of a rate change for a
tax levied by article fifteen or fifteen-a of this chapter.
(b) Effective date of rate changes. -- Unless the Legislature
expressly provides a different effective date for a rate change,
the change shall take effect on the first day of the calendar
quarter that begins on or after the effective date of the act of
the Legislature that makes the rate change and that is more than
sixty days after passage of the bill making the rate change.
(c) Notification of changes to tax base. -- The tax
commissioner shall make reasonable efforts to notify sellers of
legislative changes to the tax base and to amendments to sales and use tax rules, as that term is defined in section two, article one,
chapter twenty-nine-a of this code.
(d) Liability of seller. -- Failure of a seller to receive
notice or failure of the state to provide notice of a rate change
or a change in the tax base, or to limit the effective date of a
rate change, does not relieve the seller of its obligation to
collect sales or use taxes for this state.
§11-15B-22. Effective date of rate changes for certain services.
The effective date of rate changes for services covering a
service period starting before and ending after the statutory
effective date is as follows:
(1) For a rate increase, the new rate applies to the first
billing period starting on or after the effective date.
(2) For a rate decrease, the new rate applies to bills
rendered on or after the effective date.
§11-15B-23. Enactment of exemptions.
(a) Product-based exemptions. -- The Legislature may enact a
product-based exemption from the taxes levied by articles fifteen
and fifteen-a of this chapter without restriction if the
streamlined sales and use tax agreement does not have a definition
for the product or for a term that includes the product. If the
agreement has a definition for the product or for a term that
includes the product, the Legislature may exempt all items included
within the definition but may not exempt only part of the items
included within the definition, unless the streamlined sales and use tax agreement sets out the exemption for part of the items as
an acceptable variation.
(b) Entity-based or use-based exemption. -- The Legislature
may enact an entity-based or use-based exemption from a tax levied
by article fifteen or fifteen-a of this chapter without restriction
if the streamlined sales and use tax agreement does not have a
definition for the product whose use or purchase by a specific
entity is exempt or for a term that includes the product. If the
agreement has a definition for the product whose use or specific
purchase is exempt, the Legislature may enact an entity-based or
use-based exemption that applies to that product, as long as the
exemption utilizes the streamline sales and use tax agreement
definition of the product. If the agreement does not have a
definition for the product whose use or specific purchase is exempt
but has a definition for a term that includes the product, the
Legislature may enact an entity-based or use-based exemption for
the product without restriction.
(c) Construction. -- For purposes of complying with the
requirements in this section, the inclusion of a product within the
definition of tangible personal property is disregarded.
§11-15B-24. Administration of exemptions.
(a) General. -- When a purchaser claims an exemption under
article fifteen or fifteen-a of this chapter:
(1) A seller registered under the streamlined sales and use
tax agreement shall obtain identifying information of the purchaser
and the reason for claiming a tax exemption at the time of the purchase, as determined by the governing board established pursuant
to the agreement. A seller not registered under the agreement
shall obtain identifying information of the purchaser and the
reason for claiming a tax exemption at the time of purchase, as
determined by the tax commissioner.
(2) A purchaser is not required to provide a signature to
claim an exemption from tax unless a paper exemption certificate is
used.
(3) The seller shall use the standard form for claiming an
exemption electronically that is adopted by the governing board
administering the streamlined sales and use tax agreement.
(4) The seller shall obtain the same information for proof of
a claimed exemption regardless of the medium in which the
transaction occurred.
(5) The tax commissioner may utilize a system wherein the
purchaser exempt from the payment of the tax is issued an
identification number that is presented to the seller at the time
of the sale.
(6) The seller shall maintain proper records of exempt
transactions and provide the records to the tax commissioner or the
tax commissioner's designee.
(7) The tax commissioner shall administer use-based and
entity-based exemptions when practicable through a direct pay
permit, an exemption certificate or another means that does not
burden sellers.
(8) The tax commissioner shall relieve sellers registered
under the streamlined sales and use tax agreement that follow the
requirements of this section from any tax otherwise applicable if
it is determined that the purchaser improperly claimed an exemption
and shall hold the purchaser liable for the nonpayment of tax.
This relief from liability does not apply to a seller who
fraudulently fails to collect the tax or solicits purchasers to
participate in the unlawful claim of an exemption.
§11-15B-25. Uniform tax returns.
(a) General. -- A seller who registers with this state under
the streamlined sales tax agreement is required to file one
sales/use tax return with the tax commissioner for each taxing
period.
(b) Due date of return. -- This return shall be due on the
twentieth day of the month following the month in which the
transaction subject to tax occurred.
(c) Additional information returns. -- The tax commissioner
shall allow any Model I, II or III seller to submit its sales and
use tax returns in a simplified format that does not include more
data fields than permitted by the governing board administering the
streamlined sales and use tax agreement. The tax commissioner may
require additional informational returns to be submitted not more
frequently than every six months under a staggered system developed
by the governing board administering the streamlined sales and use
tax agreement.
(d) The tax commissioner shall allow any seller that is
registered with this state under the streamlined sales and use tax
agreement, which does not have a legal requirement to register in
this state under article twelve of this chapter, and is not a Model
I, II or III seller, to submit its sales and use tax returns as
follows:
(1) Upon registration, the tax commissioner shall provide to
the seller the returns required by this state.
(2) The tax commissioner may require a seller to file a return
any time within one year of the month of initial registration and
future returns may be required on an annual basis in succeeding
years.
(3) In addition to the returns required in subdivision (2) of
this subsection, a seller shall submit a return by the twentieth
day of the month following any month in which the seller
accumulated state and local tax funds for the state in the amount
of one thousand dollars or more.
(4) The tax commissioner shall participate with other states
that are members of the streamlined sales and use tax agreement in
developing a more uniform sales and use tax return that, when
completed, is available to all sellers.
(5) All Models I, II and III sellers shall file returns
electronically after the first day of January, two thousand four.
§11-15B-26. Uniform rules for remittances of funds.
(a) General. -- Only one remittance is required for each
return except as provided in this section.
(b) When electronic remittance required. -- All remittances
from sellers under Models I, II and III shall be remitted
electronically after the thirty-first day of December, two thousand
three.
(c) Method of remittance. -- Electronic payments shall be made
using either the ACH credit or ACH debit method.
(d) Alternative method. -- The tax commission shall provide by
rule, which may be an existing rule, an alternative method for
making "same day" payments if an electronic funds transfer fails.
(e) Format of data accompany remittance. -- Any data that
accompanies a remittance shall be formatted using uniform tax type
and payment type codes approved by the governing board
administering the streamlined sales and use tax agreement.
§11-15B-27. Uniform rules for recovery of bad debt.
(a) General. -- A deduction from taxable sales is allowed for
bad debts. Any deduction taken that is attributed to bad debts may
not include interest or any amount upon which the sales or use tax
imposed by this state was not previously paid.
(b) "Bad debt" defined. -- The term "bad debt" has the same
meaning as when used in the federal definition of "bad debt" in 26
U. S. C. §166 as the basis for calculating bad debt recovery.
However, the amount calculated pursuant to 26 U. S. C. §166 is
adjusted to exclude:
(1) Financing charges or interest;
(2) Sales or use taxes charged on the purchase price;
(3) Uncollectible amounts on property that remain in the
possession of the seller until the full purchase price is paid;
(4) Expenses incurred in attempting to collect any debt; and
(5) Repossessed property.
(c) When deduction may be taken. -- Bad debts may be deducted
on the return for the period during which the bad debt is written
off as uncollectible in the claimant's books and records and is
eligible to be deducted for federal income tax purposes. For
purposes of this section, a claimant who is not required to file
federal income tax returns may deduct a bad debt on a return filed
for the period in which the bad debt is written off as
uncollectible in the claimant's books and records and would be
eligible for a bad debt deduction for federal income tax purposes
if the claimant was required to file a federal income tax return.
(d) Subsequent recovery. -- If a deduction is taken for a bad
debt and the debt is subsequently collected, in whole or in part,
the tax on the amount collected shall be paid and reported on the
return filed for the period in which the collection is made.
(e) When bad debt deduction exceeds taxable sales. -- When the
amount of bad debt exceeds the amount of taxable sales for the
period during which the bad debt is written off, a refund claim may
be filed within the period specified in section fourteen, article
ten of this chapter, for filing a claim for refund or sales or use
tax, except that the statute of limitations shall be measured from
the due date of the return on which the bad debt could first be
claimed.
(f) When certified service provider is used. -- Where filing
responsibilities of the seller have been assumed by a certified
service provider, the certified service provider may claim, on
behalf of the seller, any bad debt allowance provided by this
section. The certified service provider shall credit or refund to
the seller the full amount of any bad debt allowance or refund
received under this section.
(g) Reporting of payment received on previously claimed bad
debt. -- For the purposes of reporting a payment received on a
previously claimed bad debt, any payments made on a debt or account
is applied first proportionally to the taxable price of the
property or service and the sales tax thereon and, secondly, to
interest, service charges and any other charges.
(h) Allocation. -- In situations where the books and records
of the party claiming the bad debt allowance support an allocation
of the bad debts among two or more states that are members of the
streamlined sales and use tax agreement, the allocation is
permitted.
§11-15B-28. Confidentiality and privacy protections under Model I.
(a) Purpose. -- The purpose of this section is to set forth
the policy of this state for the protection of the confidentiality
rights of all participants in the streamlined sales and use tax
administration and collection system and of the privacy interests
of consumers who deal with Model I sellers.
(b) Certain terms defined. -- As used in this section:
(1) The term "confidential taxpayer information" means all
information that is protected under section five-d, article ten of
this chapter;
(2) The term "personally identifiable information" means
information that identifies a person; and
(3) The term "anonymous data" means information that does not
identify a person.
(c) Certified service providers. -- With very limited
exceptions, a certified service provider shall perform its tax
calculation, remittance and reporting functions without retaining
the personally identifiable information of consumers.
(d) Certification of service providers. -- The governing board
administering the streamlined sales and used tax agreement may
certify a service provider only if that certified service provider
certifies that:
(1) Its system has been designed and tested to ensure that the
fundamental precept of anonymity is respected;
(2) That personally identifiable information is only used and
retained to the extent necessary for the administration of Model I
with respect to exempt purchasers;
(3) It provides consumers clear and conspicuous notice of its
information practices, including what information it collects, how
it collects the information, how it uses the information, how long,
if at all, it retains the information and whether it discloses the
information to member states. This notice is satisfied by a written privacy policy statement accessible by the public on the
official web site of the certified service provider;
(4) Its collection, use and retention of personally
identifiable information is limited to that required by the states
that are members of the streamlined sales and use tax agreement to
ensure the validity of exemptions from taxation that are claimed by
reason of a consumer's status or the intended use of the goods or
services purchased; and
(5) It provides adequate technical, physical and
administrative safeguards as to protect personally identifiable
information from unauthorized access and disclosure.
(e) State notification of privacy policy. -- The tax
commissioner shall provide public notification to consumers,
including their exempt purchasers, of this state's practices
relating to the collection, use and retention of personally
identifiable information.
(f) Destruction of confidential information. -- When any
personally identifiable information that has been collected and
retained by the tax commissioner is no longer required for the
purposes set forth in subdivision (4), subsection (d) of this
section, the information shall no longer be retained by the tax
commissioner.
(g) Review and correction by individuals. -- When personally
identifiable information regarding an individual is retained by or
on behalf of the tax commissioner, the commissioner shall provide
reasonable access by an individual to his or her own information in the commissioner's possession and a right to correct any
inaccurately recorded information.
(h) Discovery by other persons. -- If anyone other than the
individual, or a person authorized in writing by the individual,
seeks to discover personally identifiable information, the tax
commissioner shall make a reasonable and timely effort to notify
the individual of the request.
(i) Enforcement. -- This privacy policy shall be enforced by
the tax commissioner or the attorney general of this state.
(j) Service provider's confidentiality policy may be more
restrictive. -- This privacy policy does not preclude the governing
board administering the streamlined sales and use tax agreement
from certifying a certified service provider whose privacy policy
is more protective of confidential taxpayer information or
personally identifiable information than is required by the
agreement or the laws of this state.
§11-15B-29. Customer refund procedure.
(a) General. -- The customer refund procedures set forth in
this section apply when a purchaser seeks a return of
over-collected sales or use taxes from the seller.
(b) Applicability. -- These customer refund procedures provide
the first course of remedy available to purchasers seeking a return
of over-collected sales or use taxes from the seller. A cause of
action against the seller for the over-collected sales or use taxes
does not accrue until a purchaser has provided written notice to a
seller and the seller has had sixty days to respond. The notice to the seller must contain the information necessary to determine the
validity of the request.
(c) Presumption of reasonable business practice. -- In
connection with a purchaser's request from a seller of
over-collected sales or use taxes, a seller is presumed to have a
reasonable business practice if, in the collection of the sales or
use taxes, the seller:
(1) Uses either a certified service provider or a certified
automated system, including a proprietary system, that is certified
by the state; and
(2) Has remitted to the state all taxes collected less any
allowable deductions, credits or collection allowances.
(d) Statute of limitations. -- Nothing in this section shall
operate to extend any person's time to seek from the tax
commissioner a refund of sales or use taxes collected or remitted
by a seller in error.
§11-15B-30. Monetary allowances for new technological models for
sales tax collection; delayed effective date.
(a) Monetary allowance under Model I. --
(1) The tax commissioner shall provide a monetary allowance to
a certified service provider in Model I. This allowance shall be
in accordance with the terms of the contract between the governing
board of the streamlined sales and use tax agreement and the
certified service provider. The details of this monetary allowance
shall be developed and provided through the contract process. The contract shall provide that the allowance be funded entirely from
money collected in Model I.
(2) The contract between the governing board and the certified
service provider may base the monetary allowance to a certified
service provider on one or more of the following:
(A) A base rate that applies to taxable transactions processed
by the certified service provider; or
(B) For a period not to exceed twenty-four months following a
voluntary seller's registration through the agreement's central
registration process, a percentage of tax revenue generated for a
member state by the voluntary seller for each member state for
which the seller does not have a requirement to register to collect
the tax.
(b) Monetary allowance for Model II sellers. -- The monetary
allowance to sellers under Model II may be based on the following:
(1) All sellers shall receive a base rate for a period not to
exceed twenty-four months following the commencement of
participation by a seller. The base rate is set by the governing
board of the streamlined sales and use tax agreement after the base
rate has been established for Model I certified service providers.
This allowance is in addition to any vendor or seller discount
afforded by each member state at the time.
(2) Following the conclusion of the 24-month period, a seller
will only be entitled to a vendor discount afforded under each
member state's law at the time the base rate expires.
(c) Monetary allowance for Model III sellers and all other
sellers that are not under Model I or II. -- A monetary allowance
to sellers under Model III and to all other sellers that are not
under Model I or II may be allowed based on the following:
(1) For a period not to exceed twenty-four months following a
voluntary seller's registration through the agreement's central
registration process, a percentage of tax revenue generated for a
member state by the voluntary seller for each member state for
which the seller does not have a requirement to register to collect
the tax; and
(2) Vendor discounts afforded under each member state's law.
(d) Prohibition on allowance or payment of monetary
allowances. -- Notwithstanding subsections (a), (b) and (c) of this
section, the tax commissioner may not allow any vendor, seller or
certified service provider any monetary allowance, discount or
other compensation for collecting and remitting the taxes levied by
articles fifteen and fifteen-a of this chapter, or for making and
filing the periodic reports required by this article, or articles
fifteen and fifteen-a of this chapter, until this section is
amended by the Legislature.
(e) Findings and declarations. -- The Legislature finds that
the vendor cost of collection study was not completed for use by
the governing board of the streamlined sales and use tax agreement
or this Legislature before this Legislature was asked to authorize
the tax commissioner to sign the streamlined sales and use tax
agreement. Additionally, no preliminary findings or conclusions of the study regarding vendor costs of collection are available upon
which the tax commissioner or the Legislature can reasonably
project the effect the payment of the monetary allowances provided
for in subsections (a) through (c), inclusive, of this section will
have on net sales and use tax collections. Because the cost of
allowing monetary allowances under collection Models I through IV
may reduce net sales and use tax collections, at least in the early
years of the agreement, because many states including this state
are experiencing revenue shortfalls and because the Legislature is
constitutionally required to pass a balanced budget, the
Legislature finds and declares that it is both reasonable and
prudent to delay approving this aspect of the agreement until
adequate information does become available and the effect the
monetary allowances will have on West Virginia sales and use tax
collections can reasonably be quantified. The Legislature declares
its support for the streamlined sales and use tax agreement by
adopting in this enactment all substantive changes in West
Virginia's sales and use tax laws necessary for West Virginia's
sales and use tax laws to be in substantial compliance with the
streamlined sales and use tax agreement. Additionally, the
Legislature declares that it can quickly act to reconsider
subsection (d) of this section once the requisite information
becomes available.
§11-15B-31. Conflict; partial unconstitutionality.
(a) Conflict. -- If a court of competent jurisdiction finds
that the provisions of this article and of article fifteen-a of this chapter conflict and cannot be harmonized, then the provisions
of this article shall control.
(b) Severability. -- If any section, subsection, subdivision,
paragraph, sentence, clause or phrase of this article is for any
reason held to be invalid, unlawful or unconstitutional, that
decision does not affect the validity of the remaining portions of
this article or any part thereof.
§11-15B-32. Effective date.
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.
The bill (Eng. Com. Sub. for H. B. No. 3014), as amended, was
then ordered to third reading.
Eng. House Bill No. 3019, Finding and declaring certain claims
against the state and its agencies to be moral obligations of the
state.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
The end of today's second reading calendar having been
reached, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 2512, Relating to
competitive bidding and notice requirements for the development of natural resources in which the public land corporation has an
interest.
On second reading, coming up in deferred order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections three, five and six, article one-a, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 1A. REAL ESTATE MANAGEMENT AND PROCEDURES.
§20-1A-3. Public land corporation, powers and duties.
(a) The corporation is hereby authorized and empowered to:
(1) Acquire from any persons or the state auditor or any
local, state or federal agency, by purchase, lease or other
agreement, any lands necessary and required for public use;
(2) Acquire by purchase, condemnation, lease or agreement,
receive by gifts and devises, or exchange, rights-of-way,
easements, waters and minerals suitable for public use;
(3) Sell or exchange public lands where it is determined that
the sale or exchange of such tract meets any or all of the
following disposal criteria:
(A) Such The tract was acquired for a specific purpose and the
tract is no longer required for that or any other state purpose; or
(B) Disposal of such the tract serves important public
objectives including, but not limited to, expansion of communities
and economic development which cannot be achieved on lands other
than public lands and which clearly outweigh other public
objectives and values including, but not limited to, recreation and
scenic values which would be served by maintaining such the tract
in state ownership; or
(C) Such The tract, because of its location or other
characteristics, is difficult and uneconomic to manage as part of
the public lands and is not suitable for management by another
state department or agency.
There is hereby created in the state treasury a special public
land corporation fund into which shall be paid all proceeds from
public land sales and exchanges. The corporation may acquire
public lands from use of the payments made to the fund, along with
any interest accruing to said the fund. The corporation shall
report annually, just prior to the beginning of the regular session
of the Legislature, to the finance committees of the Legislature on
the financial condition of the special fund;
(4) Sell, purchase or exchange lands or stumpage for the
purpose of consolidating lands under state or federal government
administration subject to the disposal criteria specified in
subdivision (3) of this section;
(5) Negotiate and effect loans or grants from the government
of the United States or any agency thereof for acquisition and development of such lands as may be authorized by law to be
acquired for public use;
(6) Expend the income from the use and development of public
lands for the following purposes:
(A) Liquidate obligations incurred in the acquisition,
development and administration of such lands, until all such
obligations have been fully discharged;
(B) Purchase, develop, restore and preserve for public use,
sites, structures, objects and documents of prehistoric,
historical, archaeological, recreational, architectural and
cultural significance to the state of West Virginia; and
(C) Obtain grants or matching moneys available from the
government of the United States or any of its instrumentalities for
prehistoric, historic, archaeological, recreational, architectural
and cultural purposes;
(7) The corporation shall have the authority to designate
Designate lands, to which it has title, for development and
administration for the public use including recreation, wildlife
stock grazing, agricultural rehabilitation and homesteading or
other conservation activities;
(8) The corporation shall have authority to enter Enter into
leases as a lessor for the development and extraction of minerals,
including coal, oil, gas, sand and or gravel, except as otherwise
circumscribed herein: Provided, That leases for the development
and extraction of minerals shall be made in accordance with the
provisions of sections five and six of this article. The corporation shall reserve title and ownership to the mineral rights
in all cases;
(9) It shall convey Convey, assign or allot lands to the
title or custody of proper departments or other agencies of state
government for administration and control within the functions of
such departments or other agencies as provided by law;
(10) The corporation shall make Make proper lands available
for the purpose of cooperating with the government of the United
States in the relief of unemployment and hardship or for any other
public purpose.
(b) The corporation shall report annually to the Legislature
on its public land holdings and all its leases, its financial
condition and its operations and shall make such recommendations to
the Legislature as deemed proper concerning the acquisition,
leasing, development, disposition and use of public lands.
(c) All state agencies, institutions, divisions and
departments shall make an inventory of the public lands of the
state as may be by law specifically allocated to and used by each
and provide to the corporation a list of such public lands and
minerals, including their current use, intended use or best use to
which such land lands and minerals may be put: Provided, That the
state department division of highways need not provide such the
inventory of public lands allocated to and used by it. The
inventory shall identify those parcels of land which have no
present or foreseeable useful purpose to the state of West
Virginia. The inventory shall be submitted annually to the corporation by the first day of August. one thousand nine hundred
eighty-nine The corporation shall compile such the inventory of
all public lands and minerals and report annually to the
Legislature by no later than the first day of January one thousand
nine hundred ninety, on its public land holdings lands and minerals
and the land holdings lands and minerals of the other agencies,
institutions, divisions or departments of this state which are
required to report their holdings to the corporation as set forth
hereinabove in this subsection and its financial condition and its
operations.
During the continuance of the Blennerhassett historical park
commission, the public land corporation and its members shall
consult with and keep the said Blennerhassett historical park
commission fully informed as to any official action to be taken or
proposed to be taken pursuant to this act regarding or affecting
Blennerhassett Island and its prehistoric, historic,
archaeological, architectural, cultural and recreational
significance or development or any of the powers and duties of the
Blennerhassett historical park commission.
§20-1A-5. Public land corporation to hold public hearing before
sale, lease, exchange or transfer of land or minerals.
(a) Prior to any final decision of any state agency to sell,
lease as a lessor, exchange or transfer land or minerals title to
which is vested in the public land corporation pursuant to section
one of this article, the public land corporation shall:
(1) Prepare and reduce to writing the reasons and supporting
data regarding such the sale, lease, or exchange or transfer of
land or minerals. The written reasons required under this section
shall be available for public inspection at the office of the
county clerk at the county courthouse of each county in which the
affected land is lands or minerals are located during the two
successive weeks before the date of the public hearing required by
this section;
(2) Provide for a public hearing to be held at a reasonable
time and place within each county in which the affected land is
lands or minerals are located to allow interested members of the
public to attend the hearing without undue hardship. Members of
the public may be present, submit statements and testimony and
question the corporation's representative appointed pursuant to
this section;
(3) Not less than thirty days prior to such the public
hearing, provide notice to all members of the Legislature, to the
head of the governing body of any political subdivision having
zoning or other land use regulatory responsibility in the
geographic area within which the public lands or minerals are
located and to the head of any political subdivision having
administrative or public services responsibility in the geographic
area within which the lands or minerals are located;
(4) Cause to be published a notice of the required public
hearing. The notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area shall be
each county in which the affected land is lands or minerals are
located. The public hearing shall be held no earlier than the
fourteenth successive day and no later than the twenty-first
successive day following the first publication of the notice. The
notice shall contain the time and place of the public hearing along
with a brief description of the affected land lands or minerals;
(5) Cause a copy of the required notice to be posted in a
conspicuous place at the affected land for members of the public to
observe. Such The notice shall remain posted for two successive
weeks prior to the date of the public hearing;
(6) Appoint a representative of the corporation who shall
conduct the required public hearing. The corporation's
representative shall have full knowledge of all the facts and
circumstances surrounding the proposed sale, lease, exchange or
transfer. The representative of the corporation conducting the
public hearing shall make the results of the hearing available to
the corporation for its consideration prior to the board making
final decisions regarding the affected lands or minerals. The
representative of the corporation shall make a report of the public
hearing available for inspection by the public or, upon written
request of any interested person, provide a written copy thereof
and to all individuals previously receiving written notice of the
hearing within thirty days following the public hearing; and
(7) If the evidence at the public hearing establishes by a
preponderance that the appraisal provided for in subsection (c), section four of this article does not reflect the true, fair market
value, the public land corporation shall cause another appraisal to
be made. If the evidence at the public hearing establishes by a
preponderance that the sale or exchange of land sale, lease,
exchange or transfer of lands or minerals does not meet the
criteria set forth in subdivision three, section three of this
article, the public land corporation shall may not proceed with the
sale or exchange of said land sale, lease, exchange or transfer of
lands or minerals without judicial approval.
The representative of the corporation conducting the public
hearing shall make the results of the hearing available to the
corporation for its consideration prior to the board making
decisions regarding the affected lands.
(b) No sale, exchange or transfer of land subject to the
provisions of this section may be made The corporation may not
sell, lease as lessor, exchange or transfer lands or minerals
before the thirtieth successive day following the public hearing
required by this section, but in no event shall may the sale,
lease, exchange or transfer of such lands or minerals be made prior
to fifteen days after the report of the public hearings are made
available to the public in general.
(c) If the corporation authorizes the staff to proceed with
consideration of the lease or sale under the terms of this article,
all requirements of this section shall be completed within one year
of date of the authorization by the corporation.
§20-1A-6. Competitive bidding and notice requirements before the
development of minerals.
(a) The corporation may enter into a lease or contract for the
development of minerals, gas or oil including coal, oil, gas, sand
or gravel, on or under lands in which the corporation holds any
right, title or interest: Provided, That no lease or contract may
be entered into for the extraction and removal of minerals by
surface mining or auger mining of coal.
(b) With the exception of deep mining operations which are
already in progress and permitted as of the effective date of this
article fifth day of July, one thousand nine hundred eighty-nine,
the extraction of coal by deep mining methods under state forests
or wildlife refuges may be permitted only if such the lease or
contract provides that no entries, portals, air shafts or other
incursions upon and into said the land incident to said the mining
operations may be placed or constructed upon said the lands or
within three thousand feet of the its boundary. thereof (c) Any
lease or contract entered into shall reserve to the state all
rights to subjacent surface support with which the state is seized
or possessed of at the time of such lease or contract.
(d) Notwithstanding any other provisions of the code to the
contrary, nothing herein shall may be construed to permit
extraction of minerals oil or gas by any method from, on or under
any state park or state recreation area, nor the extraction of
minerals by strip or auger mining upon any state forest or wildlife
refuge.
(e) The corporation may enter into a lease or contract for the
development of minerals oil or gas where such the lease or contract
is not prohibited by any other provisions of this code, only after
receiving sealed bids therefor, after notice by publication as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code. The area for such
publication shall be each county in which such lands the minerals
are located.
(f) The minerals oil or gas so advertised may be leased or
contracted for development at not less than the fair market value,
as determined by an appraisal made by an independent person or firm
chosen by the corporation, to the highest responsible bidder, who
shall give bond for the proper performance of the contract or lease
as the corporation shall designate but designates: Provided, That
the corporation shall have the right to may reject any and all bids
and to readvertise for bids.
(g) If the foregoing provisions of this section have been
complied with, and no bid equal to or in excess of the fair market
value of such natural resources is received, the corporation may,
at any time during a period of six months after the opening of the
bids, lease or contract for the development of such natural
resources in such manner as it is deemed appropriate the minerals,
but the lease or contract price shall may not be less than the fair
market value. of such natural resources advertised
(h) Any lease or contract for the development of minerals
entered into after the effective date of this section shall be made in accordance with the provisions of this section and section five
of this article.
_____(i) The corporation will consult with the office of the
attorney general to assist the corporation in carrying out the
provisions of this section.
_____(j) The corporation shall consult with an independent mineral
consultant and any other competent third parties with experience
and expertise in the leasing of minerals to assist the corporation
in carrying out the provisions of this section, including
determining fair market value and negotiating terms and conditions
of mineral leases.
_____(k) Once the lessee commences the production of minerals and
royalties become due and are paid to the public land corporation,
the public land corporation shall hire an independent auditing firm
to periodically review the lessee's books and accounts for
compliance of payment of appropriate royalties due the public land
corporation for its minerals as produced under the lease agreement.
The bill (Eng. Com. Sub. for H. B. No. 2512), as amended, was
then ordered to third reading.
The Senate proceeded to the tenth order of business.
Eng. House Bill No. 2441, Increasing the minimum subscribed
capital stock and capital surplus for new bank charter
applications.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Eng. Com. Sub. for House Bill No. 2443, Relating to the
assessment of banking institutions.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Rowe, Unger, Boley and Kessler.
Thereafter, at the request of Senator Hunter, and by unanimous
consent, the remarks by Senator Unger were ordered printed in the
Appendix to the Journal.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2910, Establishing an "Amber
Alert" system to be utilized to rapidly disseminate information
with regard to abducted and missing children.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2910) contained in
the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to
second reading.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 5:30
p.m. today.