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Chapter 11     Entire Code
‹ Chapter 10  |  Chapter 11A › Printer Friendly Versions
Chapter 11  |  Article 11 - 21  |  Section 9A

1 - SUPERVISION

1A - APPRAISAL OF PROPERTY

1B - ADDITIONAL REVIEW OF PROPERTY

1C - FAIR AND EQUITABLE PROPERTY VA

2 - ASSESSORS

3 - ASSESSMENTS GENERALLY

4 - ASSESSMENT OF REAL PROPERTY

5 - ASSESSMENT OF PERSONAL PROPERTY

6 - ASSESSMENT OF PUBLIC SERVICE BU

6A - POLLUTION CONTROL FACILITIES T

6B - HOMESTEAD PROPERTY TAX EXEMPTI

6C - SPECIAL METHOD FOR APPRAISING

6D - ALTERNATIVE-FUEL MOTOR VEHICLE

6E - SPECIAL METHOD FOR VALUATION O

6F - SPECIAL METHOD FOR APPRAISING

6G - ASSESSMENT OF INTERSTATE PUBLI

6H - VALUATION OF SPECIAL AIRCRAFT

6I - SENIOR CITIZEN PROPERTY TAX PA

6J - SPECIAL METHOD FOR VALUATION O

6K - ASSESSMENT OF INDUSTRIAL PROPE

7 - CAPITATION TAXES

7D - VOLUNTARY TRANSFER FROM TEACHE

8 - LEVIES

8A - COUNTY-WIDE LEVY FOR DISTRICT

9 - CRIMES AND PENALTIES

10 - WEST VIRGINIA TAX PROCEDURE A

10A - WEST VIRGINIA OFFICE OF TAX

10B - TAX PENALTY AND ADDITIONS TO

10C - BENEFITS-FUNDED PURCHASING

10D - TAX AMNESTY PROGRAM

10E - TAX SHELTER VOLUNTARY COMPLI

11 - ESTATE TAXES

11A - INTERSTATE COMPROMISE OF INH

11B - INTERSTATE ARBITRATION OF IN

12 - BUSINESS REGISTRATION TAX

12A - ANNUAL TAX ON INCOMES OF CER

12B - MINIMUM SEVERANCE TAX ON COA

12C - CORPORATE LICENSE TAX

12D - ESTABLISHMENT OF OFFICE OF B

13 - BUSINESS AND OCCUPATION TAX

13A - SEVERANCE AND BUSINESS PRIVI

13AA - COMMERCIAL PATENT INCENTIVE

13B - TELECOMMUNICATIONS TAX

13BB - WEST VIRGINIA INNOVATIVE M

13C - BUSINESS INVESTMENT AND JOBS

13CC - ENERGY INTENSIVE INDUSTRIAL

13D - TAX CREDITS FOR INDUSTRIAL E

13E - BUSINESS AND OCCUPATION TAX

13F - BUSINESS AND OCCUPATION TAX

13G - TAX CREDIT FOR REDUCING TELE

13H - BUSINESS AND OCCUPATION TAX

13I. TAX CREDIT FOR EMPLOYING FORM

13J - NEIGHBORHOOD INVESTMENT PROG

13K - TAX CREDIT FOR AGRICULTURAL

13L - THE NATURAL GAS INDUSTRY JOB

13M - TAX CREDIT FOR NEW VALUE-ADD

13N - TAX CREDIT FOR NEW STEEL MAN

13O - TAX CREDIT FOR NEW ALUMINUM

13P - TAX CREDIT FOR MEDICAL LIABI

13Q - ECONOMIC OPPORTUNITY TAX CRE

13R - STRATEGIC RESEARCH AND DEVEL

13S - MANUFACTURING INVESTMENT TAX

13T - TAX CREDIT FOR COMBINED CLAI

13U - HIGH-GROWTH BUSINESS INVESTM

13V - WORKERS' COMPENSATION DEBT R

13W - APPRENTICESHIP TRAINING TAX

13X - WEST VIRGINIA FILM INDUSTRY

13Y THE WEST VIRGINIA MANUFACTURI

13Y - THE WEST VIRGINIA MANUFACTUR

13Z - RESIDENTIAL SOLAR ENERGY TAX

14 - GASOLINE AND SPECIAL FUEL EXC

14A - MOTOR CARRIER ROAD TAX

14B - INTERSTATE FUEL TAX AGREEMEN

14C - MOTOR FUEL EXCISE TAX

15 - CONSUMERS SALES AND SERVICE T

15A - USE TAX

15B - STREAMLINED SALES AND USE TA

16 - NONINTOXICATING BEER

17 - TOBACCO PRODUCTS EXCISE TAX A

18 - EXCISE TAX ON USE, CONSUMPTIO

19 - SOFT DRINKS TAX

20 - RECIPROCAL ENFORCEMENT

21 - PERSONAL INCOME TAX
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22 - EXCISE TAX ON PRIVILEGE OF TR

23 - BUSINESS FRANCHISE TAX

24 - CORPORATION NET INCOME TAX

25 - TAX RELIEF FOR ELDERLY HOMEOW

26 - HEALTH CARE PROVIDER MEDICAID

27 - HEALTH CARE PROVIDER TAXES

WVC 11 - CHAPTER 11. TAXATION.
ARTICLE 21 - PERSONAL INCOME TAX ARTICLE 21. PERSONAL INCOME TAX. WVC 11-21-1 §11-21-1. Legislative findings.

The Legislature hereby finds and declares that the adoption by this state for its personal income tax purposes of the provisions of the laws of the United States relating to the determination of income for federal income tax purposes will (1) simplify preparation of state income tax returns by taxpayers, (2) improve enforcement of the state income tax through better use of information obtained from federal income tax audits, and (3) aid interpretation of the state tax law through increased use of federal judicial and administrative determinations and precedents.

The Legislature does, therefore, declare that this article be construed so as to accomplish the foregoing purposes.

WVC 11-21-2 §11-21-2. Short title; arrangement and classification.

This article may be cited as the "West Virginia Personal Income Tax Act." No inference, implication of presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this article, nor shall the descriptive matter or headings relating to any part, section, subsection, or paragraph be given any legal effect.

WVC 11 - 21 - 3 §11-21-3. Imposition of tax; persons subject to tax.
(a) Imposition of tax.

(1) Primary tax. -- A tax determined in accordance with the rates hereinafter set forth in this article is hereby imposed for each taxable year on the West Virginia taxable income of every individual, estate and trust.

(2) Minimum tax. -- In addition to the primary tax imposed by this section, there is imposed a minimum tax, which shall be the excess, if any, by which an amount equal to twenty-five percent of any federal minimum tax or alternative minimum tax for the taxable year exceeds the primary tax imposed by this section for the taxable year.

(3) Effective date. -- The minimum tax herein imposed and made effective on and after April 1, 1983, shall expire, be nullified and of no further force or effect whatsoever for tax years beginning on and after January 1, 2010.

(b) Partners and partnerships. -- A partnership as such shall not be subject to tax under this article. Persons carrying on business as partners shall be liable for tax under this article only in their separate or individual capacities.

(c) Associations taxable as corporations. -- An association, trust or other unincorporated organization which is taxable as a corporation for federal income tax purposes, shall not be subject to tax under this article.

(d) Exempt trusts and organizations. -- A trust or other unincorporated organization which by reason of its purposes or activities is exempt from federal income tax shall be exempt from tax under this article (regardless of whether subject to federal income tax on unrelated business taxable income).

(e) Cross references. -- For definitions of West Virginia taxable income of:

(1) Resident individual, see section eleven.

(2) Resident estate or trust, see section eighteen.

(3) Nonresident individual, see section thirty.

(4) Nonresident estate or trust, see section thirty-eight.

WVC 11-21-4 §11-21-4. Rate of tax -- Taxable years ending prior to January 1, 1963.

(a) Rate of tax on individuals. -- The tax imposed by section three of this article on the West Virginia taxable income of every individual (other than a head of a household to whom subsection (b) applies) and upon the West Virginia taxable income of every estate and trust shall be equal to six per centum of the federal income tax which would be imposed on an identical amount of federal taxable income under subsection (a) of section one of the United States Internal Revenue Code of 1954.

(b) Rate of tax on heads of households. -- The tax imposed by section three of this article on the West Virginia taxable income of every individual who is a head of a household in the determination of his federal income tax for the taxable year shall be equal to six per centum of the federal income tax which would be imposed upon an identical amount of federal taxable income under subsection (b) of section one of the United States Internal Revenue Code of 1954.

(c) Rates of tax in case of joint return or return of surviving spouse. -- In the case of a joint return of a husband and wife, the tax imposed by section three of this article on the West Virginia taxable income shall be equal to six per centum of twice the tax which would be imposed upon half the identical amount of federal taxable income under subsection (a) of section one of the United States Internal Revenue Code of 1954. For purposes of this subsection of this article and for the purposes of section five of this article, the return of an individual who is entitled to file his federal income tax return for the taxable year as a surviving spouse shall be treated as a joint return of a husband and wife.

(d) Effective date. -- The provisions of this section shall be given effect in determining the rate of tax imposed by this article for all taxable years or portions thereof ending prior to the first day of January, one thousand nine hundred sixty-three.

WVC 11-21-4a §11-21-4a. Rate of tax -- Taxable years beginning on or after January 1, 1963, and before January 1, 1970.

(a) Rate of tax on individuals, heads of households, estates and trusts. -- The tax imposed by section three of this article on the West Virginia taxable income of every individual, every individual who is a head of a household in the determination of his federal income tax for the taxable year, and every estate and trust shall be determined in accordance with the following table:

(FORM OMITTED)

(b) Rate of tax in case of joint return or return of surviving spouse. -- In the case of a joint return of a husband and wife and the return of an individual who is entitled to file his federal income tax return for the taxable year as a surviving spouse, the tax imposed by section three of this article on the West Virginia taxable income shall be determined in accordance with the following table:

(FORM OMITTED)

(c) Applicability of this section. -- The provisions of this section shall be applicable in determining the rate of tax imposed by this article for all taxable years or portions thereof beginning on or after the first day of January, one thousand nine hundred sixty-three, and before the first day of January, one thousand nine hundred seventy.

WVC 11-21-4b §11-21-4b. Same -- Taxable years beginning on or after January 1, 1970, and before January 1, 1971.

(a) Rate of tax on individuals, heads of households, estates and trusts. -- The tax imposed by section three of this article on the West Virginia taxable income of every individual, every individual who is a head of a household in the determination of his federal income tax for the taxable year, and every estate and trust shall be determined in accordance with the following table:

(FORM OMITTED)

(b) Rate of tax in case of joint return or return of surviving spouse. -- In the case of a joint return of a husband and wife and the return of an individual who is entitled to file his federal income tax return for the taxable year as a surviving spouse, the tax imposed by section three of this article on the West Virginia taxable income shall be determined in accordance with the following table:

(FORM OMITTED)

(c) Applicability of this section. -- The provisions of this section shall be applicable in determining the rate of tax imposed by this article for all taxable years or portions thereof beginning on or after the first day of January, one thousand nine hundred seventy, and before the first day of January, one thousand nine hundred seventy-one.

WVC 11-21-4c §11-21-4c. Rate of tax -- Taxable periods beginning on or after January 1, 1971 and ending before April 1, 1983.

(a) Rate of tax on individuals, heads of households, estates and trusts. -- The tax imposed by section three of this article on the West Virginia taxable income of every individual, every individual who is a head of a household in the determination of his federal income tax for the taxable year, and every estate and trust shall be determined in accordance with the following table:

(FORM OMITTED)

(b) Rate of tax in case of joint return or return of surviving spouse. -- In the case of a joint return of a husband and wife and the return of an individual who is entitled to file his federal income tax return for the taxable year as a surviving spouse, the tax imposed by section three of this article on the West Virginia taxable income shall be determined in accordance with the following table:

(FORM OMITTED)

(c) Applicability of this section. -- The provisions of this section shall be applicable in determining the rate of tax imposed by this article for all taxable years or portions thereof beginning on or after the first day of January, one thousand nine hundred seventy-one, and ending before the first day of April, one thousand nine hundred eighty-three.

WVC 11-21-4d §11-21-4d. Rate of tax -- Taxable periods beginning on or after April 1, 1983.

(a) Rate of tax on individuals, estates and trusts. -- The tax imposed by section three of this article on the West Virginia taxable income of every individual, and every estate and trust shall be determined in accordance with the following table:

(FORM OMITTED)

(b) Rate of tax on heads of households. -- The tax imposed by section three of this article, on the West Virginia taxable income of every individual who is a head of a household in the determination of his federal income tax for the taxable year, shall be determined in accordance with the following table:

(FORM OMITTED)

(c) Rate of tax in case of joint return or return of surviving spouse. -- In the case of a joint return of a husband and wife and the return of an individual who is entitled to file his federal income tax return for the taxable year as a surviving spouse, the tax imposed by section three of this article on the West Virginia taxable income shall be determined in accordance with the following table:

(FORM OMITTED)

(d) Applicability of this section. -- The provisions of this section shall be applicable in determining the rate of tax imposed by this article for all taxable periods or portions thereof beginning on or after the first day of April, one thousand nine hundred eighty-three.

WVC 11-21-4e §11-21-4e. Rate of tax -- Taxable years beginning on or after January 1, 1987.

(a) Rate of tax on individuals (except married individuals filing separate returns), individuals filing joint returns, heads of households, estates and trusts. -- The tax imposed by section three of this article on the West Virginia taxable income of every individual (except married individuals filing separate returns); every individual who is a head of a household in the determination of his or her federal income tax for the taxable year; every husband and wife who file a joint return under this article; every individual who is entitled to file his or her federal income tax return for the taxable year as a surviving spouse; and every estate and trust shall be determined in accordance with the following table:

If the West Virginia

taxable income is:The tax is:

Not over $10,0003% of the taxable income

Over $l0,000 but not$300.00 plus 4% of excess

over $25,000over $10,000

Over $25,000 but not$900.00 plus 4.5% of excess

over $40,000over $25,000

Over $40,000 but not$1,575.00 plus 6% of excess

over $60,000over $40,000

Over $60,000 $2,775.00 plus 6.5% of excess

over $60,000

(b) Rate of tax on married individuals filing separate returns. -- In the case of husband and wife filing separate returns under this article for the taxable year, the tax imposed by section three of this article on the West Virginia taxable income of each spouse shall be determined in accordance with the following table:

If the West Virginia

taxable income is:The tax is:

Not over $5,0003% of the taxable income

Over $5,000 but not$l50.00 plus 4% of excess

over $l2,500over $5,000

Over $l2,500 but not$450.00 plus 4.5% of

over $20,000excess over $l2,500

Over $20,000 but not$787.50 plus 6% of excess

over $30,000over $20,000

Over $30,000$l,387.50 plus 6.5% of

excess over $30,000

(c) Applicability of this section. -- The provisions of this section, as amended by this act, shall be applicable in determining the rate of tax imposed by this article for all taxable years beginning after the thirty-first day of December, one thousand nine hundred eighty-six, and shall be in lieu of the rates of tax specified in section four-d of this article.

WVC 11-21-4f §11-21-4f. Effect of rate changes during taxable year.

(a) If any rate of tax imposed by this article changes to become effective after the thirty-first day of December, of a calendar year, and if the taxable year includes the effective date of the change of rate (unless that date is the first day of the taxable year) then: (1) Tentative taxes shall be computed by applying the rate for the period before the effective date of the change of rate, and the rate for the period on and after such date, to the taxable income for the entire taxable year; and (2) the tax for such taxable year shall be the sum of that proportion of each tentative tax which the number of months in each period bears to the number of months in the entire taxable year.

(b) For purposes of subsection (a):

(1) If the rate changes for taxable years "beginning after" or "ending after" a certain date, the following day shall be considered the effective date of the change; and

(2) If a rate changes for taxable years "beginning on or after" a certain date, that date shall be considered the effective date of the change of rate.

WVC 11-21-5 §11-21-5. Optional tax for certain resident individuals.

(a) General. -- The tax commissioner may promulgate tables enabling resident individuals who meet the conditions of this section to compute their taxes under section three of this article on the basis of their federal adjusted gross incomes.

(b) Tables. -- The tables promulgated under this section shall show the amounts of tax due under section three of this article to the nearest two dollars (or such smaller amount as the tax commissioner may establish).

(c) Conditions for optional computation. -- The optional tax computation under this section may be elected only if all the following conditions are satisfied by the taxpayer, or by both husband and wife whose federal income tax is determined on a joint return:

(1) The taxpayer has elected to take the standard deduction for federal income tax purposes or to pay the federal optional tax.

(2) The taxpayer has no items of income or deduction described in section twelve (b) or (d) as an individual, as a partner, or as a beneficiary of an estate or trust.

(3) The taxpayer's federal income tax is not reduced by operation of:

(a) The federal alternative tax on long term capital gains, or

(b) A federal provision which has the effect of taxing income of the taxable year as if it were partly or wholly income of a prior taxable year.

(4) The taxpayer satisfies such other conditions, not inconsistent with the purposes of this section, as may be specified by the tax commissioner.

(d) Manner of election. -- The election by a taxpayer to compute his tax under this section shall be made under regulations of the tax commissioner.

(e) Husband and wife computing West Virginia taxes separately. -- (1) A husband or wife who files a separate federal return may elect the optional tax computation under this section only if the other spouse's tax under this article, if any, is determined under this section.

(2) A husband and wife who file a joint federal return may not elect the optional tax computation under this section if they elect to determine their West Virginia taxes separately.

WVC 11-21-6 §11-21-6. Accounting periods and methods.

(a) Accounting periods. -- A taxpayer's taxable year under this article shall be the same as his taxable year for federal income tax purposes.

(b) Change of accounting periods. -- If a taxpayer's taxable year is changed for federal income tax purposes, his taxable year for purposes of this article shall be similarly changed. If a taxable year of less than twelve months results from a change of taxable year, the West Virginia standard deduction, the West Virginia personal exemptions and the credits allowed under section eight shall be prorated under regulations of the tax commissioner.

(c) Accounting methods. -- A taxpayer's method of accounting under this article shall be the same as his method of accounting for federal income tax purposes. In the absence of any method of accounting for federal income tax purposes, West Virginia taxable income shall be computed under such method as in the opinion of the tax commissioner clearly reflects income.

(d) Change of accounting methods. -- (1) If a taxpayer's method of accounting is changed for federal income tax purposes, his method of accounting for purposes of this article shall be similarly changed.

(2) If a taxpayer's method of accounting is changed, other than from an accrual to an installment method, any additional tax which results from adjustments determined to be necessary solely by reason of the change shall not be greater than if such adjustments were rateably allocated and included for the taxable year of the change and the preceding taxable years, not in excess of two, during which the taxpayer used the method of accounting from which the change is made.

(3) If a taxpayer's method of accounting is changed from an accrual to an installment method, any additional tax for the year of such change of method and for any subsequent year which is attributable to the receipt of installment payments properly accrued in a prior year shall be reduced by the portion of tax for any prior taxable year attributable to the accrual of such installment payments, in accordance with regulations of the tax commissioner.

WVC 11-21-7 §11-21-7. Resident and nonresident defined.
(a) Resident individual. -- Resident individual means an individual:

(1) Who is domiciled in this state, unless he maintains no permanent place of abode in this state, maintains a permanent place of abode elsewhere, and spends in the aggregate not more than thirty days of the taxable year in this state, or

(2) Who is not domiciled in this state but maintains a permanent place of abode in this state and spends in the aggregate more than one hundred eighty-three days of the taxable year in this state.

(b) Nonresident individual. -- A nonresident individual means an individual who is not a resident.

(c) Resident estate or trust. -- A resident estate or trust means:

(1) The estate of a decedent who at his death was domiciled in this state,

(2) A trust created by will of a decedent who at his death was domiciled in this state, or

(3) A trust created by, or consisting of property of, a person domiciled in this state.

(d) Nonresident estate or trust. -- A nonresident estate or trust means an estate or trust which is not a resident.

(e) Cross reference. -- For effect of change of an individual's resident status, see section fifty-four.

WVC 11-21-8 §11-21-8. Credits against tax.

(a) Business and occupation tax credit.--A credit shall be allowed against the tax imposed by section three of this article equal to the amount of the liability of the taxpayer for the taxable year for any tax imposed under article thirteen, chapter eleven of this code: Provided, That the amount of such business and occupation tax credit shall not exceed the portion of the tax imposed by this article which is attributable to the West Virginia taxable income derived by the taxpayer for the taxable year from the business or occupation with respect to which said tax under article thirteen was imposed. In case the West Virginia taxable income of a taxpayer includes income from a partnership, estate, trust or a corporation electing to be taxed under subchapter S of the Internal Revenue Code of 1954, as amended, a part of any tax liability of the partnership, estate, trust or corporation under said article thirteen shall be allowed to the taxpayer, in computing the credit provided for by this section, in an amount proportionate to the income of such partnership, estate, trust or corporation, which is included in the taxpayer's West Virginia taxable income.

For purposes of this section, the tax imposed under article thirteen, chapter eleven of this code shall be the amount of the liability of the taxpayer for such tax under said article thirteen computed without reduction for the tax credit for industrial expansion or revitalization allowed for such year.

(b) Severance tax credit.--On and after the first day of July, one thousand nine hundred eighty-seven, a credit shall be allowed against the tax imposed by section three of this article equal to the amount of the liability of the taxpayer for the taxable year for any tax imposed under article thirteen-a, chapter eleven of this code: Provided, That the amount of such severance tax credit shall not exceed the portion of the tax imposed by this article which is attributable to the West Virginia taxable income derived by the taxpayer for the taxable year from the activities with respect to which said tax under article thirteen-a was imposed. In case the West Virginia taxable income of a taxpayer includes income from a partnership, estate, trust or a corporation electing to be taxed under subchapter S of the Internal Revenue Code of 1954, as amended, a part of any tax liability of the partnership, estate, trust or corporation under said article thirteen-a shall be allowed to the taxpayer, in computing the credit provided for by this section, in an amount proportionate to the income of such partnership, estate, trust or corporation, which is included in the taxpayer's West Virginia taxable income.

(c) Expiration of credit.--The credit authorized in subsection (b) of this section shall expire and not be authorized or allowed for any taxable year beginning on or after the first day of October, one thousand nine hundred ninety.

WVC 11-21-8a §11-21-8a. Credit for qualified rehabilitated buildings investment.

A credit against the tax imposed by the provisions of this article shall be allowed as follows:

Certified historic structures. -- For certified historic structures, the credit is equal to ten percent of qualified rehabilitation expenditures as defined in §47(c)(2), Title 26 of the United States Code, as amended. This credit is available for both residential and nonresidential buildings located in this state, that are reviewed by the West Virginia division of culture and history and designated by the national park service, United States department of the interior as "certified historic structures," and further defined as a "qualified rehabilitated building," as defined under §47(c)(1), Title 26 of the United States Code, as amended.

WVC 11-21-8b §11-21-8b. Definitions.

(a) "Certified historic structure" means any building located in this state that is listed individually in the national register of historic places or located in a registered historic district, reviewed by the West Virginia division of culture and history, and certified by the national park service as being of historic significance to the district.

(b) "Certified rehabilitation" means any rehabilitation of a certified historic building that is reviewed by the West Virginia division of culture and history, and certified by the national park service as being consistent with the historic character of the property and, where applicable, the district in which it is located.

(c) "Historic district" means any district that is listed in the national register of historic places or designated under a state or local statute which has been certified as containing criteria which will substantially achieve the purpose of preserving and rehabilitating buildings of significance to the district and which is certified as substantially meeting all of the requirements for listing of districts in the national register of historic places.

(d) "Historic preservation certification application" means the application forms published by the national park service, United States department of the interior, Parts 1, 2 and 3, form No. 10-168.

(e) "Secretary of the interior standards" means standards and guidelines adopted and published by the national park service, United States department of the interior, for rehabilitation of historic properties.

(f) "State historic preservation officer" means the state official designated by the governor pursuant to provisions in the national historic preservation act of 1966, as amended and further defined in section six, article one, chapter twenty-nine of this code.

WVC 11-21-8c §11-21-8c. Procedures.

Application and processing procedures for provisions of this section shall be the same as any required under provisions of Title 36 of the Code of Federal Regulations, Part 67, and Title 26 of the Code of Federal Regulations, Part 1. Successful completion of a historic preservation certification application automatically qualifies the applicant to be considered for tax credits under this section.

Successful certification by the national park service of a rehabilitation of a building that results in such building being a "qualified rehabilitated building" within the meaning of §47(c)(1), Title 26 of the United States Code, and amendments thereto, automatically qualifies the applicant for tax credits under this section. The state historic preservation officer's role in the application procedure shall be identical to that in Title 36 of the Code of Federal Regulations, Part 67, and Title 26 of the Code of Federal Regulations, Part 1.

WVC 11-21-8d §11-21-8d. Standards.

All standards including the secretary of the interior standards and provisions in Title 36 of the Code of Federal Regulations, Part 67, and Title 26 of the Code of Federal Regulations, Part 1, that apply to tax credits available from the United States government apply to this section as well.

WVC 11 - 21 - 8 E PART I. GENERAL.
§11-21-8e. Carryback, carryforward.
(a) Any unused portion of the credit for qualified rehabilitated buildings investment authorized by section eight-a of this article which may not be taken in the taxable year to which the credit applies qualifies for carryback and carryforward treatment subject to the identical general provisions under §39, Title 26 of the United States Code, as amended: Provided, That the amount of the credit taken in a taxable year shall in no event exceed the tax liability due for the taxable year.

(b) Effective for taxable years beginning on and after the first day of January, two thousand one, credits granted to an electing small business corporation (S corporation), limited partnership, general partnership, limited liability company or multiple owners of property shall be passed through to the shareholders, partners, members or owners, either pro rata or pursuant to an agreement among the shareholders, partners, members or owners documenting an alternative distribution method. The tax commissioner shall promulgate procedural rules in accordance with article three, chapter twenty-nine-a of this code that provide the method of reporting the alternative method of distribution authorized by this section.

WVC 11-21-8F §11-21-8f. Disclosure of credit applications and grants.

The tax commissioner shall require disclosure of information regarding credits granted pursuant to section eight-a of this article in accordance with the provisions of section five-s, article ten of this chapter.

WVC 11 - 21 - 8 G §11-21-8g. Credit for qualified rehabilitated residential

building investment.
(a) A credit against the tax imposed by the provisions of this article is allowed for residential certified historic structures. The credit is equal to twenty percent of eligible rehabilitation expenses in the rehabilitation of a certified historic structure. The credit is available for residential certified historic structures located in this state that are reviewed by the West Virginia division of culture and history and are determined to be listed on the national register of historic places either individually or as a contributing building within a historical district that is listed on the national register of historic places.

(b)(1) "Certified historic structure" means any building located in this state that is determined to be listed individually in the national register of historic places or located in a registered historic district, during the review by the West Virginia division of culture and history.

(2) "Certified rehabilitation" means any rehabilitation of a certified historic structure that is reviewed by the West Virginia division of culture and history, and is determined by the division of culture and history to be consistent with the historic character of the property and, where applicable, the district in which it is located.

(3) "Eligible rehabilitation expenses" means expenses incurred in the material rehabilitation of a certified historic structure and added to the property's basis for income tax purposes.

(4) "Historic district" means a group of buildings, structures or sites that taken together make up a coherent whole with similar historic or architectural meaning that is listed in the national register of historic places.

(5) "Historic preservation application" means application forms published by the national park service, United States department of the interior, Parts 1, 2 and 3, Form No. 1-168, or its successor, or comparable application forms prepared by the division of culture and history.

(6) "Material rehabilitation" means improvements, repairs, alterations or additions consistent with the "secretary of the interior's standards for rehabilitation," the actual cost of which amounts to at least twenty percent of the assessed value of a certified historic structure for ad valorem real estate tax purposes for the year before such rehabilitation expenses were incurred, exclusive of the assessed value of the land.

(7) "Residential certified historic structure" means any certified historic structure that is:

(A) Classified as Class II property for levy purposes pursuant to section five, article eight, chapter eleven of this code for the year in which the rehabilitation expenses are incurred; or

(B) Not classified as Class II property for levy purposes for the year in which the rehabilitation expenses are incurred but will satisfy the requirements for classification as Class II for real property assessment purposes pursuant to section five, article eight, chapter eleven of this code as of the first day of July of the year following the year in which the rehabilitation expenses are incurred.

(8) "Secretary of the interior standards" means standards and guidelines adopted and published by the national park service, United States department of the interior, for rehabilitation of historic properties.

(9) "State historic preservation officer" means the state official designated by the governor pursuant to provisions in the national historic preservation act of 1966, as amended and further defined in section six, article one, chapter twenty-nine of this code.

(c)(1) Application and processing procedures for provisions of this section shall be the same or substantially similar as any required under provisions of 36 C.F.R., Part 67, and to the extent applicable, 26 C.F.R., Part 1. Obtaining historic preservation certification by proper application automatically qualifies the applicant to be considered for tax credits under this section.

(2) The state historic preservation officer's role in the application procedure shall be identical, or substantially similar, to that in 36 C.F.R., Part 67 and 26 C.F.R., Part 1, to the extent applicable.

(d) All standards including the secretary of the interior standards and provisions in 36 C.F.R., Part 67 and 26 C.F.R., Part 1 that apply to tax credits available from the United States government apply to this section, except that the property eligible for the tax credit under this section may not be income producing property or property for which depreciation is allowed under 26 U.S.C. §168.

(e) If the amount of the credit for qualified rehabilitated residential building investment exceeds the taxpayer's tax liability for the taxable year to which the credit applies, the amount that exceeds the tax liability for the taxable year may be carried over for credits against the income taxes of the taxpayer in each of the ensuing five tax years or until the full credit is used, whichever occurs first. In no event may the amount of the credit taken in a taxable year exceed the tax liability due for the taxable year.

(f) The tax commissioner shall require disclosure of information regarding credits granted pursuant to this section in accordance with the provisions of section five-s, article ten of this chapter. The commissioner of the West Virginia division of culture and history may establish by rule the requirements to implement the credit for qualified rehabilitated residential building investment, including reasonable fees to defray the necessary expenses of administration of the credit.

(g) The credit authorized by this section is available for tax years beginning after the thirty-first day of December, one thousand nine hundred ninety-nine.

WVC 11 - 21 - 8 H §11-21-8h. Distribution, sale, transfer or assignment of qualified rehabilitated building investment tax credit.
(a) Any person eligible for credit under section eight-a or eight-g of this article may transfer, sell or assign any unused credits. Any person that transfers, sells or assigns any unused portion of a tax credit shall obtain a certificate of approval from the division of culture and history to transfer, sell or assign the stated amount of unused tax credit. The division of culture and history shall, by the last day of January each year provide in an electronic medium acceptable to the tax commissioner, a report listing the name of the transferor, the transferor's tax identification number, the name of the transferee, the transferee's tax identification number, the amount of credit transferred, sold or assigned and the date of the transfer, sale or assignment for each transfer, sale or assignment approved by the division of culture and history during the preceding calendar year.

(b) Credits granted to or acquired by a pass-through entity created or recognized under West Virginia law, or by multiple owners of property, if not transferred, sold or assigned, may be divided among the partners, members, shareholders or owners either according to the distributive shares of income of the entity or pursuant to an executed agreement among the partners, members, shareholders or owners if the agreement documents an alternate method of distribution, as provided in section eight-e of this article.

(c) Any transferee, purchaser or assignee of tax credits under this section may use the acquired credits to offset the tax imposed by this article or article twenty-four of this chapter upon the transferee, purchaser or assignee. To claim the tax credit, the transferee, purchaser or assignee shall attach the certificate obtained by the transferor, seller or assignor in accordance with subsection (a) of this section to the tax return against which the credit is claimed when the tax return is filed with the tax commissioner.

(d) If the credit allowed under this section exceeds the transferee's, purchaser's or assignee's tax due for the current tax year, the transferee, purchaser or assignee of the tax credit may carry forward the excess in accordance with section eight-e of this article, or section twenty-three-e, article twenty-four of this chapter when the transferee, purchaser or assignee is subject to the tax imposed by that article.

(e) The tax commissioner may promulgate procedural rules in accordance with article three, chapter twenty-nine-a of this code, necessary to provide procedures for the distribution, transfer, or assignment and the claiming of the credit allowed by sections eight-a and eight-g of this article.

WVC 11 - 21 - 9 §11-21-9. Meaning of terms.

     (a) Any term used in this article has the same meaning as when used in a comparable context in the laws of the United States relating to income taxes, unless a different meaning is clearly required. Any reference in this article to the laws of the United States means the provisions of the Internal Revenue Code of 1986, as amended, and any other provisions of the laws of the United States that relate to the determination of income for federal income tax purposes. All amendments made to the laws of the United States after January 1, 2012, but prior to January 3, 2013, shall be given effect in determining the taxes imposed by this article to the same extent those changes are allowed for federal income tax purposes, whether the changes are retroactive or prospective, but no amendment to the laws of the United States made on or after January 3, 2013, shall be given any effect.

     (b) Medical savings accounts. -- The term "taxable trust" does not include a medical savings account established pursuant to section twenty, article fifteen, chapter thirty-three of this code or section fifteen, article sixteen of said chapter. Employer contributions to a medical savings account established pursuant to said sections are not wages for purposes of withholding under section seventy-one of this article.

     (c) Surtax. -- The term "surtax" means the twenty percent additional tax imposed on taxable withdrawals from a medical savings account under section twenty, article fifteen, chapter thirty-three of this code and the twenty percent additional tax imposed on taxable withdrawals from a medical savings account under section fifteen, article sixteen of said chapter which are collected by the Tax Commissioner as tax collected under this article.

     (d) Effective date. -- The amendments to this section enacted in the year 2013 are retroactive to the extent allowable under federal income tax law. With respect to taxable years that began prior to January 1, 2014, the law in effect for each of those years shall be fully preserved as to that year, except as provided in this section.

     (e) For purposes of the refundable credit allowed to a low income senior citizen for property tax paid on his or her homestead in this state, the term "laws of the United States" as used in subsection (a) of this section means and includes the term "low income" as defined in subsection (b), section twenty-one of this article and as reflected in the poverty guidelines updated periodically in the federal register by the U.S. Department of Health and Human Services under the authority of 42 U.S.C. §9902(2). WVC 11-21-9a §11-21-9a. Pledge of credit or collateral by endorser, guarantor or accommodator not to constitute investment in borrower.

Any person pledging his credit or collateral as an endorser, guarantor, or accommodator to another person or corporation for the purpose of assisting another in obtaining credit shall not be, or construed to be, an investor in said borrower as to the amount so borrowed, nor shall any payments by said borrower on the indebtedness be, or construed to be, dividend to the endorser, guarantor or accommodator.

WVC 11-21-10 §11-21-10. Low income exclusion.
(a) Earned income exclusion. -- In the case of an eligible taxpayer, there shall be allowed as a deduction from federal adjusted gross income the amount of his or her earned income included therein, not to exceed ten thousand dollars, except that when a husband and wife file separate returns under this article this exclusion shall not exceed five thousand dollars per separate return: Provided, That for the taxable year beginning the first day of January, one thousand nine hundred ninety-six, the exclusion provided for in this section shall apply only to earned income received after the thirtieth day of June, one thousand nine hundred ninety-six, and the amount excluded shall not exceed fifty percent of the annual low income exclusion amounts set forth in this subsection.

(b) "Eligible taxpayer" defined. -- The term "eligible taxpayer" means:

(1) Any unmarried individual and any husband and wife filing a joint return under this article who has or have federal adjusted gross income of ten thousand dollars or less for the taxable year; or

(2) Any husband or wife filing a separate return under this article who has federal adjusted gross income of five thousand dollars or less.

(c) "Earned income" defined. --

(1) The term "earned income" means:

(A) Wages, salaries, tips, and other employee compensation; plus

(B) The amount of the taxpayer's net earnings from self-employment for the taxable year (within the meaning of Section 1402(a) of the Internal Revenue Code), but such net earnings shall be determined with regard to the deduction allowed to the taxpayer under Section 164 of the Internal Revenue Code.

(2) For purposes of this section:

(A) The earned income of an individual shall be computed without regard to any community property laws;

(B) No amount received as pension or annuity shall be taken into account; and

(c) No amount received for services provided by an individual while the individual is an inmate at a penal institution shall be taken into account.

(d) Taxable year must be full taxable year. -- Except in the case of a taxable year closed by reason of the death of the taxpayer, no credit shall be allowed under this section in the case of a taxable year covering a period of less than twelve months.

WVC 11-21-10A §11-21-10a. Credit for nonfamily adoption.
A one time credit against the tax imposed by the provisions of this article shall be allowed as follows:

Nonfamily adoptions. -- For nonfamily adoptions, the credit is equal to two thousand dollars which may be taken in the year of the adoption of each nonfamily child, whose age at adoption is under eighteen years. This credit may, at the option of the taxpayer, be taken over a period of three years.

For the purpose of this section and credit "nonfamily adoptions" means adoptions of a child or children by a taxpayer or taxpayers which child or children are not related to the taxpayer or taxpayers by blood or marriage.

WVC 11-21-11 §11-21-11. West Virginia taxable income of resident individual.

(a) General. -- The West Virginia taxable income of a resident individual shall be his West Virginia adjusted gross income less his West Virginia personal exemptions, as determined under this part.

(b) Husband and wife. -- (l) If the federal taxable income of husband and wife is determined on a separate federal return, their West Virginia taxable incomes shall be separately determined.

(2) If the federal taxable income of husband and wife is determined on a joint federal return, or if neither files a federal return:

(A) Their tax shall be determined on their joint West Virginia taxable income, or

(B) Separate taxes may be determined on their separate West Virginia taxable incomes if they so elect if they comply with the requirements of the tax commissioner in setting forth information on a single form or on separate forms, as may be required by the tax commissioner.

(3) If either husband or wife is a resident and the other is a nonresident, separate taxes shall be determined on their separate West Virginia taxable incomes on such single or separate forms as may be required by the tax commissioner, unless both elect to determine their joint West Virginia taxable income as if both were residents.

(c) Effective date. -- This section, as amended by this act, shall apply to all taxable years beginning after the thirty-first day of December, one thousand nine hundred eighty-six.

WVC 11 - 21 - 12 §11-21-12. West Virginia adjusted gross income of resident individual.
(a) General. -- The West Virginia adjusted gross income of a resident individual means his or her federal adjusted gross income as defined in the laws of the United States for the taxable year with the modifications specified in this section.

(b) Modifications increasing federal adjusted gross income. -- There shall be added to federal adjusted gross income unless already included therein the following items:

(1) Interest income on obligations of any state other than this state or of a political subdivision of any other state unless created by compact or agreement to which this state is a party;

(2) Interest or dividend income on obligations or securities of any authority, commission or instrumentality of the United States, which the laws of the United States exempt from federal income tax but not from state income taxes;

(3) Any deduction allowed when determining federal adjusted gross income for federal income tax purposes for the taxable year that is not allowed as a deduction under this article for the taxable year;

(4) Interest on indebtedness incurred or continued to purchase or carry obligations or securities the income from which is exempt from tax under this article, to the extent deductible in determining federal adjusted gross income;

(5) Interest on a depository institution tax-exempt savings certificate which is allowed as an exclusion from federal gross income under Section 128 of the Internal Revenue Code, for the federal taxable year;

(6) The amount of a lump sum distribution for which the taxpayer has elected under Section 402(e) of the Internal Revenue Code of 1986, as amended, to be separately taxed for federal income tax purposes; and

(7) Amounts withdrawn from a medical savings account established by or for an individual under section twenty, article fifteen, chapter thirty-three of this code or section fifteen, article sixteen of said chapter that are used for a purpose other than payment of medical expenses, as defined in those sections.

(c) Modifications reducing federal adjusted gross income. -- There shall be subtracted from federal adjusted gross income to the extent included therein:

(1) Interest income on obligations of the United States and its possessions to the extent includable in gross income for federal income tax purposes;

(2) Interest or dividend income on obligations or securities of any authority, commission or instrumentality of the United States or of the State of West Virginia to the extent includable in gross income for federal income tax purposes but exempt from state income taxes under the laws of the United States or of the State of West Virginia, including federal interest or dividends paid to shareholders of a regulated investment company, under Section 852 of the Internal Revenue Code for taxable years ending after the thirtieth day of June, one thousand nine hundred eighty-seven;

(3) Any amount included in federal adjusted gross income for federal income tax purposes for the taxable year that is not included in federal adjusted gross income under this article for the taxable year;

(4) The amount of any refund or credit for overpayment of income taxes imposed by this state, or any other taxing jurisdiction, to the extent properly included in gross income for federal income tax purposes;

(5) Annuities, retirement allowances, returns of contributions and any other benefit received under the West Virginia Public Employees Retirement System, the West Virginia State Teachers Retirement System and all forms of military retirement, including regular armed forces, reserves and National Guard, including any survivorship annuities derived therefrom, to the extent includable in gross income for federal income tax purposes: Provided, That notwithstanding any provisions in this code to the contrary this modification shall be limited to the first two thousand dollars of benefits received under the West Virginia Public Employees Retirement System, the West Virginia State Teachers Retirement System and, including any survivorship annuities derived therefrom, to the extent includable in gross income for federal income tax purposes for taxable years beginning after the thirty-first day of December, one thousand nine hundred eighty-six; and the first two thousand dollars of benefits received under any federal retirement system to which Title 4 U.S.C. §111 applies: Provided, however, That the total modification under this paragraph shall not exceed two thousand dollars per person receiving retirement benefits and this limitation shall apply to all returns or amended returns filed after the last day of December, one thousand nine hundred eighty-eight;

(6) Retirement income received in the form of pensions and annuities after the thirty-first day of December, one thousand nine hundred seventy-nine, under any West Virginia police, West Virginia Firemen's Retirement System or the West Virginia State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System or the West Virginia Deputy Sheriff Retirement System, including any survivorship annuities derived from any of these programs, to the extent includable in gross income for federal income tax purposes;

(7) (A) For taxable years beginning after the thirty-first day of December, two thousand, and ending prior to the first day of January, two thousand three, an amount equal to two percent multiplied by the number of years of active duty in the armed forces of the United States of America with the product thereof multiplied by the first thirty thousand dollars of military retirement income, including retirement income from the regular armed forces, reserves and National Guard paid by the United States or by this state after the thirty-first day of December, two thousand, including any survivorship annuities, to the extent included in gross income for federal income tax purposes for the taxable year.

(B) For taxable years beginning after the thirty-first day of December, two thousand two, the first twenty thousand dollars of military retirement income, including retirement income from the regular armed forces, reserves and National Guard paid by the United States or by this state after the thirty-first day of December, two thousand two, including any survivorship annuities, to the extent included in gross income for federal income tax purposes for the taxable year.

(C) In the event that any of the provisions of this subdivision are found by a court of competent jurisdiction to violate either the Constitution of this state or of the United States, or is held to be extended to persons other than specified in this subdivision, this subdivision shall become null and void by operation of law.

(8) Federal adjusted gross income in the amount of eight thousand dollars received from any source after the thirty-first day of December, one thousand nine hundred eighty-six, by any person who has attained the age of sixty-five on or before the last day of the taxable year, or by any person certified by proper authority as permanently and totally disabled, regardless of age, on or before the last day of the taxable year, to the extent includable in federal adjusted gross income for federal tax purposes: Provided, That if a person has a medical certification from a prior year and he or she is still permanently and totally disabled, a copy of the original certificate is acceptable as proof of disability. A copy of the form filed for the federal disability income tax exclusion is acceptable: Provided, however, That:

(i) Where the total modification under subdivisions (1), (2), (5), (6) and (7) of this subsection is eight thousand dollars per person or more, no deduction shall be allowed under this subdivision; and

(ii) Where the total modification under subdivisions (1), (2), (5), (6) and (7) of this subsection is less than eight thousand dollars per person, the total modification allowed under this subdivision for all gross income received by that person shall be limited to the difference between eight thousand dollars and the sum of modifications under subdivisions (1), (2), (5), (6) and (7) of this subsection;

(9) Federal adjusted gross income in the amount of eight thousand dollars received from any source after the thirty-first day of December, one thousand nine hundred eighty-six, by the surviving spouse of any person who had attained the age of sixty-five or who had been certified as permanently and totally disabled, to the extent includable in federal adjusted gross income for federal tax purposes: Provided, That:

(i) Where the total modification under subdivisions (1), (2), (5), (6), (7) and (8) of this subsection is eight thousand dollars or more, no deduction shall be allowed under this subdivision; and

(ii) Where the total modification under subdivisions (1), (2), (5), (6), (7) and (8) of this subsection is less than eight thousand dollars per person, the total modification allowed under this subdivision for all gross income received by that person shall be limited to the difference between eight thousand dollars and the sum of subdivisions (1), (2), (5), (6), (7) and (8) of this subsection;

(10) Contributions from any source to a medical savings account established by or for the individual pursuant to section twenty, article fifteen, chapter thirty-three of this code or section fifteen, article sixteen of said chapter, plus interest earned on the account, to the extent includable in federal adjusted gross income for federal tax purposes: Provided, That the amount subtracted pursuant to this subdivision for any one taxable year may not exceed two thousand dollars plus interest earned on the account. For married individuals filing a joint return, the maximum deduction is computed separately for each individual;

(11) For the two thousand six taxable year only, severance wages received by a taxpayer from an employer as the result of the taxpayer's permanent termination from employment through a reduction in force and through no fault of the employee, not to exceed thirty thousand dollars. For purposes of this subdivision:

(i) The term "severance wages" means any monetary compensation paid by the employer in the taxable year as a result of permanent termination from employment in excess of regular annual wages or regular annual salary;

(ii) The term "reduction in force" means a net reduction in the number of employees employed by the employer in West Virginia, determined based on total West Virginia employment of the employer's controlled group;

(iii) The term "controlled group" means one or more chains of corporations connected through stock ownership with a common parent corporation if stock possessing at least fifty percent of the voting power of all classes of stock of each of the corporations is owned directly or indirectly by one or more of the corporations and the common parent owns directly stock possessing at least fifty percent of the voting power of all classes of stock of at least one of the other corporations;

(iv) The term "corporation" means any corporation, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument; and

(12) Any other income which this state is prohibited from taxing under the laws of the United States.

(d) Modification for West Virginia fiduciary adjustment. -- There shall be added to or subtracted from federal adjusted gross income, as the case may be, the taxpayer's share, as beneficiary of an estate or trust, of the West Virginia fiduciary adjustment determined under section nineteen of this article.

(e) Partners and S corporation shareholders. -- The amounts of modifications required to be made under this section by a partner or an S corporation shareholder, which relate to items of income, gain, loss or deduction of a partnership or an S corporation, shall be determined under section seventeen of this article.

(f) Husband and wife. -- If husband and wife determine their federal income tax on a joint return but determine their West Virginia income taxes separately, they shall determine their West Virginia adjusted gross incomes separately as if their federal adjusted gross incomes had been determined separately.

(g) Effective date. -- (1) Changes in the language of this section enacted in the year two thousand shall apply to taxable years beginning after the thirty-first day of December, two thousand.

(2) Changes in the language of this section enacted in the year two thousand two shall apply to taxable years beginning after the thirty-first day of December, two thousand two.

WVC 11 - 21 - 12 A §11-21-12a. Additional modification reducing federal adjusted gross income.
In addition to amounts authorized to be subtracted from federal adjusted gross income pursuant to subsection (c), section twelve of this article, any payment made under a prepaid tuition contract or other college savings plan administered by the board, pursuant to article thirty, chapter eighteen of this code, is also an authorized modification reducing federal adjusted gross income, but only to the extent the amount is not allowable as a deduction when arriving at the taxpayer's federal adjusted gross income for the taxable year in which the payment is made. This modification is available regardless of the type of return form filed. The taxpayer may also elect to carry forward the modification over a period not to exceed five taxable years, beginning in the taxable year in which the payment was made.

WVC 11-21-12b §11-21-12b. Combat pay exempt.

Combat pay received for Desert Shield service, as defined in section sixty-one of this article, which is exempt from federal income tax, under Section 112 of the Internal Revenue code, shall be exempt from the tax imposed by this article.

WVC 11 - 21 - 12 C §11-21-12c. Deduction for long-term care insurance.
For taxable years beginning on and after the first day of January, two thousand, in addition to amounts authorized to be subtracted from federal adjusted gross income pursuant to subsection (c), section twelve of this article, any payment during the taxable year for premiums for a long-term care insurance policy as defined in section four, article fifteen-a, chapter thirty-three of this code that offers coverage to either the taxpayer, the taxpayer's spouse, parent or a dependent as defined in section 152 of the Internal Revenue Code of 1986, as amended, is an authorized modification reducing federal adjusted gross income, but only to the extent the amount is not allowable as a deduction when arriving at the taxpayer's federal adjusted gross income for the taxable year in which the payment is made.

WVC 11 - 21 - 12 D §11-21-12d. Additional modification reducing federal adjusted gross income.
In addition to amounts authorized to be subtracted from federal adjusted gross income pursuant to subsection (c), section twelve of this article, any person who retires under an employer-provided defined benefit pension plan that terminates prior to or after the retirement of that person and the pension plan is covered by a guarantor whose maximum benefit guarantee is less than the maximum benefit to which the retiree was entitled had the plan not terminated may subtract annually from his or her federal adjusted income a sum equal to the difference in the amount of the maximum annual pension benefit the person would have received for such tax year had the plan not terminated and the maximum annual pension benefit actually received from the guarantor under a benefit guarantee plan: Provided, That if the Tax Commissioner determines that this adjustment reduces the revenues of the state by two million dollars or more in any one year, then the Tax Commissioner shall reduce the percentage of the reduction to a level at which the commissioner believes will reduce the cost of the adjustment to two million dollars for the next year. This tax adjustment shall be effective for taxable years beginning on and after the first day of January, two thousand eight: Provided, however, That for the taxable year two thousand seven, the tax adjustment shall be effective and shall apply retroactively: Provided further, That the adjustment shall terminate for the tax years on or after the first day of January, two thousand twelve. This modification is available regardless of the type of return form filed.

WVC 11 - 21 - 12 E

PART II. RESIDENTS.

§11-21-12e. Additional modification reducing federal adjusted gross income.

  (a) For taxable years beginning after December 31, 2000, in addition to amounts authorized to be subtracted from federal adjusted gross income pursuant to subsection (c), section twelve of this article, active duty military pay received for the period of time an individual is on active duty as a member of the National Guard or armed forces reserve called to active duty pursuant to an Executive Order of the President of the United States for duty in Operation Enduring Freedom or for domestic security duty is an authorized modification reducing federal adjusted gross income, but only to the extent the active duty military pay is included in federal adjusted gross income for the taxable year in which it is received.

  (b) For taxable years beginning after December 31, 2012, in addition to amounts authorized to be subtracted from federal adjusted gross income pursuant to subsection (c), section twelve of this article, active duty military pay received by a resident individual who is on active duty for thirty continuous days or more in the armed forces of the United States, the National Guard or armed forces reserve is an authorized modification reducing federal adjusted gross income for the taxable year in which the individual has separated from active military service, but only to the extent the active duty military pay is included in federal adjusted gross income for the taxable year in which it is received. WVC 11 - 21 - 12 F §11-21-12f. Additional modification increasing federal adjusted gross income.
In addition to amounts added to federal adjusted gross income pursuant to subsection (b), section twelve of this article, unless already included in federal adjusted gross income for the taxable year, there shall be added to federal adjusted gross income any amount previously deducted from federal adjusted gross income under section twelve-a of this article for amounts deposited into a prepaid tuition contract or other college savings plan administered by the board of trustees of the college prepaid tuition and savings program, pursuant to article thirty, chapter eighteen of this code and subsequently withdrawn from the prepaid tuition contract or other college savings plan, that was used for purposes other than those qualified expenses authorized by I.R.C. §529. The provisions of this section are effective for taxable years beginning after the thirty-first day of December, two thousand three.

WVC 11 - 21 - 12 G §11-21-12g. Additional modification increasing federal adjusted gross income; disallowance of deduction taken under Internal Revenue Code Section 199.
(a) In addition to amounts added to federal taxable income pursuant to subsection (b), section twelve of this article, unless already included therein, there shall be added to federal taxable income the amount deducted under Section 199 of the Internal Revenue Code of 1986, as amended, when determining federal adjusted gross income for the taxable year for federal income tax purposes.

(b) When taxpayer's federal adjusted gross income includes distributive share of income, gain or loss of a partnership, limited liability company, electing small business corporation, or other entity treated as a partnership for federal income tax purposes, and when taxpayer's distributive share for the taxable year includes a deduction, or portion of a deduction computed under Section 199 of the Internal Revenue Code, as amended, for the taxable year, then in addition to amounts added to federal taxable income pursuant to subsection (b), section twelve of this article, unless already included therein, taxpayer shall add the amount computed under Section 199 of the Internal Revenue Code of 1986, as amended, that flows through to the taxpayer for federal income tax purposes for the taxable year. Taxpayer shall file with its annual return under this article a copy of all schedules K-1 it received showing allocation of a Section 199 deduction and such other information as the Tax Commissioner may require.

(c) Failure to attach required schedules. -- When taxpayer fails to include with the annual return due under this article the schedule or schedules required by this section, the return shall be treated as an incomplete return until the day the required schedule or schedules are filed with the Tax Commissioner. An incomplete return showing an overpayment of tax may not be treated as a claim for refund until the day the defect is cured. The filing of an incomplete return shall not start the running of the period of time during which the Tax Commissioner may issue an assessment or take other action to enforce compliance of this article for the taxable year.

(d) Audit adjustment to federal taxable income. -- When auditing for compliance with this article, the Tax Commissioner may change a taxpayer's computation of federal taxable income or pro forma taxable income to comply with the laws of the United States as in effect for the taxable year and incorporated by reference into this article.

WVC 11 - 21 - 12 H §11-21-12h. Additional modification reducing federal adjusted gross income relating to tolls for travel on West Virginia toll roads and paid electronically through use of parkways authority commuter (PAC) cards.
(a) For taxable years beginning on and after the first day of January, two thousand seven, in addition to amounts authorized to be subtracted from federal adjusted gross income pursuant to subsection (c), section twelve of this article, any payment during the taxable year for amounts expended by an individual for tolls paid electronically through use of a West Virginia Parkways, Economic Development and Tourism Authority PAC card (parkways authority commuter card) account for noncommercial commuter passes for travel on toll roads in West Virginia, not including amounts paid as refundable transponder deposits or amounts reimbursed by an employer or otherwise, is an authorized modification reducing federal adjusted gross income, but only to the extent the amount is not allowable as a deduction when arriving at the taxpayer's federal adjusted gross income for the taxable year in which the payment is made. In the case of a single person, a head of household or a married couple filing a joint return, or a married person filing a separate return, this authorized modification reducing federal adjusted gross income shall apply only to the portion of the expended amount that equals or exceeds twenty-five dollars and the total amount deducted for a taxable year shall not exceed one thousand two hundred dollars. Any amount of qualified tolls paid and eligible for this decreasing modification and not used in the taxable year when paid shall carry forward for up to three taxable years subsequent to the taxable year when paid. Qualified toll payments not used by the end of the carry forward period shall be forfeited.

(b) The Tax Commissioner annually, on or before the thirty-first day of December of each calendar year, beginning in two thousand eight, shall certify to the West Virginia Parkways, Economic Development and Tourism Authority: (i) The total dollar amount of tolls deducted by individuals under this section on personal income tax returns filed for the preceding taxable year beginning with taxable year two thousand seven; and (ii) the total dollar amount of personal income tax revenue not collected through the date of such certification solely as a result of such total toll deductions for such taxable year.

(c) On or before the thirtieth day of June of the following calendar year, beginning in two thousand nine, the West Virginia Parkways, Economic Development and Tourism Authority shall pay to the Tax Commissioner an amount equal to such certified total dollar amount of personal income tax revenue not collected for the taxable year covered by such certification: Provided, That the authority shall make such payment solely from nontoll revenues (that is, from revenues derived by the authority from sources other than tolls charged for transit on the West Virginia Turnpike) and only at such times and in such amounts and installment payments as are permitted by covenants and agreements of the authority under such bond indentures and other bond agreements as are then applicable to such nontoll revenues: Provided, however, That to the extent required to comply with such bond indentures and other bond agreements, the authority may defer the payment of all or a part of such amount beyond the thirtieth day of June of the following calendar year.

WVC 11 - 21 - 12 I §11-21-12i. Decreasing modification reducing federal adjusted gross income for qualifying contribution to a qualified trust maintained for the benefit of a child with autism; effective date.
(a) In addition to amounts authorized to be subtracted from federal adjusted gross income pursuant to section twelve of this article, a modification reducing federal adjusted gross income is hereby authorized in the amount of any qualifying contribution to a qualified trust maintained for the benefit of a child with autism by the parent or guardian of a child with autism, up to a maximum of $1,000 per year for individual filers and persons who are married but filing separately, and $2,000 per year for persons who are married and filing jointly, but only to the extent the amount is not allowable as a deduction when arriving at the taxpayer's federal adjusted gross income for the taxable year in which the payment is made. This modification is available regardless of the type of return form filed. The taxpayer may elect to carry forward the modification over a period not to exceed four tax years, beginning in the tax year in which the payment was made: Provided, That the amount of the decreasing modification, in combination with all other decreasing modifications authorized pursuant to this article, shall in no event reduce taxable income below zero. Any unused decreasing modification carryforward amount remaining after the four-year carryforward period is forfeited. The accrued deposits and earnings on the qualified trust account for a child with autism and the subsequent withdrawal of funds from that trust account, made in accordance with the provisions of article sixteen, chapter forty-four of this code, shall not be treated as taxable income to either the trust or the beneficiary. The provisions of this section are effective for taxable years beginning on and after January 1, 2011.

(b) The following definitions apply to this section:

(1) "Autism" means "autism" as that term is defined in section one, article sixteen, chapter forty-four of this code.

(2) "Child with autism" means "child with autism" as that term is defined in section one, article sixteen, chapter forty-four of this code.

(3) "Guardian" means "guardian" as that term is defined in section one, article sixteen, chapter forty-four of this code.

(4) "Parent" means a "parent" as that term is defined in section one, article sixteen, chapter forty-four of this code.

(5) "Qualified trust for a child with autism" means "qualified trust for a child with autism" as that term is defined in section one, article sixteen, chapter forty-four of this code.

(c) If it appears upon audit or otherwise that any person or entity has taken the decreasing modification allowed under this section and was not entitled to take the decreasing modification, or has withdrawn funds from the qualified trust for a child with autism in a way not consistent with the requirements of article sixteen, chapter forty-four of this code, then an assessment shall be made and the income tax liability of the taxpayer shall be recomputed disallowing the decreasing modification so taken. Such assessment shall not be barred by any statute of limitations otherwise applicable to the tax imposed pursuant to this article. Amended returns shall be filed for any tax year for which the decreasing modification was improperly taken. Any additional taxes due under this chapter shall be remitted with the amended return or returns filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter and such other penalties and additions to tax as may be applicable pursuant to the provisions of article ten of this chapter.

(d) Married parents who qualify for the modification provided under this section and who file separate state tax returns shall each receive the modification provided in this section in an amount equal to the amount of contributions made by the parents into the trusts, not to exceed $1,000 each.

(e) Joint guardians who qualify for the modification provided under this section and who file separate state tax returns shall each receive the modification provided in this section, in an amount equal to the amount of contributions made by the guardians into the trust, not to exceed $1,000 each.

(f) In the event the parents or guardians of a child with autism, claiming the modification provided under this section, become divorced or legally separated, each party shall be allowed to claim the amount of unused carryforward modification that remains available under this section according to the terms of an agreed property settlement approved by the divorce court which specifically addresses the unused carryforward modification. In the event that no property settlement specifically addressing the unused carryforward modification exists relating to the divorce or legal separation, then any unused carryforward modification remaining at the time of the divorce or legal separation is granted shall be evenly divided between the parties.

(g) The Tax Commissioner may propose rules necessary to carry out the provisions of this section and to provide guidelines and requirements to ensure uniform administrative practices statewide to effect the intent of this section, all in accordance with the provisions of article three, chapter twenty-nine-a of this code.

WVC 11-21-13 §11-21-13. West Virginia deduction of resident individual.

The West Virginia deduction of a resident individual shall be his West Virginia standard deduction unless he elects to deduct his West Virginia itemized deduction under the conditions set forth in section fifteen: Provided, That no West Virginia deduction shall be allowed for taxable years beginning after the thirty-first day of December, one thousand nine hundred eighty-six.

WVC 11-21-14 §11-21-14. West Virginia standard deduction of a resident individual.

(a) General. -- The West Virginia standard deduction of a resident individual, or of husband and wife whose West Virginia taxable income is determined jointly, shall be ten per centum of West Virginia adjusted gross income or one thousand dollars, whichever is less.

(b) Husband and wife determining income separately. -- The West Virginia standard deductions of husband and wife whose West Virginia taxable incomes are determined separately (whether or not on a single form) shall not exceed ten per centum of the aggregate of their separate West Virginia adjusted gross incomes or one thousand dollars, whichever is less, but may be taken by either or divided between them in such proportions as they may elect.

(c) Expiration. -- The West Virginia standard deduction provided in this section shall not apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred eighty-six.

WVC 11-21-15 §11-21-15. West Virginia itemized deduction of a resident individual.

(a) General. -- If federal taxable income of a resident individual is determined by itemizing deductions from his federal adjusted gross income, he may elect to deduct his West Virginia itemized deduction in lieu of his West Virginia standard deduction. The West Virginia itemized deduction of a resident individual means the total amount of his deductions from federal adjusted gross income, other than federal deductions for personal exemptions, as provided in the laws of the United States for the taxable year with the modifications specified in this section.

(b) Husband and wife. -- (1) A husband and wife, both of whom are required to file returns under this article, shall be allowed West Virginia itemized deductions only if both elect to take West Virginia itemized deductions.

(2) The total of the West Virginia itemized deductions of a husband and wife whose federal taxable income is determined on a joint return, but whose West Virginia taxable incomes are determined separately, may be taken by either or divided between them in such proportions as they may elect.

(c) Modifications reducing federal itemized deductions. -- The total amount of deductions from federal adjusted gross income shall be reduced by the amount of such federal deductions for:

(1) Income taxes imposed by this state or any other taxing jurisdiction; and

(2) Interest on indebtedness incurred or continued to purchase or carry obligations or securities the income from which is exempt from tax under this article.

(d) Partners. -- The amounts of modifications under subsection (c) required to be made by a partner with respect to items of deduction of a partnership shall be determined under section seventeen.

(e) Expiration. -- The West Virginia itemized deduction provided in this section shall not apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred eighty-six.

WVC 11 - 21 - 16 §11-21-16. West Virginia personal exemptions of resident individual.
(a) General. -- For any tax imposed under the provisions of this article with respect to any taxable year prior to the first day of January, one thousand nine hundred eighty-three, a resident individual shall be allowed a West Virginia exemption of six hundred dollars for each exemption for which he is entitled to a deduction for the taxable year for federal income tax purposes. With respect to any taxable year beginning on or after the first day of January, one thousand nine hundred eighty-three, and prior to the first day of January, one thousand nine hundred eighty-four, said exemption shall be seven hundred dollars; with respect to any taxable year beginning on or after the first day of January, one thousand nine hundred eighty-four, said exemption shall be eight hundred dollars; and with respect to any taxable year beginning on or after the first day of January, one thousand nine hundred eighty-seven, said exemption shall be two thousand dollars.

(b) Husband and wife. -- If the West Virginia income taxes of a husband and wife are separately determined but their federal income tax is determined on a joint return, each of them shall be separately entitled, with respect to any taxable year prior to the first day of January, one thousand nine hundred eighty-three, to a West Virginia exemption of six hundred dollars for each federal exemption to which he would be separately entitled for the taxable year if their federal income taxes had been determined on separate returns. With respect to any taxable year beginning on or after the first day of January, one thousand nine hundred eighty-three, and prior to the first day of January, one thousand nine hundred eighty-four, said exemption shall be seven hundred dollars; with respect to any taxable year beginning on or after the first day of January, one thousand nine hundred eighty-four, said exemption shall be eight hundred dollars; and with respect to any taxable year beginning on or after the first day of January, one thousand nine hundred eighty-seven, said exemption shall be two thousand dollars.

(c) Surviving spouse. -- For taxable years beginning after the thirty-first day of December, one thousand nine hundred eighty-six, a surviving spouse shall be allowed one additional exemption of two thousand dollars for the two taxable years beginning after the year of death of the deceased spouse.

For purposes of this section and section twelve of this article, a surviving spouse means a taxpayer whose spouse died during the taxable year prior to the taxable year for which the annual return is being filed and who has not remarried at any time before the end of the taxable year for which the annual return is being filed.

(d) Certain dependents. -- Notwithstanding any provisions in this section, for taxable years beginning after the thirty-first day of December, one thousand nine hundred eight-six, a resident individual whose exemption amount for federal tax purposes is zero by virtue of section 151(d)(2) of the Internal Revenue Code of 1986, shall be allowed a single West Virginia exemption in the amount of five hundred dollars.

WVC 11-21-17 §11-21-17. Resident partners.

(a) Partner's modifications. -- In determining West Virginia adjusted gross income and West Virginia taxable income of a resident partner, any modification described in section twelve (b), (c) or (d) or section fifteen (c), which relates to an item of partnership income, gain, loss or deduction shall be made in accordance with the partner's distributive share, for federal income tax purposes, of the items to which the modifications relate. Where a partner's distributive share of any such item is not required to be taken into account separately for federal income tax purposes, the partner's distributive share of such item shall be his distributive share for federal income tax purposes of partnership taxable income or loss generally.

(b) Character of items. -- Each item of partnership income, gain, loss, or deduction shall have the same character for a partner under this article as for federal income tax purposes. Where an item is not characterized for federal income tax purposes, it shall have the same character for a partner as if realized directly from the source from which realized by the partnership, or incurred in the same manner as incurred by the partnership.

(c) West Virginia tax avoidance or evasion. -- Where a partner's distributive share of an item of partnership income, gain, loss or deduction is determined for federal income tax purposes by special provision in the partnership agreement with respect to such item, and where the principal purpose of such provision is the avoidance or evasion of tax under this article, the partner's distributive share of such item, and any modification required with respect thereto shall be determined as if the partnership agreement made no special provision with respect to such item.

WVC 11-21-17a §11-21-17a. Resident shareholders of S corporations.

(a) S corporation shareholder's modifications. -- In determining West Virginia adjusted gross income and West Virginia taxable income of a resident S corporation shareholder, any modification described in section twelve (b), (c) or (d), which relates to an item of income, gain, loss or deduction shall be made in accordance with the S corporation shareholder's pro rata share, for federal income tax purposes, of the items to which the modifications relate. Where a shareholder's pro rata share of any such item is not required to be taken into account separately for federal income tax purposes, the shareholder's pro rata share of such item shall be his pro rata share for federal income tax purposes of S corporation taxable income or loss generally.

(b) Character of items. -- Each item of S corporation income, gain, loss or deduction shall have the same character for a shareholder under this article as for federal income tax purposes. Where an item is not characterized for federal income tax purposes, it shall have the same character for a shareholder as if realized directly from the source from which realized by the S corporation, or incurred in the same manner as incurred by the S corporation.

WVC 11 - 21 - 18 §11-21-18. West Virginia taxable income of resident estate or trust.
The West Virginia taxable income of a resident estate or trust means its federal taxable income for the taxable year as defined in the laws of the United States and section nine of this article for the taxable year, with the following modifications:

(1) There shall be subtracted six hundred dollars as the West Virginia personal exemption of the estate or trust, and there shall be added the amount of its federal deduction for a personal exemption.

(2) There shall be added or subtracted, as the case may be, the share of the estate or trust in the West Virginia fiduciary adjustment determined under section nineteen of this article.

(3) There shall be added to federal adjusted gross income, unless already included therein, the amount of a lump sum distribution for which the taxpayer has elected under Section 402(e) of the Internal Revenue Code of 1986, as amended, to be separately taxed for federal income tax purposes: Provided, That the provisions of this subdivision shall first be effective for taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety.

(4) There shall be added by an electing small business trust as defined in Section 1361(e) of the Internal Revenue Code of 1986, as amended, which is a shareholder in one or more electing small business corporations, the portion of the trust's income attributable to electing small business corporation stock held by the trust that is not included in the trust's federal taxable income pursuant to Section 641 of the Internal Revenue Code of 1986, as amended.

(b) The amendments to this section enacted in the regular session of the Legislature in two thousand five are effective for tax years beginning on or after the first day of January, two thousand five.

WVC 11-21-19 §11-21-19. Share of resident estate, trust or beneficiary in West Virginia fiduciary adjustment.

(a) General. -- An adjustment shall be made in determining West Virginia taxable income of a resident estate or trust under section eighteen, or West Virginia adjusted gross income of a resident beneficiary of any estate or trust under section twelve (d), in the amount of the share of each in the West Virginia fiduciary adjustment as determined in this section.

(b) Definition. -- The West Virginia fiduciary adjustment shall be the net amount of the modifications described in section twelve (b), (c) and (d), and section fifteen (c) which relate to items of income, gain, loss or deduction of an estate or trust. Such net amount shall not include any modification described in section twelve (c) (3), with respect to gains from the sale or other disposition of property, to the extent such gains are excluded from distributable net income of the estate or trust for federal income tax purposes.

(c) Shares of West Virginia fiduciary adjustment. -- (1) The respective shares of an estate or trust and its beneficiaries (including, solely for the purpose of this allocation, nonresident beneficiaries) in the West Virginia fiduciary adjustment shall be in proportion to their respective shares of distributable net income of the estate or trust for federal income tax purposes.

(2) If the distributable net income for the taxable year of the estate or trust is zero, the share of each beneficiary in the West Virginia fiduciary adjustment shall be in proportion to his share of the estate or trust income for such year, under local law or the governing instrument, which is distributed within such year, or is required to be distributed currently. Any balance of the West Virginia fiduciary adjustment shall be allocated to the estate or trust.

(d) Alternate attribution of modifications. -- The tax commissioner may, on application, authorize the use of such other methods of determining to whom the items comprising the fiduciary adjustment shall be attributed, as may be appropriate and equitable, on such terms and conditions as he may require.

WVC 11-21-20 §11-21-20. Credit for income tax of another state.

(a) General. -- A resident shall be allowed a credit against the tax otherwise due under this article for any income tax imposed for the taxable year by another state of the United States or by the District of Columbia, upon income both derived therefrom and subject to tax under this article.

(b) Limitations. -- (1) The credit under this section shall not exceed the percentage of the tax otherwise due under this article determined by dividing the portion of the taxpayer's West Virginia income subject to taxation by such other jurisdiction by the total amount of the taxpayer's West Virginia income.

(2) The credit under this section shall not reduce the tax otherwise due under this article to an amount less than would have been due if the income subject to taxation by such other jurisdiction were excluded from the taxpayer's West Virginia income.

(c) Exception. -- No credit shall be allowed under this section for a tax of a jurisdiction which allows residents of this state a credit against the taxes imposed by such other jurisdiction for the tax under this article, if such other credit is substantially similar to the credit granted by section forty.

(d) Definition. -- For purposes of this section West Virginia income means:

(1) The West Virginia adjusted gross income of an individual, or

(2) The amount of the income of an estate or trust, determined as if the estate or trust were an individual computing his West Virginia adjusted gross income under section twelve.

WVC 11 - 21 - 21 §11-21-21. Senior citizens' tax credit for property tax paid on first $20,000 of taxable assessed value of a homestead in this state.
     (a) Allowance of credit. --

     (1) A low-income person who is allowed a $20,000 homestead exemption from the assessed value of his or her homestead for ad valorem property tax purposes, as provided in section three, article six-b of this chapter, shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of ad valorem property taxes paid on up to the first $10,000 of taxable assessed value of the homestead for property tax years that begin on or after January 1, 2003, except as provided in subdivision (2) of this subsection.

     (2) For tax years beginning on or after January 1, 2007, a low-income person who is allowed a $20,000 homestead exemption from the assessed value of his or her homestead for ad valorem property tax purposes, as provided in section three, article six-b of this chapter, shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of ad valorem property taxes paid on up to the first $20,000 of taxable assessed value of the homestead for property tax years that begin on or after January 1, 2007: Provided, That for tax years beginning on and after January 1, 2009, any person who is required to pay the federal alternative minimum income tax in the current tax year is disqualified from receiving any tax credit provided under this section.

     (3) Due to the administrative cost of processing, the refundable credit authorized by this section may not be refunded if less than $10.

     (4) The credit for each property tax year shall be claimed by filing a claim for refund within three years after the due date for the personal income tax return upon which the credit is first available.

     (b) Terms defined. --

     For purposes of this section:

     (1) "Low income" means federal adjusted gross income for the taxable year that is one hundred fifty percent or less of the federal poverty guideline for the year in which property tax was paid, based upon the number of individuals in the family unit residing in the homestead, as determined annually by the United States Secretary of Health and Human Services.

     (2) (A) For tax years beginning before January 1, 2007, "taxes paid" means the aggregate of regular levies, excess levies and bond levies extended against not more than $10,000 of the taxable assessed value of a homestead that are paid during the calendar year determined after application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes for a property tax year that begins on or after January 1, 2003, except as provided in paragraph (B) of this subdivision.

     (B) For tax years beginning on or after January 1, 2007, "taxes paid" means the aggregate of regular levies, excess levies and bond levies extended against not more than $20,000 of the taxable assessed value of a homestead that are paid during the calendar year determined after application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes for a property tax year that begins on or after January 1, 2007.

     (c) Legislative rule. --

     The Tax Commissioner shall propose a legislative rule for promulgation as provided in article three, chapter twenty-nine-a of this code to explain and implement this section.

     (d) Confidentiality. --

     The Tax Commissioner shall utilize property tax information in the statewide electronic data processing system network to the extent necessary for the purpose of administering this section, notwithstanding any provision of this code to the contrary.

     (e) For tax years beginning on or after January 1, 2012, taxpayers must calculate the credit authorized in this section prior to calculating the credit authorized in section twenty-three of this article. WVC 11 - 21 - 22 §11-21-22. Low-income family tax credit.
In order to eliminate West Virginia personal income tax on families with incomes below the federal poverty guidelines and to reduce the West Virginia personal income tax on families with incomes that are immediately above the federal poverty guidelines, there is hereby created a nonrefundable tax credit, to be known as the low-income family tax credit, against the West Virginia personal income tax. The low-income family tax credit is based upon family size and the federal poverty guidelines. The low-income tax credit reduces the tax imposed by the provisions of this article on families with modified federal adjusted gross income below or near the federal poverty guidelines: Provided, That for tax years beginning on and after January 1, 2009, any person who is required to pay the federal alternative minimum income tax in the current tax year is disqualified from receiving any tax credit provided under this section.

WVC 11 - 21 - 22 A §11-21-22a. Definitions.
When used in this section and sections twenty-two, twenty-two-b and twenty-two-c of this article, the following terms shall have the meaning ascribed herein, unless a different meaning is clearly provided by the context in which the term is used.

(a) "Federal poverty guidelines" means the U. S. Department of Health and Human Services poverty guidelines updated periodically in the Federal Register under the authority of 42 U. S. C. §9902(c) and available each year on the thirtieth day of June.

(b) "Family size" means the total number of exemptions that may be legally claimed on the West Virginia resident personal income tax return for the taxable year for which the tax credit is claimed: Provided, That family size shall not include the additional exemption that may be claimed by a surviving spouse pursuant to subsection (c), section sixteen of this chapter: Provided, however, That if the total number of exemptions that may be legally claimed on the West Virginia resident personal income tax return for the taxable year for which the tax credit is claimed exceeds eight, the family size shall be deemed eight.

(c) "Indexed tax credit tables" means the two tables annually developed and published by the Tax Commissioner pursuant to the requirements of section twenty-two-b of this article.

(d) "Modified federal adjusted gross income" means the federal adjusted gross income plus any applicable increasing West Virginia modifications plus any tax exempt interest income reported on the federal tax return.

(e) "Qualified taxpayer" means a taxpayer:

(1) Who files the West Virginia personal income tax return required by this article;

(2) Who files as an individual, as a head of household, as a husband and wife who file a joint return, as an individual entitled to file as a surviving spouse, or as a husband and wife who file separate returns; and

(3) Whose modified federal adjusted gross income does not exceed:

(A) The federal poverty guidelines amount for the family size of the taxpayer plus two thousand seven hundred dollars for those taxpayers who file as an individual, as a head of household, as a husband and wife who file a joint return, or as an individual entitled to file as a surviving spouse; or

(B) Fifty percent of the federal poverty guidelines amount for the family size of the taxpayer plus one thousand three hundred fifty dollars for those taxpayers who are husband and wife and who file separate returns.

(f) "Tax credit" means the low-income family tax credit authorized by this article.

WVC 11 - 21 - 22 B §11-21-22b. Amount of credit.
(a) For each taxable year beginning on or after the first day of January, two thousand seven, the tax credit authorized by section twenty-two of this article may be used by every qualified taxpayer and shall be calculated in accordance with subsections (b) and (c) of this section: Provided, That for the taxable year beginning on the first day of January, two thousand seven, the qualified taxpayer shall be allowed to claim only fifty percent of the amount of the tax credit.

(b) Qualified taxpayers who file as an individual, as a head of household, as a husband and wife who file a joint return, or as an individual entitled to file as a surviving spouse shall be entitled to a tax credit based on the following:

(1) If modified federal adjusted gross income is at or below the federal poverty guidelines based on family size, the credit shall be an amount equal to the amount of tax owed under this article by the qualified taxpayer;

(2) If modified federal adjusted gross income is greater than the federal poverty guidelines but does not exceed three hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be ninety percent of the amount of tax owed under this article by the qualified taxpayer;

(3) If modified federal adjusted gross income is greater than three hundred dollars above the federal poverty guidelines but does not exceed six hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be eighty percent of the amount of tax owed under this article by the qualified taxpayer;

(4) If modified federal adjusted gross income is greater than six hundred dollars above the federal poverty guidelines but does not exceed nine hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be seventy percent of the amount of tax owed under this article by the qualified taxpayer;

(5) If modified federal adjusted gross income is greater than nine hundred dollars above the federal poverty guidelines but does not exceed one thousand two hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be sixty percent of the amount of tax owed under this article by the qualified taxpayer;

(6) If modified federal adjusted gross income is greater than one thousand two hundred dollars above the federal poverty guidelines but does not exceed one thousand five hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be fifty percent of the amount of tax owed under this article by the qualified taxpayer;

(7) If modified federal adjusted gross income is greater than one thousand five hundred dollars above the federal poverty guidelines but does not exceed one thousand eight hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be forty percent of the amount of tax owed under this article by the qualified taxpayer;

(8) If modified federal adjusted gross income is greater than one thousand eight hundred dollars above the federal poverty guidelines but does not exceed two thousand one hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be thirty percent of the amount of tax owed under this article by the qualified taxpayer;

(9) If modified federal adjusted gross income is greater than two thousand one hundred dollars above the federal poverty guidelines but does not exceed two thousand four hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be twenty percent of the amount of tax owed under this article by the qualified taxpayer; or

(10) If modified federal adjusted gross income is greater than two thousand four hundred dollars above the federal poverty guidelines but does not exceed two thousand seven hundred dollars above the federal poverty guidelines based on family size, the amount of credit allowable shall be ten percent of the amount of tax owed under this article by the qualified taxpayer.

(c) Qualified taxpayers who are husband and wife and who file separate returns shall be entitled to a tax credit based on the following:

(1) If modified federal adjusted gross income is at or below fifty percent of the federal poverty guidelines based on family size, the credit shall be an amount equal to the amount of tax owed under this article by the qualified taxpayer;

(2) If modified federal adjusted gross income is greater than fifty percent of the federal poverty guidelines but does not exceed one hundred fifty dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit allowable shall be ninety percent of the amount of tax owed under this article by the qualified taxpayer;

(3) If modified federal adjusted gross income is greater than one hundred fifty dollars above fifty percent of the federal poverty guidelines but does not exceed three hundred dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit allowable shall be eighty percent of the amount of tax owed under this article by the qualified taxpayer; (4) If modified federal adjusted gross income is greater than three hundred dollars above fifty percent of the federal poverty guidelines but does not exceed four hundred fifty dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit allowable shall be seventy percent of the amount of tax owed under this article by the qualified taxpayer;

(5) If modified federal adjusted gross income is greater than four hundred fifty dollars above fifty percent of the federal poverty guidelines but does not exceed six hundred dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit allowable shall be sixty percent of the amount of tax owed under this article by the qualified taxpayer;

(6) If modified federal adjusted gross income is greater than six hundred dollars above fifty percent of the federal poverty guidelines but does not exceed seven hundred fifty dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit allowable shall be fifty percent of the amount of tax owed under this article by the qualified taxpayer;

(7) If modified federal adjusted gross income is greater than seven hundred fifty dollars above fifty percent of the federal poverty guidelines but does not exceed nine hundred dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit allowable shall be forty percent of the amount of tax owed under this article by the qualified taxpayer;

(8) If modified federal adjusted gross income is greater than nine hundred dollars above fifty percent of the federal poverty guidelines but does not exceed one thousand fifty dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit allowable shall be thirty percent of the amount of tax owed under this article by the qualified taxpayer;

(9) If modified federal adjusted gross income is greater than one thousand fifty dollars above fifty percent of the federal poverty guidelines but does not exceed one thousand two hundred dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit allowable shall be twenty percent of the amount of tax owed under this article by the qualified taxpayer; or

(10) If modified federal adjusted gross income is greater than one thousand two hundred dollars above fifty percent of the federal poverty guidelines but does not exceed one thousand three hundred hundred fifty dollars above fifty percent of the federal poverty guidelines based on family size, the amount of credit shall be ten percent of the amount of tax owed under this article by the qualified taxpayer.

(d) The Tax Commissioner shall develop and publish on an annual basis two indexed tax credit tables. One tax table shall be for qualified taxpayers who file as an individual, as a head of household, as a husband and wife who file a joint return, or as an individual entitled to file as a surviving spouse and one tax table shall be for qualified taxpayers who are husband and wife and who file separate returns. The indexed tax credit tables shall be based on subsections (b) and (c) of this section.

WVC 11 - 21 - 22 C §11-21-22c. Administration.
The Tax Commissioner may propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code for the administration of the provisions of sections twenty-two, twenty-two-a and twenty-two-b of this article, file administrative notices in the State Register in accordance with section three, article two, chapter twenty-nine-a of this code, and develop and publish any instructions, any or all of which as may be determined to be necessary to provide to taxpayers guidance and assistance when claiming this tax credit.

WVC 11 - 21 - 23 §11-21-23. Refundable credit for real property taxes paid in excess of four percent of gross household income.
     (a) For the tax years beginning on or after January 1, 2008, any homeowner living in his or her homestead shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of real property taxes paid in excess of four percent of gross household income: Provided, That for the tax years beginning on or after January 1, 2012, any low income homeowner living in his or her homestead in this state shall be allowed a refundable credit against the taxes imposed by this article equal to the amount by which the difference between West Virginia real property taxes paid for the tax year, minus the amount of credit authorized in section twenty-one of this article, exceeds four percent of the taxpayer's gross household income for the tax year, as determined for purposes of this article. If the refundable credit provided in this section exceeds the amount of taxes imposed by this article, the state Tax Department shall refund that amount to the homeowner.

     (b) Due to the administrative cost of processing, the refundable credit authorized by this section may not be refunded if less than $10.

     (c) The credit for each property tax year shall be claimed by filing a claim for refund within twelve months after the real property taxes are paid on the homestead.    

     (d) For the purposes of this section:

     (1) "Gross household income" is defined as federal adjusted gross income plus the sum of the following:

     (A) Modifications in subsection (b), section twelve of this article increasing federal adjusted gross income;

     (B) Federal tax-exempt interest reported on federal tax return;

     (C) Workers' compensation and loss of earnings insurance; and

     (D) Nontaxable Social Security benefits; and

     (2) For the tax years beginning before January 1, 2008, "real property taxes paid" means the aggregate of regular levies, excess levies and bond levies extended against the homestead that are paid during the calendar year and determined after any application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes for property tax years that begin on or after January 1, 2008.

     (e) A homeowner is eligible to benefit from this section or section twenty-one of this article, whichever section provides the most benefit as determined by the homeowner. No homeowner may receive benefits under both this section and section twenty-one of this article during the same taxable year: Provided, That for tax years beginning on or after January 1, 2012, a homeowner may take the credit provided in this section in addition to the credit provided in section twenty-one of this article, to be calculated as provided in subsection (a) of this section. For tax years beginning on and after January 1, 2009, any person who is required to pay the federal alternative minimum income tax in the current tax year is disqualified from receiving any tax credit provided under this section. Nothing in this section denies those entitled to the homestead exemption provided in section three, article six-b of this chapter.

     (f) No homeowner may receive a refundable tax credit imposed by this article in excess of $1,000. This amount shall be reviewed annually by the Legislature to determine if an adjustment is necessary.

     (g) For tax years commencing on or after January 1, 2012, no credit may be taken under this section for any homestead which is owned, in whole or in part, by any person who is not a low income person.

     (h) Terms defined. -- For purposes of this section:

     (1) The definitions set forth in section twenty-four of this article apply for purposes of this section.

     (2) "Low income" means federal adjusted gross income for the tax year that is three hundred percent or less of the federal poverty guideline for the year in which property tax was paid, based upon the number of individuals in the family unit residing in the homestead, as determined annually by the United States Secretary of Health and Human Services.

     (3) A "low income person" means a person whose federal adjusted gross income for the tax year meets the definition of "low income" as defined in this subsection. WVC 11 - 21 - 24 §11-21-24. Senior citizen property tax relief credit for tax years beginning before 2012.
     (a) Definitions. -- As used in this section, the following terms shall have the meaning ascribed to them in this subsection, unless the context in which the term is used clearly requires a different meaning or a specific different definition is provided:

     (1) "Assessed value" means the value of property as determined under article three of this chapter.

     (2) "Real property taxes paid" means, for the tax years beginning on or after January 1, 2009, the aggregate of regular levies, excess levies and bond levies extended against the homestead that are paid during the calendar year and determined after any application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes.

     (3) "Senior citizen property tax relief tax credit" means the tax credit authorized under this section.

     (4) "Gross household income" means gross household income as defined in section twenty-three of this article.

     (5) "Homestead" means a homestead qualified for the homestead property tax exemption authorized in article six-b of this chapter, but limited to a single-family residential house, including a mobile or manufactured or modular home, and the land, not exceeding one acre, surrounding such structure that is owned by the owner of the single-family residential house, including a mobile or manufactured or modular home; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned by another.

     (6) "Owner" or "homeowner" means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be considered the property of the party in possession.

     (7) "Sixty-five years of age or older" includes a person who attains the age of sixty-five on or before June 30 following the July 1 assessment day.

     (8) "Tax increment" means the increase of ad valorem taxes assessed on the homestead, determined as the difference between the ad valorem taxes assessed on the homestead for the current tax year and the ad valorem taxes assessed on the homestead for the tax year immediately preceding the tax year for which the taxpayer's application for tax credit specified in this section is approved by the assessor, or otherwise finally approved in accordance with the provisions of this article.

     (9) "Tax year" means the property tax calendar year following the July 1 assessment day.

     (10) "Used and occupied exclusively for residential purposes" means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that subsequent to making application for tax credit, the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use.

     (b) Refundable credit. -- Subject to the requirements and limitations of this section, for the tax years beginning on or after January 1, 2009, any homeowner having a gross household income equal to or less than $25,000 for the tax year, living in his or her homestead shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of real property taxes paid that are attributable to the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead: Provided, That the gross household income shall be adjusted annually in accordance with the consumer price index. The credit shall be applied against the personal income tax in the personal income tax year of the taxpayer when the property tax increment was actually paid.

     (1) Due to the administrative cost of processing, the refundable credit authorized by this section may not be refunded if less than $10.

     (2) The credit for each property tax year shall be claimed by filing a claim for refund within twelve months after the real property taxes are paid on the homestead.

     (3) Notwithstanding the provisions of section twenty-one or section twenty-three of this article, for property tax years that begin on or after January 1, 2009, a homeowner is eligible to benefit from this section, section twenty-one or twenty-three of this article, whichever section provides the most benefit as determined by the homeowner. No homeowner may receive benefits under this section, section twenty-one or twenty-three of this article during the same taxable year. Nothing in this section shall be interpreted to deny any lawfully entitled taxpayer of the homestead exemption provided in section three, article six-b of this chapter.

     (4) No tax credit shall be allowed under this section for tax years beginning on or after January 1, 2012: Provided, That the definitions set forth in this section shall continue to apply for purposes of section twenty-three of this article.

(c) Qualification for credit. --

     (1) The following homesteads shall qualify for the tax credit provided in this section:

     (A) Any homestead owned by an owner sixty-five years of age or older and used and occupied exclusively for residential purposes by such owner; and

     (B) Any homestead that:

     (i) Is owned by an owner sixty-five years of age or older who, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility;

     (ii) Was most recently used and occupied exclusively for residential purposes by the owner or the owner's spouse; and

     (iii) Has been retained by the owner for noncommercial purposes.

     (2) (A) For tax years commencing on or after January 1, 2009, the owner of a homestead meeting the qualifications set forth in subdivision (1) of this subsection may apply for a tax credit in the amount of the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead, subject to the limitations set forth in this section: Provided, That the tax credit may be authorized only when the tax increment is the greater of $300 or ten percent or more.

     (B) In lieu of the tax credit authorized under this section, a taxpayer entitled to such credit may elect to instead apply the deferment of the tax increment authorized pursuant to article six-h of this chapter. Any taxpayer making such election shall be fully subject to the terms and limitations set forth in article six-h of this chapter.

     (d) Application for tax credit; renewals; waiver of tax credit. --

     (1) General. -- No tax credit may be allowed under this section unless an application for tax credit is filed with the assessor of the county in which the homestead is located, on or before November 1 following mailing of the tax ticket in which the tax increment that is the subject of the application is contained, such tax ticket being mailed pursuant to section eight, article one, chapter eleven-a of this code. In the case of sickness, absence or other disability of the owner, the application may be filed by the owner or his or her duly authorized agent.

     (2) Renewals. -- After the owner has filed an application for tax credit with his or her assessor, there shall be no need for that owner to refile an application for the tax credit. However, the taxpayer shall in all cases be required to file a personal income tax return in order to claim the credit in any tax year.

     (e) Determination; notice of denial of application for tax credit. --

     (1) The assessor shall, as soon as practicable after an application for tax credit is filed, review that application and either approve or deny it. If the application is denied, the assessor shall promptly, but not later than January 1, serve the owner with written notice explaining why the application was denied and furnish a form for filing with the county commission, should the owner desire to take an appeal. The notice required or authorized by this section shall be served on the owner or his or her authorized representative either by personal service or by certified mail. The assessor shall approve or disapprove an application for tax credit within thirty days of receipt. Any application not approved or denied within thirty days is deemed approved.

     (2) In the event that the assessor has information sufficient to form a reasonable belief that an owner, after having been originally granted a tax credit, is no longer eligible for the tax credit, he or she shall, within thirty days after forming this reasonable belief, revoke the tax credit and serve the owner with written notice explaining the reasons for the revocation and furnish a form for filing with the county commission should the owner desire to take an appeal.

     (f) Appeals procedure. --

     (1) Notice of appeal; thirty days. -- Any owner aggrieved by the denial of his or her claim for application for tax credit or the revocation of a previously approved tax credit may appeal to the county commission of the county within which the property is situated. All such appeals shall be filed within thirty days after the owner's receipt of written notice of the denial of an application or the revocation of a previously approved tax credit, as applicable, pursuant to subsection (e) of this section.

     (2) Review; determination; appeal. -- The county commission shall complete its review and issue its determination as soon as practicable after receipt of the notice of appeal, but in no event later than February 28 following the tax year for which the tax credit was sought. In conducting its review, the county commission may hold a hearing on the application. The assessor or the owner may apply to the circuit court of the county for review of the determination of the county commission in the same manner as is provided for appeals from the county commission in section twenty-five, article three of this chapter.

     (g) Termination of tax credit. --

     (1) Any tax credit approved in accordance with the provisions of this section shall terminate immediately when any of the following events occur:

     (A) The death of the owner of the property for which the tax credit was authorized;

     (B) The sale of the property for which the tax credit was approved; or

     (C) A determination by the assessor that the property for which the tax credit was approved no longer qualifies for the tax credit in accordance with the provisions of this section.

     (h) Forms, instructions and regulations. -- The Tax Commissioner shall prescribe and supply all necessary instructions and forms for administration of this section. Additionally, the Tax Commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as the Tax Commissioner considers necessary for the implementation of this section.

     (i) Criminal penalties; restitution. --

     (1) False or fraudulent claim for tax credit. -- Any owner who willfully files a fraudulent application for tax credit and any person who knowingly assisted in the preparation or filing of such fraudulent application for tax credit or who knowingly supplied information upon which the fraudulent application for tax credit was prepared or allowed is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $500, or imprisoned in jail for not more than one year, or both fined and imprisoned.

     (2) In addition to the criminal penalties provided above, upon conviction of any of the above offenses, the court shall order that the defendant make restitution unto this state for all taxes not paid due to an improper tax credit, or continuation of a tax credit, for the owner and interest thereon at the legal rate until paid. WVC 11-21-25 §11-21-25.

Reserved for future use.

WVC 11-21-26 §11-21-26.

Reserved for future use.

WVC 11-21-27 §11-21-27.

Reserved for future use.

WVC 11-21-28 §11-21-28.

Reserved for future use.

WVC 11-21-29 §11-21-29.

Reserved for future use.

WVC 11 - 21 - 30 PART III. NONRESIDENT AND PART-YEAR RESIDENTS.

§11-21-30. Computation of tax on income of nonresidents and part-year residents.

(a) Computation of tax . -- For taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-one, the tax due under this article on taxable income derived from sources in this state by a nonresident individual, estate, or trust or by a part-year resident individual shall be calculated as provided in this section.

(1) Taxpayer shall first calculate tax liability under this article as if taxpayer, whether an individual, estate or trust, were a resident of this state for the entire taxable year. When determining tentative tax liability under this subdivision, a nonresident shall be allowed the same deductions, exemptions and credits that would be allowable if taxpayer were a resident individual, estate or trust, as the case may be, for the entire taxable year, except that no credit shall be allowed under section twenty of this article.

(2) The amount of tentative tax determined under subdivision (1) of this subsection shall then be multiplied by a fraction the numerator of which is the taxpayer's West Virginia source income, determined in accordance with Part III of this article for the taxable year, and the denominator of which is such taxpayer's "federal adjusted gross income" for the taxable year as defined in section nine of this article: Provided, That if this computation produces a result that is out of all appropriate proportion to the amount of taxpayer's West Virginia source income, the tax commissioner may provide such equitable relief as the tax commissioner, in his or her discretion, considers to be appropriate under the circumstances.

(b) Special rules for estates and trusts . -- For purposes of subdivision (1), subsection (a) of this section:

(1) The "federal adjusted gross income" of an estate or trust shall be determined as if such estate or trust were an individual; and

(2) In the case of a trust, "federal adjusted gross income" shall be its "federal adjusted gross income" for the taxable year increased by the amount of any includable gain, reduced by any deductions properly allocable thereto, upon which the tax is imposed for the taxable year pursuant to Section 644 of the Internal Revenue Code.

(3) When an electing small business trust as defined in Section 1361(e)(1) of the Internal Revenue Code of 1986, as amended, is a shareholder in one or more electing small business corporations, the portion of the trust's income attributable to electing small business corporation stock held by the trust that is not included in the trust's federal taxable income pursuant to Section 641(c) of that code shall be included in West Virginia taxable income of the trust.

(c) Special rules for part-year residents . --

(1) For purposes of subdivision (1), subsection (a) of this section, the "federal adjusted gross income" of a part-year resident individual shall be taxpayer's federal adjusted gross income for the taxable year, as defined in section nine of this article, increased or decreased, as the case may be, by the items accrued under subdivision (1), subsection (b), section forty-four of this article, to the extent such items are not otherwise included in federal adjusted gross income for the taxable year, and decreased or increased, as the case may be by the items accrued under subdivision (2) of said subsection, to the extent such items are included in federal adjusted gross income for the taxable year; and

(2) In computing the tax due as if taxpayer were a resident of this state for the entire tax year, West Virginia adjusted gross income shall include the accruals specified in subdivision (1) of this subsection, with the applicable modifications described in section forty-four of this article.

(d) Definitions . --

(1) "Nonresident estate" means an estate of a decedent who was not a resident of this state at the time of his or her death.

(2) "Nonresident trust" means a trust which is not a resident trust, as defined in section seven of this article.

(3) "Part-year resident individual" means an individual who is not a resident or nonresident of this state for the entire taxable year.

(e) Effective date . -- (1) The provisions of this section shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-one. As to taxable years beginning prior to that date, the provisions of this article as then in effect shall apply and be controlling, and for that purpose, prior law is fully and completely preserved.

(2) The amendments to this section enacted in the regular session of the Legislature in two thousand five are effective for tax years beginning on or after the first day of January, two thousand five.

WVC 11-21-31 §11-21-31.

Repealed.

Acts, 1992 Reg. Sess., Ch. 204.

WVC 11-21-32 §11-21-32. West Virginia source income of nonresident individual.

(a) General. -- The West Virginia source income of a nonresident individual shall be the sum of the net amount of income, gain, loss and deduction entering into his or her federal adjusted gross income, as defined in the laws of the United States and section nine of this article, for the taxable year, derived from or connected with West Virginia sources, including:

(1) His or her distributive share of partnership income, gain, loss and deduction, determined under section thirty-seven; and

(2) His or her pro rata share of S corporation income, loss and deduction, determined under section thirty-seven, increased by reductions for taxes described in paragraphs (2) and (3), subsection (f), section 1366 of the Internal Revenue Code; and

(3) His or her share of estate or trust income, gain, loss and deduction, determined under section thirty-nine of this article.

(b) Income and deductions from West Virginia sources.

(1) Items of income, gain, loss and deduction derived from or connected with West Virginia sources shall be those items attributable to:

(A) The ownership of any interest in real or tangible personal property in this state; or

(B) A business, trade, profession or occupation carried on in this state; or

(C) In the case of a shareholder of an S corporation, the ownership of shares issued by such corporation, to the extent determined under section thirty-seven.

(2) Income from intangible personal property, including annuities, dividends, interest, and gains from the disposition of intangible personal property, shall constitute income derived from West Virginia sources only to the extent that such income is from property employed in a business, trade, profession or occupation carried on in this state.

(3) Deductions with respect to capital losses and net operating losses shall be based solely on income, gain, loss and deduction derived from or connected with West Virginia sources, under regulations of the tax commissioner, but otherwise shall be determined in the same manner as the corresponding federal deductions.

(4) The deduction allowed by section 215 of the Internal Revenue Code, relating to alimony, shall not constitute a deduction derived from West Virginia sources.

(c) Income and deductions partly from West Virginia sources. -- If a business, trade, profession or occupation is carried on partly within and partly without this state, as determined under regulations of the tax commissioner, the items of income, gain, loss and deduction derived from or connected with West Virginia sources shall be determined by apportionment and allocation under such regulations.

(d) Purchase and sale for own account. -- A nonresident, other than a dealer holding property for sale to customers in the ordinary course of his or her trade or business, shall not be deemed to carry on a business, trade, profession or occupation in this state solely by reason of the purchase and sale of property for his or her own account.

(e) Husband and wife. -- If a husband and wife determine their federal income tax on a joint return but determine their West Virginia income taxes separately, they shall determine their West Virginia source incomes separately as if their federal adjusted gross incomes had been determined separately.

(f) Effective date. -- This section as amended and reenacted in the year one thousand nine hundred ninety-two shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-one. As to prior taxable years, the provisions of this section and of section thirty-one of this article, as then in effect, are fully and completely preserved.

WVC 11-21-33 §11-21-33.

Repealed.

Acts, 1992 Reg. Sess., Ch. 204.

WVC 11-21-34 §11-21-34.

Repealed.

Acts, 1992 Reg. Sess., Ch. 204.

WVC 11-21-35 §11-21-35.

Repealed.

Acts, 1992 Reg. Sess., Ch. 204.

WVC 11-21-36 §11-21-36.

Repealed.

Acts, 1992 Reg. Sess., Ch. 204.

WVC 11-21-37 §11-21-37. Nonresident partners and shareholders of S corporations.

(a) Portion derived from West Virginia sources. --

(1) In determining the West Virginia source income of a nonresident partner of any partnership, there shall be included only the portion derived from or connected with West Virginia sources of such partner's distributive share, for federal income tax purposes, of items of partnership income, gain, loss and deduction, as such portion shall be determined under regulations of the tax commissioner consistent with the applicable rules of section thirty-two.

(2) In determining West Virginia source income of a nonresident shareholder of an S corporation, there shall be included only the portion derived from or connected with West Virginia sources of such shareholder's pro rata share of items of S corporation income, gain, loss and deduction entering into the shareholder's federal adjusted gross income, as defined in section nine, increased by reductions for taxes described in paragraphs (2) and (3), subsection (f), section 1366 of the Internal Revenue Code, as such portion shall be determined under regulations of the tax commissioner consistent with the applicable methods and rules for allocation under article twenty-four of this chapter.

(b) Special rules as to West Virginia sources. -- In determining the sources of a nonresident partner's income, no effect shall be given to a provision of the partnership agreement which:

(1) Characterizes payments to the partner as being for services or for the use of capital; or

(2) Allocates to the partner, as income or gain from sources outside West Virginia, a greater proportion of his or her distributive share of partnership income or gain than the ratio of partnership income or gain from sources outside West Virginia to partnership income or gain from all sources, except as authorized in subsection (d); or

(3) Allocates to the partner a greater proportion of a partnership item of loss or deduction connected with West Virginia sources than his or her proportionate share, for federal income tax purposes, of partnership loss or deduction generally, except as authorized in subsection (c).

(c) Alternative methods. -- The tax commissioner may, on written application filed on or before the due date of the partner's or S corporation shareholder's return under this article for that taxable year determined without regard to any extension of time for filing, authorize the use of such other method or methods of determining the nonresident partner's portion of partnership items, or the nonresident S corporation shareholder's portion of S corporation items, derived from or connected with West Virginia sources, and the modifications related thereto, as may be appropriate and equitable, on such terms and conditions as the commissioner may require.

(d) Application of rules for resident partners to nonresident partners and shareholders.

(1) For a partner's distributive share of items, see subsection (a) of section seventeen of this article.

(2) The character of partnership items for a nonresident partner shall be determined under subsection (b) of section seventeen of this article.

(3) The effect of a special provision in a partnership agreement, other than a provision referred to in subsection (b) of this section, having the principal purpose of avoidance or evasion of tax under this article shall be determined under subsection (c) of section seventeen of this article.

(e) Application of rules for resident S corporation shareholders to nonresident S corporation shareholders.

(1) For an S corporation shareholder's distributive share of S corporation items, see subsection (a) of section seventeen-a of this article.

(2) The character of S corporation items for a nonresident shareholder of an S corporation shall be determined under subsection (b) of section seventeen-a of this article.

(f) Effective date. -- The amendments to this section enacted in the year one thousand nine hundred ninety-two shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-two. As to prior taxable years the provisions of this section and of section thirty-seven-a of this article, as then in effect, are fully and completely preserved.

WVC 11-21-37a §11-21-37a.

Repealed.

Acts, 1992 Reg. Sess., Ch. 204.

WVC 11-21-38 §11-21-38. West Virginia source income of nonresident estate or trust.

(a) General. -- The West Virginia source income of a nonresident estate or trust shall be determined as follows:

(1) Items in distributable net income. -- There shall be determined its share of income, gain, loss and deduction from West Virginia sources under section thirty-nine of this article (relating to items entering into the definition of distributable net income).

(2) Items not in distributable net income. -- There shall be added to or subtracted (as the case may be) the amount derived from or connected with West Virginia sources of any income, gain, loss and deduction which would be included in the determination of federal adjusted gross income if the estate or trust were an individual and which is recognized for federal income tax purposes, but excluded from the definition of federal distributable net income of the estate or trust. The source of such income, gain, loss and deduction shall be determined in accordance with the applicable rules of section thirty-two of this article as in the case of a nonresident individual.

(b) Special West Virginia source rules. -- Deductions with respect to capital losses and net operating losses shall be based solely on income, gains, losses and deductions derived from or connected with West Virginia sources, under regulations of the tax commissioner, but otherwise determined in the same manner as the corresponding federal deductions.

(c) Effective date. -- The provisions of this section as amended and reenacted in the year one thousand nine hundred ninety-two shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-one. As to prior taxable years this section, as then in effect, is fully and completely preserved.

WVC 11-21-39 §11-21-39. Share of nonresident estate, trust or beneficiary in income from West Virginia sources.

(a) General. -- The share of a nonresident estate or trust under paragraph (1) of subsection (a) of section thirty-eight, and the share of a nonresident beneficiary of any estate or trust under subsection (a) of section thirty-two of this article, in estate or trust income, gain, loss and deduction from West Virginia sources shall be determined as follows:

(1) Items of distributable net income from West Virginia sources. -- There shall be determined the items of income, gain, loss and deduction, derived from or connected with West Virginia sources, which would be included in the determination of federal adjusted gross income if the estate or trust were an individual and which enter into the definition of federal distributable net income of the estate or trust for the taxable year including such items from another estate or trust of which the first estate or trust is a beneficiary. Such determination of source shall be made in accordance with the applicable rules of section thirty-two of this article as in the case of a nonresident individual.

(2) Allocation among estate or trust beneficiaries.

(A) The amounts determined under subdivision (1) of subsection (a) shall be allocated among the estate or trust and its beneficiaries (including, solely for the purposes of this allocation, resident beneficiaries) in proportion to their respective shares of federal distributable net income.

(B) The amounts so allocated shall have the same character under this article as for federal income tax purposes. Where an item entering into the computation of such amounts is not characterized for federal income tax purposes, it shall have the same character as if realized directly from the source from which realized by the estate or trust, or incurred in the same manner as incurred by the estate or trust.

(b) Alternative methods of determining shares.

(1) If the estate or trust has no federal distributable net income for the taxable year, the share of each beneficiary (including, solely for the purposes, of this allocation, resident beneficiaries) in the net amount determined under subdivision (1) of subsection (a) shall be in proportion to the beneficiary's share of the estate or trust income for such year, under local law or the governing instrument, which is required to be distributed currently and any such other amounts of such income distributed in such year. Any balance of such net amounts shall be allocated to the estate or trust.

(2) The tax commissioner may, on written application filed on or before the due date of the return due under this article for the taxable year from the estate or trust determined without regard to any extension of time for filing such return, authorize use of such other methods of determining the representative shares of the beneficiaries and of the estate or trust in its income derived from West Virginia sources, and the modifications related thereto, as may be appropriate and equitable, on such terms and conditions as the commissioner may require.

(3) The tax commissioner may by regulation establish such other method or methods of determining the respective shares of the beneficiaries and of the estate or trust in its income derived from West Virginia sources as may be appropriate and equitable. Such method may be used by the fiduciary in his or her discretion whenever the allocation of such respective shares under subsection (a) or subdivision (1) of subsection (b) would result in an inequity which is substantial in amount.

(c) Effective date. -- The amendments to this section enacted in the year one thousand nine hundred ninety-two shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-one.

WVC 11-21-40 §11-21-40. Credit for income tax of state of residence.

(a) General. -- A nonresident shall be allowed a credit against the tax otherwise due under this article for any income tax imposed for the taxable year by another state of the United States or by the District of Columbia, of which the taxpayer is a resident.

(b) Limitation. -- The credit under this section shall not exceed either:

(1) The percentage of the other tax determined by dividing the portion of the taxpayer's West Virginia income which is also subject to the other tax by the total amount of his income subject to such other tax, or

(2) The percentage of the tax otherwise due under this article, determined by dividing the portion of the taxpayer's West Virginia income which is also subject to the other tax by the total amount of the taxpayer's West Virginia income.

(c) Exceptions. -- No credit may be allowed under this section for a taxable year beginning after the thirty-first day of December, one thousand nine hundred eighty-seven, except pursuant to a written agreement between this state and the nonresident individual's state of residence. The state tax commissioner is hereby authorized to enter into such agreements necessary to effectuate the purpose of this section when he determines that such agreements are in the best interest of this state and its residents.

(d) Definition. -- For purposes of this section West Virginia income means:

(1) The West Virginia adjusted gross income of an individual, or

(2) The income derived from West Virginia sources by an estate or trust, determined in accordance with the applicable rules of section thirty-two as in the case of a nonresident individual.

WVC 11-21-41 §11-21-41. Special case in which a nonresident need not file West Virginia income tax return.

A nonresident individual, who at no time during the taxable year was a resident of this state, is hereby relieved of filing an income tax return to this state for that taxable year provided:

(1) His only income from sources within this state was from salaries, wages, or compensation for personal services performed within this state, and

(2) Such salaries, wages or compensation for personal services were subject to income taxation by the state of his residence under a net income tax law substantially similar in principle to this article, and

(3) The laws of such other state contain a provision substantially similar in effect to that contained in section forty of this article and applicable to residents of this state, and

(4) The laws of such other state afford like treatment to a resident of this state who earned salaries, wages or compensation for personal services in such other state.

This section shall apply with respect to taxable years beginning after December thirty-one, one thousand nine hundred sixty-three.

WVC 11-21-42 §11-21-42. Military incentive tax credit.

Every employer entitled to receive a tax credit against his West Virginia personal income tax liability as provided in article two-c, chapter twenty-one-a of this code shall receive the credit for the period and in the amount specified in said article two-c. The state tax commissioner shall provide by appropriate rule or regulation for the reporting, filing and application of claims of the tax credit provided for in a manner in conformity with the legislative purpose as declared in section two, article two-c, chapter twenty-one-a of this code.

WVC 11-21-43 §11-21-43. Credit for consumers sales and service tax and use tax paid.

The tax imposed by this article shall be subject to the credit set forth in section nine-b, article fifteen of this chapter and the credit set forth in section three-b, article fifteen-a of this chapter.

WVC 11-21-44 §11-21-44. West Virginia source income of part-year resident individuals.

(a) Individuals. -- The West Virginia source income of a part-year resident individual shall be the sum of the following:

(1) Federal adjusted gross income for the period of residence, computed as if his or her taxable year for federal income tax purposes were limited to the period of residence.

(2) West Virginia source income for the period of nonresidence determined in accordance with section thirty-two of this article as if his or her taxable year for federal income tax purposes were limited to the period of nonresidence.

(3) The special accruals required by subsection (b) of this section.

(b) Special accruals.

(1) If an individual changes his or her status from resident to nonresident he or she shall, regardless of his or her method of accounting, accrue to the portion of the taxable year prior to such change in status any items of income, gain, loss or deduction accruing prior to the change of status, if not otherwise properly entering into his or her federal adjusted gross income for such portion of the taxable year or a prior taxable year under his or her method of accounting.

(2) If an individual changes his or her status from nonresident to resident, he or she shall, regardless of his or her method of accounting, accrue to the portion of the taxable year prior to such change of status any items of income, gain, loss or deduction accruing prior to the change of status, other than items derived from or connected with West Virginia sources, if not otherwise properly entering into his or her federal adjusted gross income for such portion of the taxable year or for a prior taxable year under his or her method of accounting.

(3) No item of income, gain, loss or deduction which is accrued under this subsection shall be taken into account in determining West Virginia adjusted gross income or West Virginia source income for any subsequent period.

(4) The accruals under this subsection shall not be required if the individual files with the tax commissioner a bond or other security acceptable to the tax commissioner, conditioned upon the inclusion of amounts accruable under this subsection in West Virginia adjusted gross income or West Virginia source income for one or more subsequent taxable years as if the individual had not changed his or her resident status.

(c) Effective date. -- The provisions of this section shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-one, as amended. For taxable years that began prior to the first day of January, one thousand nine hundred ninety-two, the provisions of section fifty- four, which is repealed by this bill, apply and for that purpose, the provisions of section fifty-four are fully and completely preserved.

WVC 11-21-45 §11-21-45.

Reserved for future use.

WVC 11-21-46 §11-21-46.

Reserved for future use.

WVC 11-21-47 §11-21-47.

Reserved for future use.

WVC 11-21-48 §11-21-48.

Reserved for future use.

WVC 11-21-49 §11-21-49.

Reserved for future use.

WVC 11-21-50 §11-21-50.

Reserved for future use.

WVC 11-21-51 §11-21-51. Returns and liabilities.
(a) General. -- On or before the fifteenth day of the fourth month following the close of a taxable year, an income tax return under this article shall be made and filed by or for:

(1) Every resident individual required to file a federal income tax return for the taxable year, or having West Virginia adjusted gross income for the taxable year, determined under section twelve of this article in excess of the sum of his or her West Virginia personal exemptions: Provided, That the tax commissioner shall by legislative rule specify circumstances when an individual is not required to file a return as a result of the application of section ten of this article;

(2) Every resident estate or trust required to file a federal income tax return for the taxable year, or having any West Virginia taxable income for the taxable year, determined under section eighteen of this article;

(3) Every nonresident individual having any West Virginia adjusted gross income for the taxable year, determined under section thirty-two of this article, in excess of the sum of his or her West Virginia personal exemptions, except when all of such nonresident individual's West Virginia source income is taxed on a composite return filed under this article for the taxable year; and

(4) Every nonresident estate or trust having items of income or gain derived from West Virginia sources, determined in accordance with the applicable rules of section thirty-two of this article as in the case of a nonresident individual, in excess of its West Virginia exemption.

(b) Husband and wife. --

(1) If the federal income tax liability of husband or wife is determined on a separate federal income tax return, their West Virginia income tax liabilities and returns shall be separate.

(2) If the federal income tax liabilities of husband and wife other than a husband and wife described in subdivision (3) of this subsection are determined on a joint federal return, or if neither files a federal return:

(A) They shall file a joint West Virginia income tax return, and their tax liabilities shall be joint and several; or

(B) They may elect to file separate West Virginia income tax returns on a single or separate form, as may be required by the tax commissioner, if they comply with the requirements of the tax commissioner in setting forth information, and in such event their tax liabilities shall be separate.

(3) If either husband and/or wife is a resident and the other is a nonresident, they shall file separate West Virginia income tax returns on such single or separate forms as may be required by the tax commissioner, and in such event their tax liabilities shall be separate.

(c) Decedents. -- The return of any deceased individual shall be made and filed by his or her executor, administrator or other person charged with his or her property.

(d) Individuals under a disability. -- The return for an individual who is unable to make a return by reason of minority or other disability shall be made and filed by his or her guardian, committee, fiduciary or other person charged with the care of his or her person or property (other than a receiver in possession of only a part of his or her property), by his or her duly authorized agent.

(e) Estates and trusts. -- The return for an estate or trust shall be made and filed by the fiduciary.

(f) Joint fiduciaries. -- If two or more fiduciaries are acting jointly, the return may be made by any one of them.

(g) Tax a debt. -- Any tax under this article, and any increase, interest or penalty thereon, shall, from the time it is due and payable, be a personal debt of the person liable to pay the same, to the state of West Virginia.

(h) Cross reference. -- For provisions as to information returns by partnerships, employers and other persons, see section fifty-eight of this article. For provisions as to composite returns of nonresidents, see section fifty-one-a of this article. For provisions as to information returns by electing small business corporations, see section thirteen-b, article twenty-four of this chapter.

(i) Effective date. -- This section, as amended by this act in the year one thousand nine hundred ninety-six, shall apply to all taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-five.

WVC 11-21-51a §11-21-51a. Composite returns.

(a) Nonresident individuals who are required by this article to file a return and who are:

(1) Partners in a partnership deriving income from a West Virginia source or sources; or

(2) Shareholders of a corporation having income from a West Virginia source or sources and which made an election under section 1362(a) of the Internal Revenue Code (S corporations) for the taxable year; or

(3) Beneficiaries who received a distribution (actual or deemed) from an estate or trust having income from a West Virginia source or sources,

may, upon payment of a composite return processing fee of fifty dollars, file a composite return in accordance with the provisions of this section.

(b) In filing a composite return and determining the tax due thereon, no personal exemptions may be utilized, and the rate of tax shall be six and one-half percent. The entity or entities, to which the composite return relates are responsible for collection and remittance of all income tax due at the time the return is filed.

(c) The composite return shall be filed in a manner and form acceptable to and in accordance with instructions from the commissioner, and need not be signed by all nonresident individuals on whose behalf the return is filed: Provided, That the return is signed by a partner, in the case of a partnership, a corporate officer, in the case of a corporation, by a trustee, in the case of a trust or by an executor or administrator in the case of an estate.

(d) For the purposes of this section, a composite return means a return filed on a group basis as though there was one taxpayer, and sets forth the name, address, taxpayer identification number and percent ownership or interest of each nonresident individual who consents to be included in the composite return in addition to return information as that term is defined in section five-d, article ten of this chapter; the term includes block filing: Provided, That nothing in this section shall prohibit a nonresident from also filing a separate nonresident personal income tax return for the taxable year and a separate return shall be filed if the nonresident has income from any other West Virginia source. If a separate return is also filed for the taxable year, the nonresident shall be allowed credit for his or her share of the tax remitted with the composite return for that taxable year.

(e) This section, as amended in the year one thousand nine hundred ninety-two, shall apply to composite returns filed after the thirty-first day of December, one thousand nine hundred ninety-two.

WVC 11-21-52 §11-21-52. Time and place for filing returns and paying tax.

A person required to make and file a return under this article shall, without assessment, notice or demand, pay any tax due thereon to the tax commissioner on or before the date fixed for filing such return (determined without regard to any extension of time for filing the return). The tax commissioner shall prescribe by regulation the place for filing any return, declaration, statement, or other document required pursuant to this article and for payment of any tax.

WVC 11-21-53 §11-21-53. Signing of returns and other documents.

(a) General. -- Any return, declaration, statement or other document required to be made pursuant to this article shall be signed in accordance with regulations or instructions prescribed by the tax commissioner. The fact that an individual's name is signed to a return, declaration, statement, or other document shall be prima facie evidence for all purposes that the return, declaration, statement or other document was actually signed by him.

(b) Partnerships. -- Any return, statement or other document required of a partnership shall be signed by one or more partners. The fact that a partner's name is signed to a return, statement, or other document shall be prima facie evidence for all purposes that such partner is authorized to sign on behalf of the partnership.

(c) Certifications. -- The making or filing of any return, declaration, statement or other document or copy thereof required to be made or filed pursuant to this article, including a copy of a federal return, shall constitute a certification by the person making or filing such return, declaration, statement or other document or copy thereof that the statements contained therein are true and that any copy filed is a true copy.

WVC 11 - 21 - 54 §11-21-54. Electronic filing for certain tax preparers.
(a) If an income tax return preparer filed more than one hundred personal income tax returns for any taxable year that began after January 1, 2005, and if during calendar year 2006 or any calendar year thereafter that income tax preparer prepares one or more personal income tax returns using tax preparation software for a previous taxable year, then for each current taxable year all unamended personal income tax returns prepared by that preparer shall be filed electronically, except as provided in subsections (c) and (d) of this section: Provided, That if an income tax return preparer filed more than twenty-five personal income tax returns for any tax year that began on or after January 1, 2010, and if that income tax preparer prepares one or more personal income tax returns using tax preparation software, then for each tax year beginning on or after January 1, 2011, all unamended personal income tax returns prepared by that preparer shall be filed electronically, except as provided in subsections (c) and (d) of this section.

(b) For purposes of this section:

(1) "Income tax preparer" means any person who prepares, in exchange for compensation, or who employs another person to prepare, in exchange for compensation, all or a substantial portion of any return for a taxpayer for the tax imposed by this article and who is identified as the preparer for the taxpayer on the return. A person who only performs those acts described in clauses (i) through (iv) of Section 7701(a)(36)(B) of the Internal Revenue Code with respect to the preparation of a return for a trust or estate for which he or she is a fiduciary or a return for a partnership of which he or she is a partner is not an income tax preparer for purposes of this section.

(2) "Electronic filing" or "e-filing" means filing using electronic technology such as computer modem, magnetic media, optical disk, facsimile machine, telephone or other technology approved by the Tax Commissioner, in such manner as he or she deems acceptable.

(3) "Tax preparation software" means any computer software program intended for accounting or tax return preparation.

(c) Subsection (a) of this section shall cease to apply to an income tax preparer if, for the previous taxable year, that income tax preparer prepared no more than twenty-five personal income tax returns.

(d) This section first applies to personal income tax returns required to be filed for taxable years beginning January 1, 2006. This section does not require electronic filing of: (1) Returns that were not required to be filed for taxable years beginning prior to that date; (2) returns for prior taxable years beginning prior to that date; or (3) amended returns for any taxable year.

(e) An income tax preparer who is required to e-file under this section but does not do so is liable for a penalty in the amount of $25 for each return prepared that is not e-filed, unless the preparer shows that the failure to do so is due to technical inability to comply on the part of a tax preparer or a documented election by a client not to file electronically.

(f) The commissioner shall implement the provisions of this section using any combination of notices, forms, instructions and rules that he or she deems necessary.

WVC 11-21-55 §11-21-55. Declaration of estimated tax.

(a) Requirement of declaration. -- Every resident and nonresident individual shall make a declaration of his estimated tax for the taxable year, containing such information as the tax commissioner may prescribe by regulations or instructions, if his West Virginia adjusted gross income, other than from wages on which tax is withheld under this article, can reasonably be expected to exceed four hundred dollars plus the sum of the West Virginia personal exemptions to which he is entitled.

(b) Definition of estimated tax. -- The term "estimated tax" means the amount which an individual estimates to be his income tax under this article for the taxable year, less the amount which he estimates to be the sum of any credits allowable against the tax.

(c) Joint declaration of husband and wife. -- A husband and wife may make a joint declaration of estimated tax as if they were one taxpayer, in which case the liability with respect to the estimated tax shall be joint and several. No joint declaration may be made if husband and wife are separated under a decree of divorce or of separate maintenance, or if they have different taxable years. If a joint declaration is made but husband and wife elect to determine their taxes under this article separately, the estimated tax for such year may be treated as the estimated tax of either husband or wife, or may be divided between them, as they may elect.

(d) Time for filing declaration. -- A declaration of estimated tax of an individual other than a farmer shall be filed on or before the fifteenth day of April of the taxable year, except that if the requirements of subsection (a) are first met:

(1) After the first day of April and before the second day of June of the taxable year, the declaration shall be filed on or before the fifteenth day of June, or

(2) After the first day of June and before the second day of September of the taxable year, the declaration shall be filed on or before the fifteenth day of September, or

(3) After the first day of September of the taxable year, the declaration shall be filed on or before the fifteenth day of January of the succeeding year.

(e) Declaration of estimated tax by a farmer. -- A declaration of estimated tax of an individual having an estimated West Virginia adjusted gross income from farming for the taxable year which is at least two thirds of his total estimated West Virginia adjusted gross income for the taxable year may be filed at any time on or before the fifteenth day of January of the succeeding year, in lieu of the time otherwise prescribed.

(f) Declaration of estimated tax of forty dollars or less. -- A declaration of estimated tax of an individual having a total estimated tax for the taxable year of forty dollars or less may be filed at any time on or before the fifteenth day of January of the succeeding year under regulations of the tax commissioner.

(g) Amendments of declaration. -- An individual may amend a declaration under regulations of the tax commissioner.

(h) Return as declaration or amendment. -- If on or before the fifteenth day of February of the succeeding taxable year an individual other than a farmer files his return for the taxable year for which the declaration is required, and pays therewith the full amount of the tax shown to be due on the return:

(1) Such return shall be considered as his declaration, if no declaration was required to be filed during the taxable year, but is otherwise required to be filed on or before the fifteenth day of January.

(2) Such return, if filed on or before the fifteenth day of January, shall be considered an amendment permitted by subsection (g) if the tax shown on the return is greater than the estimated tax shown in a declaration previously made.

(i) Fiscal year. -- This section shall apply to a taxable year other than a calendar year by the substitution of the months of such fiscal year for the corresponding months specified in this section.

(j) Short taxable year. -- An individual having a taxable year of less than twelve months shall make a declaration in accordance with regulations of the tax commissioner.

(k) Declaration for individual under a disability. -- The declaration of estimated tax for an individual who is unable to make a declaration by reason of minority or other disability shall be made and filed by his guardian, committee, fiduciary or other person charged with the care of his person or property (other than a receiver in possession of only a part of his property), or by his duly authorized agent.

(1) Return of farmer as declaration of estimated tax. -- If on or before the first day of March of the succeeding taxable year an individual who is a farmer files his return for the taxable year for which the declaration is required, and pays therewith the full amount of the tax shown to be due on the return, such return shall be considered as his declaration, if no declaration was required to be filed during the taxable year, but is otherwise required to be filed on or before the fifteenth day of January, for a taxable year ending after the thirty-first day of December, one thousand nine hundred eighty-nine.

WVC 11-21-56 §11-21-56. Payments of estimated tax.

(a) General. -- The estimated tax with respect to which a declaration is required shall be paid as follows:

(1) If the declaration is filed on or before the fifteenth day of April of the taxable year, the estimated tax shall be paid in four equal installments. The first installment shall be paid at the time of the filing of the declaration, and the second, third and fourth installments shall be paid on the following fifteenth day of June, fifteenth day of September, and fifteenth day of January, respectively.

(2) If the declaration is filed after the fifteenth day of April and not after the fifteenth day of June of the taxable year, and is not required to be filed on or before the fifteenth day of April of the taxable year, the estimated tax shall be paid in three equal installments. The first installment shall be paid at the time of the filing of the declaration, and the second and third installments shall be paid on the following fifteenth day of September and fifteenth day of January, respectively.

(3) If the declaration is filed after the fifteenth day of June and not after the fifteenth day of September of the taxable year, and is not required to be filed on or before the fifteenth day of June of the taxable year, the estimated tax shall be paid in two equal installments. The first installment shall be paid at the time of the filing of the declaration, and the second shall be paid on the following fifteenth day of January.

(4) If the declaration is filed after the fifteenth day of September of the taxable year, and is not required to be filed on or before the fifteenth day of September of the taxable year, the estimated tax shall be paid in full at the time of the filing of the declaration.

(5) If the declaration is filed after the time prescribed therefor, or after the expiration of any extension of time therefor, paragraphs (2), (3) and (4) of this subsection shall not apply, and there shall be paid at the time of such filing all installments of estimated tax payable at or before such time, and the remaining installments shall be paid at the times at which, and in the amounts in which, they would have been payable if the declaration had been filed when due.

(b) Farmers. -- If an individual referred to in section fifty- five (e) (relating to income from farming) makes a declaration of estimated tax after the fifteenth day of September of the taxable year and on or before the following fifteenth day of January, the estimated tax shall be paid in full at the time of the filing of the declaration.

(c) Amendments of declaration. -- If any amendment of a declaration is filed, the remaining installments, if any, shall be rateably increased or decreased (as the case may be) to reflect any increase or decrease in the estimated tax by reason of such amendment, and if any amendment is made after the fifteenth day of September of the taxable year, any increase in the estimated tax by reason thereof shall be paid at the time of making such amendment.

(d) Application to short taxable year. -- This section shall apply to a taxable year of less than twelve months in accordance with regulations of the tax commissioner.

(e) Fiscal year. -- This section shall apply to a taxable year other than a calendar year by the substitution of the months of such fiscal year for the corresponding months specified in this section.

(f) Installments paid in advance. -- An individual may elect to pay any installment of his estimated tax prior to the date prescribed for its payment.

WVC 11-21-57 §11-21-57. Extensions of time.

(a) General. -- The tax commissioner may grant a reasonable extension of time for payment of tax or estimated tax (or any installment), or for filing any return, declaration, statement, or other document required pursuant to this article, on such terms and conditions as he may require. Except for a taxpayer who is outside the United States, no such extension shall exceed six months.

(b) Amount determined as deficiency. -- The tax commissioner may, under regulations, extend the time for payment of an amount determined as a deficiency for a period not to exceed eighteen months from the date designated for payment of the deficiency, and under exceptional circumstances, for a further period not to exceed twelve months. An extension under this subsection may be granted only where it is established to the satisfaction of the tax commissioner that the payment of a deficiency upon the date designated for payment would result in undue hardship. No extension shall be granted if any part of the deficiency is due to intentional disregard of rules and regulations or to fraud.

(c) Claims in bankruptcy or receivership proceedings. -- Extension of time for payment of any portion of a claim for tax allowed in bankruptcy, receivership or similar proceedings, which is unpaid, may be granted subject to the same provisions and limitations as in the case of a deficiency in such tax.

(d) Furnishing of security. -- If any extension of time is granted for payment of any tax or deficiency, the tax commissioner may require the taxpayer to furnish a bond or other security in an amount not exceeding twice the amount for which the extension of time for payment is granted on such terms and conditions as the tax commissioner may require.

WVC 11-21-58 §11-21-58. Requirements concerning returns, notices, records and statements.

(a) General. -- The tax commissioner may prescribe regulations as to the keeping of records, the content and form of returns and statements, and the filing of copies of federal income tax returns and determinations. The tax commissioner may require any person, by regulation or notice served upon such person, to make such returns, render such statements, or keep such records, as the tax commissioner may deem sufficient to show whether or not such person is liable under this article for tax or for collection of tax.

(b) Partnerships. -- Every partnership having a resident partner or having any income derived from West Virginia sources, determined in accordance with the applicable rules of section thirty-two as in the case of a nonresident individual, shall make a return for the taxable year setting forth all items of income, gain, loss and deduction and such other pertinent information as the tax commissioner may by regulations and instructions prescribe.

(c) Information at source. -- The tax commissioner may prescribe regulations and instructions requiring returns of information to be made and filed on or before the twenty-eighth day of February of each year as to the payment or crediting in any calendar year of amounts of six hundred dollars or more to any taxpayer under this article. Such returns may be required of any person, including lessees or mortgagors of real or personal property, fiduciaries, employers, and all officers and employees of this state, or of any municipal corporation or political subdivision of this state, having the control, receipt, custody, disposal or payment of interest, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments or other fixed or determinable gains, profits or income, except interest coupons payable to bearer. A duplicate of the statement as to tax withheld on wages, required to be furnished by an employer to an employee, shall constitute the return of information required to be made under this section with respect to such wages.

(d) Notice of qualification as receiver, etc. -- Every receiver, trustee in bankruptcy, assignee for benefit of creditors, or other like fiduciary shall give notice of his qualification as such to the tax commissioner, as may be required by regulation.

WVC 11-21-59 §11-21-59. Report of change in federal taxable income.

If the amount of a taxpayer's federal taxable income reported on his federal income tax return for any taxable year is changed or corrected by the United States internal revenue service or other competent authority, or as the result of a renegotiation of a contract or subcontract with the United States, the taxpayer shall report such change or correction in federal taxable income within ninety days after the final determination of such change, correction, or renegotiation, or as otherwise required by the tax commissioner, and shall concede the accuracy of such determination or state wherein it is erroneous. Any taxpayer filing an amended federal income tax return shall also file within ninety days thereafter an amended return under this article, and shall give such information as the tax commissioner may require. The tax commissioner may by regulation prescribe such exceptions to the requirements of this section as he deems appropriate.

WVC 11-21-60 §11-21-60. Change of election.

Any election expressly authorized by this article may be changed on such terms and conditions as the tax commissioner may prescribe by regulation.

WVC 11-21-61 §11-21-61. Extension of time for performing certain acts due to Desert Shield service.

(a) General rule. -- For purposes of applying this article and article ten of this chapter with respect to the tax liability (including any interest, penalty, additional amount, or addition to tax) of any individual who performed Desert Shield services, the period during which such individual performed such services, and the next one hundred eighty days thereafter, shall be disregarded in determining whether any of the acts referred to in subsection (b) were performed within the time prescribed therefor.

(b) Time for performing certain acts postponed by reason of Desert Shield service. -- Whenever the general rule specified in subsection (a) applies, it shall apply to determine:

Whether any of the following acts was performed within the time prescribed therefor;

(A) Filing any return of income under this article (except income tax withheld at source);

(B) Payment of any income tax due under this article (except income tax withheld at source), or any installment thereof or of any other liability to this state in respect thereof;

(C) Filing a petition for reassessment or refund of any tax administered under article ten of this chapter (including any interest, penalty, additional amount or addition to tax);

(D) Allowance of a credit or refund of any tax administered under article ten of this chapter (including any interest, penalty, additional amount or addition to tax);

(E) Filing a claim for credit or refund of any tax administered under article ten of this chapter (including any interest, penalty, additional amount or addition to tax);

(F) Appealing any appealable decision of the tax commissioner to the courts of this state, or for appealing to the supreme court of appeals a circuit court decision affirming, in whole or in part, the decision of the tax commissioner;

(G) Assessment of any tax (including any penalty, additional amount or addition to tax);

(H) Giving or making any notice or demand for the payment of any tax administered under article ten of this chapter (including any interest, penalty, additional amount or addition to tax), or with respect to any liability to this state in respect of any such tax;

(I) Collection by the tax commissioner, by levy or otherwise, of any liability in respect of any tax administered under article ten of this chapter;

(J) Bringing suit by any officer on behalf of this state, in respect of any liability in respect of any tax administered under article ten of this chapter;

(K) Any other act required or permitted under article nine or ten of this chapter or under any article of this chapter administered under said article ten, or specified in regulations promulgated under this section by the tax commissioner, in conformity with the provisions of article three, chapter twenty- nine-a of this code.

(c) Treatment of individuals performing Desert Shield services.
(1) In general. -- Any individual who performed Desert Shield service shall be entitled to the benefits of this section.

(2) Desert Shield service. -- For purposes of this section, the term "Desert Shield service" means any service in a unit of the armed forces of the United States (as defined in Section 7701(a)(15) of the Internal Revenue Code of 1986) or in support of any such unit if:

(A) Such service is performed in the area designated by the President of the United States as the "Persian Gulf Desert Shield Area";

(B) Such service is performed during any portion of the period beginning the second day of August, one thousand nine hundred ninety, and ending on the date on which any portion of the area referred to in subparagraph (A) is designated a combat zone pursuant to Section 112 of the Internal Revenue Code of 1986; or

(C) Such service is performed during any portion of the period that there is in effect a designation by the President of the United States that the "Persian Gulf Desert Shield Area" is a combat zone, pursuant to Section 112 of the Internal Revenue code.

(3) Hospitalization. -- An individual shall be treated as performing Desert Shield services during any period of continuous qualified hospitalization attributable to an injury received while performing Desert Shield service. The term "qualified hospitalization" means:

(A) Any hospitalization outside the United States; and

(B) Any hospitalization inside the United States, except that not more than five years of hospitalization may be taken into account under this subparagraph (B); and this subparagraph shall not apply for purposes of applying this section with respect to the spouse of an individual entitled to the benefits of subsection (a) of this section.

(d) Special rules.
(1) Application to spouse. -- The provisions of this section shall apply to the spouse of any individual entitled to the benefits of subsection (a). The preceding sentence shall not cause this section to apply for any spouse for any taxable year beginning more than two years after the date designated by the President of the United States, under Section 112 of the Internal Revenue Code, as the date of termination of combatant activities in the Persian Gulf Desert Shield area.

(2) Missing status. -- The period of service referred to in subsection (c) shall include the period during which an individual entitled to benefits under subsection (a) is in missing status, within the meaning of Section 6013(f)(3) of the Internal Revenue Code of 1986.

(e) Exceptions.
(1) Jeopardy assessments or collection. -- Notwithstanding the provisions of subsection (a), if the tax commissioner determines that collection of the amount of any tax would be jeopardized by delay, the provisions of subsection (a) shall not operate to stay the assessment of such amount, or the collection of such amount by levy or otherwise as authorized by law. There shall be excluded from any amount assessed or collected pursuant to this subsection the amount of interest, penalty, additional amount and addition to the tax, if any, in respect of the period disregarded under subsection (a).

(2) Action taken before ascertainment of rights to benefits. -- The assessment or collection of any tax administered under article ten of this chapter may be made, begun or prosecuted in accordance with law, without regard to the provisions of subsection (a), unless prior to such assessment, collection, action or proceeding it is ascertained that the person concerned is entitled to the benefits of subsection (a).

(3) Notwithstanding the provisions of paragraphs (1) and (2), the provision of this subsection shall be applied in conformity with the Soldiers' and Sailors' Civil Relief Act.

(f) Effective Date. -- The provisions of this section shall be retroactive to the second day of August, one thousand nine hundred ninety.

WVC 11-21-62 §11-21-62. Income taxes of members of armed forces on death.

(a) General rule. -- In the case of any individual who dies while in active service as a member of the armed forces of the United States, if such death occurred while serving in a combat zone (as determined under Section 112 of the Internal Revenue Code of 1986) or as a result of wounds, disease or injury incurred while so serving:

(1) Any tax imposed by this article shall not apply with respect to the taxable year in which falls the date of his or her death, or with respect to any prior taxable year ending on or after the first day he or she served in a combat zone after the first day of August, one thousand nine hundred ninety; and

(2) Any tax under this article for taxable years preceding those specified in paragraph (1) which is unpaid at the date of his or her death (including interest, additions to tax and additional amounts) shall not be assessed and if assessed the assessment shall be abated and if the assessment has been collected, the amount collected shall be credited or refunded as an overpayment.

(b) Individuals in missing status. -- For purposes of this section, in the case of an individual who was in a missing status within the meaning of Section 6013(f)(3)(A) of the Internal Revenue Code of 1986, the date of such individual's death shall be treated as being not earlier than the date on which a determination of such individual's death is made under section 556, Title 37 of the United States Code. Subsection (a)(1) shall not apply for any taxable year beginning more than two years after the date designated under Section 112 of the Internal Revenue code as the date of termination of combatant activities in a combat zone.

(c) Certain military or civilian employees of the United States dying as a result of injuries sustained overseas.
(1) In general. -- In the case of any individual who dies while a military or civilian employee of the United States, if such death occurs as a result of wounds or injury which were incurred while the individual was a military or civilian employee of the United States and which were incurred outside the United States in a terroristic or military action, any tax imposed by this article shall not apply:

(A) With respect to the taxable year in which falls the date of such individual's death; and

(B) With respect to any prior taxable year in the period beginning with the last taxable year ending before the taxable year in which the wounds or injury were incurred.

(2) Terroristic or military action. -- For purposes of paragraph (1), the term "terroristic or military action" means any action which is terroristic or military action for purposes of Section 692 of the Internal Revenue Code of 1986.

(d) Effective date. -- The provisions of this section shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety.

WVC 11-21-63 §11-21-63.

Reserved for future use.

WVC 11-21-64 §11-21-64.

Reserved for future use.

WVC 11-21-65 §11-21-65.

Reserved for future use.

WVC 11-21-66 §11-21-66.

Reserved for future use.

WVC 11-21-67 §11-21-67.

Reserved for future use.

WVC 11-21-68 §11-21-68.

Reserved for future use.

WVC 11-21-69 §11-21-69.

Reserved for future use.

WVC 11-21-70 §11-21-70.

Reserved for future use.

WVC 11-21-71 §11-21-71. Requirement of withholding tax from wages.
(a) General. -- Every employer maintaining an office or transacting business within this state and making payment of any wage taxable under this article to a resident or nonresident individual shall deduct and withhold from such wages for each payroll period a tax computed in such manner as to result, so far as practicable, in withholding from the employee's wages during each calendar year an amount substantially equivalent to the tax reasonably estimated to be due under this article resulting from the inclusion in the employee's West Virginia adjusted gross income of wages received during such calendar year. The method of determining the amount to be withheld shall be prescribed by the tax commissioner, with due regard to the West Virginia withholding exemption of the employee and any low income exclusion allowed to such employee under section ten of this article and asserted in good faith by the employee. This section shall not apply to payments by the United States for service in the armed forces of the United States: Provided, That the tax commissioner may execute an agreement with the secretary of the treasury, as provided in 5 U.S.C. §5517, for the mandatory withholding of tax under this section on pay to members of the national guard while participating in exercises or performing duty under 32 U.S.C. §502, and on pay to members of the ready reserve while participating in scheduled drills or training periods or serving on active duty for training under 10 U.S.C. §270(a).

(b) Withholding exemptions. -- For purposes of this section:

(1) An employee shall be entitled to the same number of West Virginia withholding exemptions as the number of withholding exemptions to which he or she is entitled for federal income tax withholding purposes. An employer may rely upon the number of federal withholding exemptions claimed by the employee, except where the employee claims a higher number of West Virginia withholding exemptions.

(2) With respect to any taxable year beginning after the thirty-first day of December, one thousand nine hundred eighty-six, the amount of each West Virginia exemption shall be two thousand dollars whether the individual is a resident or nonresident.

(c) Exception for certain nonresidents. -- If the income tax law of another state of the United States or of the District of Columbia results in its residents being allowed a credit under section forty sufficient to offset all taxes required by this article to be withheld from wages of an employee, the tax commissioner may by regulation relieve the employers of such employees from withholding requirements of this article with respect to such employees.

(d) Effective date. -- The provisions of this section, as amended in the year one thousand nine hundred ninety-six, shall apply to all taxable years or portions thereof beginning after the thirtieth day of June, one thousand nine hundred ninety-six.

WVC 11 - 21 - 71 A §11-21-71a. Withholding tax on West Virginia source income of nonresident partners, nonresident S corporation shareholders, and nonresident beneficiaries of estates and trusts.
(a) General rule. -- For the privilege of doing business in this state or deriving rents or royalties from real or tangible personal property located in this state, including, but not limited to, natural resources in place and standing timber, a partnership, S corporation, estate or trust, which is treated as a pass-through entity for federal income tax purposes and which has taxable income for the taxable year derived from or connected with West Virginia sources any portion of which is allocable to a nonresident partner, nonresident shareholder, or nonresident beneficiary, as the case may be, shall pay a withholding tax under this section, except as provided in subsections (c) and (k) of this section.

(b) Amount of withholding tax. --

(1) In general. -- The amount of withholding tax payable by any partnership, S corporation, estate or trust, under subsection (a) of this section, shall be equal to four percent of the effectively connected taxable income of the partnership, S corporation, estate or trust, as the case may be, which may lawfully be taxed by this state and which is allocable to a nonresident partner, nonresident shareholder, or nonresident beneficiary of a trust or estate: Provided, That for taxable years commencing on or after the first day of January, two thousand eight, the amount of withholding tax payable by any partnership, S corporation, estate or trust, under subsection (a) of this section, shall be equal to six and one-half percent of the effectively connected taxable income of the partnership, S corporation, estate or trust, as the case may be, which may lawfully be taxed by this state and which is allocable to a nonresident partner, nonresident shareholder, or nonresident beneficiary of a trust or estate.

(2) Credits against tax. -- When determining the amount of withholding tax due under this section, the pass-through entity may apply any tax credits allowable under this chapter to the pass-through entity which pass through to the nonresident distributees: Provided, That in no event may the application of any credit or credits reduce the tax liability of the distributee under this article to less than zero.

(c) When withholding is not required. -- Withholding shall not be required:

(1) On distribution to a person, other than a corporation, who is exempt from the tax imposed by this article. For purposes of this subdivision, a person is exempt from the tax imposed by this article only if such person is, by reason of such person's purpose or activities, exempt from paying federal income taxes on such person's West Virginia source income. The pass-through entity may rely on the written statement of the person claiming to be exempt from the tax imposed by this article provided the pass-through entity discloses the name and federal taxpayer identification number for all such persons in its return for the taxable year filed under this article or article twenty-four of this chapter; or

(2) On distributions to a corporation which is exempt from the tax imposed by article twenty-four of this chapter. For purposes of this subdivision, a corporation is exempt from the tax imposed by article twenty-four of this chapter only if the corporation, by reason of its purpose or activities is exempt from paying federal income taxes on the corporation's West Virginia source income. The pass-through entity may rely on the written statement of the person claiming to be exempt from the tax imposed by article twenty-four of this chapter provided the pass-through entity discloses the name and federal taxpayer identification number for all such corporations in its return for the taxable year filed under this article or article twenty-four of this chapter; or

(3) On distributions when compliance will cause undue hardship on the pass-through entity: Provided, That no pass-through entity shall be exempt under this subdivision from complying with the withholding requirements of this section unless the Tax Commissioner, in his or her discretion, approves in writing the pass-through entity's written petition for exemption from the withholding requirements of this section based on undue hardship. The Tax Commissioner may prescribe the form and contents of such a petition and specify standards for when a pass-through entity will not be required to comply with the withholding requirements of this section due to undue hardship. Such standards shall take into account (among other relevant factors) the ability of a pass-through entity to comply at reasonable cost with the withholding requirements of this section and the cost to this state of collecting the tax directly from a nonresident distributee who does not voluntarily file a return and pay the amount of tax due under this article with respect to such distributions; or

(4) On distributions by nonpartnership ventures. An unincorporated organization that has elected, under Section 761 of the Internal Revenue Code, to not be treated as a partnership for federal income tax is not treated as a partnership under this article and is not required to withhold under this section. However, such unincorporated organizations shall make and file with the Tax Commissioner a true and accurate return of information under subsection (c), section fifty-eight of this article, under such regulations and in such form and manner as the Tax Commissioner may prescribe, setting forth: (A) The amount of fixed or determinable gains, profits and income; and (B) the name, address and taxpayer identification number of persons receiving fixed or determinable gains, profits or income from the nonpartnership venture.

(d) Payment of withheld tax. --

(1) General rule. -- Each partnership, S corporation, estate or trust, required to withhold tax under this section, shall pay the amount required to be withheld to the Tax Commissioner no later than:

(A) S corporations. -- The fifteenth day of the third month following the close of the taxable year of the S corporation along with the annual information return due under article twenty-four of this chapter, unless paragraph (C) of this subdivision applies.

(B) Partnerships, estates and trusts. -- The fifteenth day of the fourth month following the close of the taxable year of the partnership, estate or trust, with the annual return of the partnership, estate or trust due under this article, unless paragraph (C) of this subdivision applies.

(C) Composite returns. -- The fifteenth day of the fourth month of the taxable year with the composite return filed under section fifty-one-a of this article.

(2) Special rules. --

(A) Where there is extension of time to file return. -- An extension of time for filing the returns referenced in subdivision (1) of this subsection does not extend the time for paying the amount of withholding tax due under this section. In this situation, the pass-through entity shall pay, by the date specified in subdivision (1) of this subsection, at least ninety percent of the withholding tax due for the taxable year, or one hundred percent of the tax paid under this section for the prior taxable year, if such taxable year was a taxable year of twelve months and tax was paid under this section for that taxable year. The remaining portion of the tax due under this section, if any, shall be paid at the time the pass-through entity files the return specified in subdivision (1) of this subsection. If the balance due is paid by the last day of the extension period for filing such return and the amount of tax due with such return is ten percent or less of the tax due under this section for the taxable year, no additions to tax shall be imposed under article ten of this chapter with respect to balance so remitted. If the amount of withholding tax due under this section for the taxable year is less than the estimated withholding taxes paid for the taxable year by the pass-through entity, the excess shall be refunded to the pass-through entity or, at its election, established as a credit against withholding tax due under this section for the then current taxable year.

(B) Deposit in trust for Tax Commissioner. -- The Tax Commissioner may, if the commissioner believes such action is necessary for the protection of trust fund moneys due this state, require any pass-through entity to pay over to the Tax Commissioner the tax deducted and withheld under this section, at any earlier time or times.

(e) Effectively connected taxable income. -- For purposes of this section, the term "effectively connected taxable income" means the taxable income or portion thereof of a partnership, S corporation, estate or trust, as the case may be, which is derived from or attributable to West Virginia sources as determined under section thirty-two of this article and such regulations as the Tax Commissioner may prescribe, whether such amount is actually distributed or is deemed to have been distributed for federal income tax purposes.

(f) Treatment of nonresident partners, S corporation shareholders or beneficiaries of a trust or estate. --

(1) Allowance of credit. -- Each nonresident partner, nonresident shareholder, or nonresident beneficiary shall be allowed a credit for such partner's or shareholder's or beneficiary's share of the tax withheld by the partnership, S corporation, estate or trust under this section: Provided, That when the distribution is to a corporation taxable under article twenty-four of this chapter, the credit allowed by this section shall be applied against the distributee corporation's liability for tax under article twenty-four of this chapter.

(2) Credit treated as distributed to partner, shareholder or beneficiary. -- Except as provided in regulations, a nonresident partner's share, a nonresident shareholder's share, or a nonresident beneficiary's share of any withholding tax paid by the partnership, S corporation, estate or trust under this section shall be treated as distributed to such partner by such partnership, or to such shareholder by such S corporation, or to such beneficiary by such estate or trust on the earlier of:

(A) The day on which such tax was paid to the Tax Commissioner by the partnership, S corporation, estate or trust; or

(B) The last day of the taxable year for which such tax was paid by the partnership, S corporation, estate or trust.

(g) Regulations. -- The Tax Commissioner shall prescribe such regulations as may be necessary to carry out the purposes of this section.

(h) Information statement. --

(1) Every person required to deduct and withhold tax under this section shall furnish to each nonresident partner, or nonresident shareholder, or nonresident beneficiary, as the case may be, a written statement, as prescribed by the Tax Commissioner, showing the amount of West Virginia effectively connected taxable income, whether distributed or not distributed for federal income tax purposes by such partnership, S corporation, estate or trust, to such nonresident partner, or nonresident shareholder, or nonresident beneficiary, the amount deducted and withheld as tax under this section; and such other information as the Tax Commissioner may require.

(2) A copy of the information statements required by this subsection must be filed with the West Virginia return filed under this article (or article twenty-four of this chapter in the case of S corporations) by the pass-through entity for its taxable year to which the distribution relates. This information statement must be furnished to each nonresident distributee on or before the due date of the pass-through entity's return under this article or article twenty-four of this chapter for the taxable year, including extensions of time for filing such return, or such later date as may be allowed by the Tax Commissioner.

(i) Liability for withheld tax. -- Every person required to deduct and withhold tax under this section is hereby made liable for the payment of the tax due under this section for taxable years (of such persons) beginning after the thirty-first day of December, one thousand nine hundred ninety-one, except as otherwise provided in this section. The amount of tax required to be withheld and paid over to the Tax Commissioner shall be considered the tax of the partnership, estate or trust, as the case may be, for purposes of articles nine and ten of this chapter. Any amount of tax withheld under this section shall be held in trust for the Tax Commissioner. No partner, S corporation shareholder, or beneficiary of a trust or estate, shall have a right of action against the partnership, S corporation, estate or trust, in respect to any moneys withheld from such person's distributive share and paid over to the Tax Commissioner in compliance with or in intended compliance with this section.

(j) Failure to withhold. -- If any partnership, S corporation, estate or trust fails to deduct and withhold tax as required by this section and thereafter the tax against which such tax may be credited is paid, the tax so required to be deducted and withheld under this section shall not be collected from the partnership, S corporation, estate or trust, as the case may be, but the partnership, S corporation, estate or trust shall not be relieved from liability for any penalties or interest on additions to tax otherwise applicable in respect of such failure to withhold.

(k) Distributee agreements. --

(1) The Tax Commissioner shall permit a nonresident distributee to file with a pass-through entity, on a form prescribed by the Tax Commissioner, the agreement of such nonresident distributee: (A) To timely file returns and make timely payment of all taxes imposed by this article or article twenty-four of this chapter in the case of a C corporation, on the distributee with respect to the effectively connected taxable income of the pass-through entity; and (B) to be subject to personal jurisdiction in this state for purposes of the collection of any unpaid income tax under this article (or article twenty-four of this chapter in the case of a C corporation), together with related interest, penalties, additional amounts and additions to tax, owed by the nonresident distributee.

(2) A nonresident distributee electing to execute an agreement under this subsection must file a complete and properly executed agreement with each pass-through entity for which this election is made, on or before the last day of the first taxable year of the pass-through entity in respect of which the agreement applies. The pass-through entity shall file a copy of that agreement with the Tax Commissioner as provided in subdivision (5) of this subsection.

(3) After an agreement is filed with the pass-through entity, that agreement may be revoked by a distributee only in accordance with regulations promulgated by the Tax Commissioner.

(4) Upon receipt of such an agreement properly executed by the nonresident distributee, the pass-through entity shall not withhold tax under this section for the taxable year of the pass-through entity in which the agreement is received by the pass-through entity and for any taxable year subsequent thereto until either the nonresident distributee notifies the pass-through entity, in writing, to begin withholding tax under this section or the Tax Commissioner directs the pass-through entity, in writing, to begin withholding tax under this section because of the distributee's continuing failure to comply with the terms of such agreement.

(5) The pass-through entity shall file with the Tax Commissioner a copy of all distributee agreements received by the pass-through entity during any taxable year with this annual information return filed under this article, or article twenty-four of this chapter in the case of S corporations. If the pass-through entity fails to timely file with the Tax Commissioner a copy of an agreement executed by a distributee and furnished to the pass-through entity in accordance with this section, then the pass-through entity shall remit to the Tax Commissioner an amount equal to the amount that should have been withheld under this section from the nonresident distributee. The pass-through entity may recover payment made pursuant to the preceding sentence from the distributee on whose behalf the payment was made.

(l) Definitions. -- For purposes of this section, the following terms mean:

(1) Corporation. -- The term "corporation" includes associations, joint stock companies and other entities which are taxed as corporations for federal income tax purposes.

(A) C corporation. -- The term "C corporation" means a corporation which is not an S corporation for federal income tax purposes.

(B) S corporation. -- The term "S corporation" means a corporation for which a valid election under Section 1362(a) of the Internal Revenue Code is in effect for the taxable period. All other corporations are C corporations.

(2) Distributee. -- The term "distributee" includes any partner of a partnership, any shareholder of an S corporation and any beneficiary of an estate or trust that is treated as a pass-through entity for federal income tax purposes for the taxable year of the entity, with respect to all or a portion of its income.

(3) Internal Revenue Code. -- The term "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, through the date specified in section nine of this article.

(4) Nonresident distributee. -- The term "nonresident distributee" includes any individual who is treated as a nonresident of this state under this article; and any partnership, estate, trust or corporation whose commercial domicile is located outside this state.

(5) Partner. -- The term "partner" includes a member of a partnership as that term is defined in this section.

(6) Partnership. -- The term "partnership" includes a syndicate, group, pool, joint venture, or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on and which is not a trust or estate, a corporation or a sole proprietorship. "Partnership" does not include an unincorporated organization which, under Section 761 of the Internal Revenue Code, is not treated as a partnership for the taxable year for federal income tax purposes.

(7) Taxable period. -- The term "taxable period" means, in the case of an S corporation, any taxable year or portion of a taxable year during which a corporation is an S corporation.

(8) Taxable year of the pass-through entity. -- The term "taxable year of the pass-through entity" means the taxable year of the pass-through entity for federal income tax purposes. If a pass-through entity does not have a taxable year for federal tax purposes, its tax year for purposes of this article shall be the calendar year.

(m) Effective date. -- The provisions of this section shall first apply to taxable years of pass-through entities beginning after the thirty-first day of December, one thousand nine hundred ninety-one.

WVC 11 - 21 - 71 B §11-21-71b. Withholding tax on West Virginia source income of

nonresidents.
(a) (1) In this section the following words have the meanings indicated.

(2) (A) Except as provided in paragraph (B) of this subdivision, "net proceeds" means the total sales price paid to the transferor less:

(i) Debts of the transferor secured by a mortgage or other lien on the property being transferred that are being paid upon the sale or exchange of the property; and

(ii) Other expenses of the transferor arising out of the sale or exchange of the property and disclosed on a settlement statement prepared in connection with the sale or exchange of the property, not including adjustments in favor of the transferee.

(B) "Net proceeds" does not include adjustments in favor of the transferor that are disclosed on a settlement statement prepared in connection with the sale or exchange of the property.

(3) "Nonresident entity" means an entity that:

(A) Is not formed under the laws of the state; and

(B) Is not qualified by or registered with the Tax Commissioner to do business in the state.

(4) "Resident entity" means an entity that:

(A) Is formed under the laws of the state; or

(B) Is formed under the laws of another state and is qualified by or registered with the Tax Commissioner to do business in the state.

(5) "Total payment" means the net proceeds of a sale actually paid to a transferor, including the fair market value of any property transferred to the transferor.

(6) "Transfer pursuant to a deed in lieu of foreclosure" includes:

(A) A transfer by the owner of the property to:

(i) With respect to a deed in lieu of foreclosure of a mortgage, the mortgagee, the assignee of the mortgage, or any designee or nominee of the mortgagee or assignee of the mortgage;

(ii) With respect to a deed in lieu of foreclosure of a deed of trust, the holder of the debt or other obligation secured by the deed of trust or any designee, nominee, or assignee of the holder of the debt or other obligation secured by the deed of trust;

(iii) With respect to a deed in lieu of foreclosure of any other lien instrument, the holder of the debt or other obligation secured by the lien instrument or any designee, nominee, or assignee of the holder of the debt secured by the lien instrument; and

(B) A transfer by any of the persons described in subparagraph (i) of this paragraph to a subsequent purchaser for value.

(7) "Transfer pursuant to a foreclosure of a mortgage, deed of trust, or other lien instrument" includes:

(A) With respect to the foreclosure of a mortgage:

(i) A transfer by the mortgagee, the assignee of the mortgage, the attorney named in the mortgage, or the attorney or trustee conducting a foreclosure sale pursuant to the mortgage to:

(I) The mortgagee or the assignee of the mortgage;

(II) Any designee, nominee, or assignee of the mortgagee or assignee of the mortgage; or

(III) Any purchaser, substituted purchaser, or assignee of any purchaser or substituted purchaser of the foreclosed property; and

(ii) A transfer by any of the persons described in subparagraph (i) of this paragraph to a subsequent purchaser for value;

(B) With respect to the foreclosure of a deed of trust:

(i) A transfer by the trustees, successor trustees, substituted trustees under the deed of trust, or trustees conducting a foreclosure sale pursuant to the deed of trust to:

(I) The holder of the debt or other obligation secured by the deed of trust;

(II) Any designee, nominee, or assignee of the holder of the debt secured by the deed of trust; or

(III) Any purchaser, substituted purchaser, or assignee of any purchaser or substituted purchaser of the foreclosed property; and

(ii) A transfer by any of the persons described in subparagraph (i) of this paragraph to a subsequent purchaser for value; and

(C) With respect to the foreclosure of any other lien instrument:

(i) A transfer by the party authorized to make the sale to:

(I) The holder of the debt or other obligation secured by the lien instrument;

(II) Any designee, nominee, or assignee of the holder of the debt secured by the lien instrument; or

(III) Any purchaser, substituted purchaser, or assignee of any purchaser or substituted purchaser of the foreclosed property; and

(ii) A transfer by any of the persons described in subparagraph (i) of this paragraph to a subsequent purchaser for value.

(b) (1) For every deed or other instrument of writing that effects a change of ownership on the land books of a county assessor and for which an amount is required to be withheld under subsection (c) of this section, the total payment shall be described on the form prescribed by the Tax Commissioner.

(2) The form required under subdivision (1) of this subsection shall be signed under oath by:

(i) The transferor of the property;

(ii) An agent of the transferor; or

(iii) The real estate reporting person, as defined under Section 6045 of the Internal Revenue Code.

(c) (1) Except as otherwise provided in this section, in a sale or exchange of real property and associated tangible personal property owned by a nonresident or nonresident entity occurring on during taxable years beginning on or after the first day of January, two thousand eight, the real estate reporting person, as defined under Section 6045 of the Internal Revenue Code, shall withhold an amount equal to two and one-half percent of the total payment to a nonresident or nonresident entity. In lieu thereof, the real estate reporting person may withhold an amount equal to six and one-half percent of the estimated capital gain derived from the sale or exchange. The amounts withheld shall be paid to the Tax Commissioner by the real estate reporting person within thirty days of the date the amounts were withheld.

(2) The Tax Commissioner may propose alternatives to the percentages of payments or capital gains set forth in this section that may, based upon experience and application of this section, more accurately represent the value of capital gains subject to taxation in this state and, upon enactment of any such rules, those alternatives to the percentages shall supersede the percentages set forth in this subsection.

(d) Subsection (c) of this section does not apply when:

(1) A certification under penalties of perjury that the transferor is a resident of the state or is a resident entity is provided by each transferor in:

(A) The recitals or the acknowledgment of the deed or other instrument of writing transferring the property to the transferee; or

(B) An affidavit signed by the transferor or by an agent of the transferor that accompanies and is recorded with the deed or other instrument of writing transferring the property;

(2) The transferor presents to the real estate reporting person, as defined under Section 6045 of the Internal Revenue Code, a certificate issued by the Tax Commissioner stating that:

(A) No tax is due from that transferor in connection with that sale or exchange of property;

(B) A reduced amount of tax is due from that transferor in connection with that sale or exchange of property and stating the reduced amount that should be collected by the real estate reporting person, as defined under Section 6045 of the Internal Revenue Code, before recordation or filing; or

(C) The transferor has provided adequate security to cover the amount required to be withheld under subsection (c) of this section;

(3) The property transfer is:

(A) A transfer pursuant to a foreclosure of a mortgage, deed of trust, or other lien instrument; or

(B) A transfer pursuant to a deed in lieu of foreclosure;

(4) The property is transferred by the United States, the state, or a unit or political subdivision of the state;

(5) A certification under penalties of perjury that the property being transferred is the transferor's principal residence is provided by each transferor in:

(A) The recitals or the acknowledgment of the deed or other instrument of writing transferring the property to the transferee; or

(B) An affidavit signed by the transferor or by an agent of the transferor that accompanies and is recorded with the deed or other instrument of writing transferring the property; or

(6) The property is transferred pursuant to a deed or other instrument of writing that includes a statement of consideration required in section six, article twenty-two of this code indicating that the consideration payable is zero.

(e) Except as provided in this section, the amounts described in subsection (c) of this section shall be collected by the real estate reporting person before the deed or other instrument of writing is presented for recordation or filing.

(f) (1) Amounts collected under subsection (c) of this section and paid over to the Tax Commissioner under subsection (e) of this section shall be deemed to have been paid to the Tax Commissioner on behalf of the transferor from whom the amounts were withheld.

(2) The transferor shall be credited with having paid the amounts for the taxable year in which the transaction that is the subject of the tax occurred against any tax owed by the transferor to the State of West Virginia on gains resulting from the transaction and is entitled to a refund from the Tax Commissioner of any amount in excess of the amount owed, except as provided in subsection (i) of this section.

(g) The real estate reporting person is subject to the requirements and penalties prescribed for the failure to pay the amount of a tax prescribed by article ten of this chapter for the failure to pay to the Tax Commissioner amounts withheld pursuant to provisions of this section.

(h) This section does not:

(1) Impose any tax on a transferor or affect any liability of the transferor for any tax; or

(2) Prohibit the Tax Commissioner from collecting any taxes due from a transferor in any other manner authorized by law.

(i) (1) The Tax Commissioner shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement and administer this section.

(2) The Tax Commissioner shall establish procedures for the issuance of the certificate referred to in subdivision (2), subsection (d) of this section.

(3) The Tax Commissioner shall establish a procedure by which a transferor may apply for an early refund of the tax collected under this section if the transferor establishes that no tax will be owed or less tax than collected will be owed.

(4) If the amount withheld and paid to the Tax Commissioner under this section equals or exceeds the amount of tax owed by the transferor, the transferor may, at his or her discretion, not file the return required by this article: Provided, That failure to file a return is deemed to be a final decision to not claim a refund for an overpayment of the tax imposed by this article, and no claim for refund shall be granted and no refund paid with relation to tax withheld pursuant to this section for which no return was filed by the taxpayer.

WVC 11-21-72 §11-21-72. Information statement for employee.

Every employer required to deduct and withhold tax under this article from the wages of an employee, or who would have been required so to deduct and withhold tax if the employee had claimed no more than one withholding exemption, shall furnish to each such employee in respect of the wages paid by such employer to such employee during the calendar year on or before the fifteenth day of February of the succeeding year, or, if his employment is terminated before the close of such calendar year, on the date on which the last payment of the wages is made, a written statement as prescribed by the tax commissioner showing the amount of wages paid by the employer to the employee, the amount deducted and withheld as tax, and such other information as the tax commissioner shall prescribe.

WVC 11-21-73 §11-21-73. Credit for tax withheld.

Wages upon which tax is required to be withheld shall be taxable under this article as if no withholding were required, but any amount of tax actually deducted and withheld under this article in any calendar year shall be deemed to have been paid to the tax commissioner on behalf of the person from whom withheld, and such person shall be credited with having paid that amount of tax for the taxable year beginning in such calendar year. For a taxable year of less than twelve months, the credit shall be made under regulations of the tax commissioner.

WVC 11 - 21 - 74 §11-21-74. Filing of employer's withholding return and payment of withheld taxes; annual reconciliation; e-filing required for certain tax preparers and employer.
(a) General. -- Every employer required to deduct and withhold tax under this article shall, for each calendar quarter, on or before the last day of the month following the close of the calendar quarter, file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld. Where the average quarterly amount deducted and withheld by any employer is less than $150 and the aggregate for the calendar year can reasonably be expected to be less than $600, the Tax Commissioner may by regulation permit an employer to file an annual return and pay over to the Tax Commissioner the taxes deducted and withheld on or before the last day of the month following the close of the calendar year. The Tax Commissioner may, by nonemergency legislative rules promulgated pursuant to article three, chapter twenty-nine-a of this code, change the minimum amounts established by this subsection. The Tax Commissioner may, if he or she determines necessary for the protection of the revenues, require any employer to make the return and pay to him or her the tax deducted and withheld at any time or from time to time. Notwithstanding the provisions of this subsection, on or after January 1, 2009, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld, in accordance with the procedures established by the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue Code.

(b) Monthly returns and payments of withheld tax on and after January 1, 2001. -- Notwithstanding the provisions of subsection (a) of this section, on and after January 1, 2001, every employer required to deduct and withhold tax under this article shall, for each of the first eleven months of the calendar year, on or before the twentieth day of the succeeding month and for the last calendar month of the year, on or before the last day of the succeeding month, file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld, if the withheld taxes aggregate $250 or more for the month, except any employer with respect to whom the Tax Commissioner may have by regulation provided otherwise in accordance with the provisions of subsection (a) of this section. Notwithstanding the provisions of this subsection, on and after January 1, 2009, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld. The due dates for returns and payments shall be established by the Tax Commissioner to match as closely as practicable the due dates in effect for federal income tax purposes, in accordance with the procedures established by the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue Code.

(c) Annual returns and payments of withheld tax of certain domestic and household employees. -- Employers of domestic and household employees whose withholdings of federal income tax are annually paid and reported by the employer pursuant to the filing of Schedule H of federal form 1040, 1040A, 1040NR, 1040NR-EZ, 1040SS or 1041 may, on or before January 31 next succeeding the end of the calendar year for which withholdings are deducted and withheld, file an annual withholding return with the Tax Commissioner and annually remit to the Tax Commissioner West Virginia personal income taxes deducted and withheld for the employees. The Tax Commissioner may promulgate legislative or other rules pursuant to article three, chapter twenty-nine-a of this code for implementation of this subsection. Notwithstanding the provisions of this subsection, on or after January 1, 2009, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld. The due dates for annual returns and payments shall be established by the Tax Commissioner to match as closely as practicable the due dates in effect for federal income tax purposes in accordance with the procedures established by the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue Code.

(d) Deposit in trust for Tax Commissioner. -- Whenever any employer fails to collect, truthfully account for or pay over the tax, or to make returns of the tax as required in this section, the Tax Commissioner may serve a notice requiring the employer to collect the taxes which become collectible after service of the notice, to deposit the taxes in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner and to keep the amount of the tax in the separate account until payment over to the Tax Commissioner. The notice shall remain in effect until a notice of cancellation is served by the Tax Commissioner.

(e) Accelerated payment. -- (1) Notwithstanding the provisions of subsections (a) and (b) of this section, for calendar years beginning after December 31, 1990, every employer required to deduct and withhold tax whose average payment per calendar month for the preceding calendar year under subsection (b) of this section exceeded $100,000 shall remit the tax attributable to the first fifteen days of June each year on or before June 23: Provided, That on and after June 1, 2007, the provisions of this subsection that require the accelerated payment on or before June 23 of the tax imposed by this article are no longer effective and any tax due and owing shall be payable in accordance with subsection (a) of this section.

(2) For purposes of complying with subdivision (1) of this subsection, the employer shall remit an amount equal to the withholding tax due under this article on employee compensation subject to withholding tax payable or paid to employees for the first fifteen days of June or, at the employer's election, the employer may remit an amount equal to fifty percent of the employer's liability for withholding tax under this article on compensation payable or paid to employees for the preceding month of May.

(3) For an employer which has not been in business for a full calendar year, the total amount the employer was required to deduct and withhold under subsection (b) of this section for 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 $100,000, the employer shall remit the tax attributable to the first fifteen days of June each year on or before June 23, as provided in subdivision (2) of this subsection.

(4) When an employer required to make an advanced payment of withholding tax under subdivision (1) of this subsection makes out its return for the month of June, which is due on July 20, that employer may claim as a credit against its liability under this article for tax on employee compensation paid or payable for employee services rendered during the month of June the amount of the advanced payment of tax made under subdivision (1) of this subsection.

(f) The amendments to this section enacted in the year 2006 are effective for tax years beginning on or after January 1, 2006.

(g) An annual reconciliation of West Virginia personal income tax withheld shall be submitted by the employer on or before February 28 following the close of the calendar year, together with Tax Division copies of all withholding tax statements for that preceding calendar year. The reconciliation shall be accompanied by a list of the amounts of income withheld for each employee in such form as the Tax Commissioner prescribes and shall be filed separately from the employer's monthly or quarterly return.

(h) Any employer required to file a withholding return for two hundred fifty or more employees shall file its return using electronic filing as defined in section fifty-four of this article: Provided, That for any tax period beginning on or after January 1, 2011, any employer with fifty or more employees shall file its return using electronic filing as defined in section fifty-four of this article. An employer that is required to file electronically but does not do so is subject to a penalty in the amount of $25 per employee for whom the return was not filed electronically, unless the employer shows that the failure is due to a technical inability to comply.

WVC 11-21-75 §11-21-75. Employer's liability for withheld taxes.

Every employer required to deduct and withhold tax under this article is hereby made liable for such tax. To the extent not inconsistent with the provisions of this article, all of the provisions of article ten of this chapter and section ninety-two of this article twenty-one, relating to assessment and collection of taxes, and to penalties, additions to tax and interest in respect thereto, shall apply to every employer required to withhold tax under this article. For such purposes any amount required to be withheld and paid over to the tax commissioner shall be considered the tax of the employer. Any amount of tax actually deducted and withheld under this article shall be held to be a special fund in trust for the tax commissioner. No employee shall have any right of action against his employer in respect to any moneys deducted and withheld from his wages and paid over to the tax commissioner in compliance or in intended compliance with this article.

WVC 11-21-76 §11-21-76. Employer's failure to withhold.

If an employer fails to deduct and withhold tax as required, and thereafter the tax against which such tax may be credited is paid, the tax so required to be deducted and withheld shall not be collected from the employer, but the employer shall not be relieved from liability for any penalties, interest, or additions to the tax otherwise applicable in respect of such failure to deduct and withhold.

WVC 11 - 21 - 77

PART I. GENERAL.

§11-21-77. Extension of withholding to certain lottery winnings.

                                            (a) Lottery winnings subject to withholding. -- Proceeds of more than $5,000 from any lottery prize awarded by the West Virginia State Lottery Commission is subject to withholding. The commission in making any payment of a lottery prize subject to withholding shall deduct and withhold from the payment a tax in an amount equal to six and one-half percent of the payment.

                                            (b) Statement by recipient. -- Every person who is to receive payment of winnings which are subject to withholding shall furnish the person making the payment a statement made under the penalties of perjury, containing the name, address and taxpayer identification number of the person receiving the payment and each person entitled to any portion of the payment.

                                            (c) Coordination with other sections. -- For the purposes of determining liability for payment of taxes and filing of returns, payments of winnings which are subject to withholding shall be treated as if they were wages paid by an employer to an employee.

                                            (d) Backup withholding. -- Beginning July 1, 2012, every person who is required to file Internal Revenue Service form W-2G, and who is subject to backup withholding under federal law, is subject to West Virginia backup withholding. The payor in making any payment of a gambling prize subject to backup withholding shall deduct and withhold from the payment a tax in an amount equal to six and one-half percent of the payment. WVC 11-21-78 §11-21-78.

Reserved for future use.

WVC 11-21-79 §11-21-79.

Reserved for future use.

WVC 11-21-80 §11-21-80.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-81 §11-21-81.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-82 §11-21-82.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-83 §11-21-83.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-84 §11-21-84.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-85 §11-21-85.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-86 §11-21-86.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-87 §11-21-87.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-88 §11-21-88.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-89 §11-21-89.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-90 §11-21-90.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-91 §11-21-91.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

WVC 11-21-92 §11-21-92.

Repealed.

Acts, 1984 Reg. Sess., Ch. 170.

WVC 11 - 21 - 93 §11-21-93. Personal income tax reserve fund.
(a) Of the revenue collected under this article the state treasurer shall credit the amount as the tax commissioner may determine to be necessary for refunds to which taxpayers shall be entitled under this article to the personal income tax reserve fund described in subsection (b) of this section. The state treasurer shall credit all remaining interest, penalties and taxes collected under this article to the general revenue fund of the state treasury.

(b) The fund established by the prior enactment of this section is hereby reestablished as an account in the state treasury designated the "personal income tax reserve fund". The fund shall be administered by the secretary of administration and expended only for the purpose specified in subsection (c) of this section. Notwithstanding any provision of section two, article two, chapter twelve of this code to the contrary, the moneys of the fund are not part of the general revenue fund of the state treasury.

(c) The moneys of the personal income tax reserve fund must be expended to make timely refunds of moneys to which taxpayers may be entitled under this article as certified by the tax commissioner. Amounts in the fund which are found from time to time to exceed funds needed for the purposes set forth in this section may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.

WVC 11-21-94 §11-21-94. Effective date; severability.

(a) Effective date. -- The provisions of this article shall take effect immediately. Such provisions shall apply to all taxable years ending on or after the thirty-first day of December, one thousand nine hundred sixty-one, and to the entirety of each such year, including that part which has elapsed prior to the effective date of this article. Such provisions shall also apply to taxable years beginning prior to and ending in the year one thousand nine hundred sixty-one, but the tax imposed for any such year shall be one twelfth of a tax for the full year multiplied by the number of months elapsed from the first day of January, one thousand nine hundred sixty-one, until the end of the taxable year.

(b) Severability. -- If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby.

WVC 11-21-94a §11-21-94a. Effective date.

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-eight, and apply to all taxable years ending 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.

WVC 11-21-95 §11-21-95. General procedure and administration.

Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter shall apply to the tax imposed by this article twenty-one with like effect as if said act were applicable only to the tax imposed by this article twenty-one and were set forth in extenso in this article twenty-one.

WVC 11 - 21 - 96 §11-21-96. Dedication of personal income tax proceeds.

     (a) There is hereby dedicated an annual amount of $45 million from annual collections of the tax imposed by this article for payment of the unfunded liability of the current Workers' Compensation Fund. No portion of this amount may be pledged for payment of debt service on revenue bonds issued pursuant to article two-d, chapter twenty-three of this code.

     (b) Notwithstanding any other provision of this code to the contrary, beginning in January of 2006, $45 million from collections of the tax imposed by this article shall be deposited each calendar year to the credit of the old fund created in article two-c, chapter twenty-three of this code, in accordance with the following schedule. Each calendar month, except for July, August and September each year, $5 million shall be transferred, on or before the twenty-eighth day of the month, to the Workers' Compensation Debt Reduction Fund created in article two-d, chapter twenty-three of this code.

     (c) The transfers required by subsection (b) of this section shall continue to be made until the Governor certifies to the Legislature that an independent actuarial study determined that the unfunded liability of the old fund, as defined in chapter twenty- three of this code, has been paid or provided for in its entirety. Thereafter, an annual amount of $35 million from annual collections of the tax imposed by this article and which were previously dedicated by this section for payment of the unfunded liability of the Workers Compensation Fund shall be dedicated for payment of the unfunded liability of the West Virginia Retiree Health Benefit Trust Fund and to provide funding for the Post-July 1, 2010, Employee Trust Fund created by section five-b, article sixteen, chapter five of this code. The $35 million transferred pursuant to this subsection shall be transferred in accordance with the following:

     (1) The annual amount of $30 million shall be transferred into the West Virginia Retiree Health Benefit Trust Fund, by transferring $5 million each month for the following months of each year: October, November, December, January, February and March, until the Governor certifies to the Legislature that an independent actuarial study has determined that the unfunded liability of West Virginia Retiree Health Benefit Trust Fund, as created in section two, article sixteen-d, chapter five of this code, has been provided for in its entirety or July 1, 2037, whichever date is later. No transfer into the West Virginia Retiree Health Benefit Trust Fund pursuant to this subdivision shall be made thereafter; and

     (2) An annual amount of $5 million shall be transferred into the Post-July 1, 2010, Employee Trust Fund created by section five- b, article sixteen, chapter five of this code in April of each year. WVC 11 - 21 - 10 A §11-21-10a. Credit for nonfamily adoption.
     A one time credit against the tax imposed by the provisions of this article shall be allowed as follows:

     Nonfamily adoptions. -- For nonfamily adoptions, the credit is equal to $4,000 which may be taken in the year of the adoption of each nonfamily child, whose age at adoption is under eighteen years. This credit may, at the option of the taxpayer, be taken over a period of three years.

     For the purpose of this section and credit "nonfamily adoptions" means adoptions of a child or children by a taxpayer or taxpayers who are not the father, mother, or stepparent of the child. WVC 11 - 21 - 12 D §11-21-12d. Additional modification reducing federal adjusted gross income.
     In addition to amounts authorized to be subtracted from federal adjusted gross income pursuant to subsection (c), section twelve of this article, any person who retires under an employer- provided defined benefit pension plan that terminates prior to or after the retirement of that person and the pension plan is covered by a guarantor whose maximum benefit guarantee is less than the maximum benefit to which the retiree was entitled had the plan not terminated may subtract annually from his or her federal adjusted income a sum equal to the difference in the amount of the maximum annual pension benefit the person would have received for such tax year had the plan not terminated and the maximum annual pension benefit actually received from the guarantor under a benefit guarantee plan: Provided, That if the Tax Commissioner determines that this adjustment reduces the revenues of the state by $2 million or more in any one year, then the Tax Commissioner shall reduce the percentage of the reduction to a level at which the commissioner believes will reduce the cost of the adjustment to $2 million for the next year. This tax adjustment is effective for taxable years beginning on and after January 1, 2008: Provided, however, That for the taxable year 2007, the tax adjustment shall be effective and shall apply retroactively: Provided further, That the adjustment terminates for the tax years on and after January 1, 2015. This modification is available regardless of the type of return form filed.

Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.


Recent legislation affecting the Code

Citation Year/Session Short Title
§11 - 24 - 3 - (Amended Code)
SENATE BILL - 327
PASSED - Regular Session

SB327 ENR  (Uploaded - 03/25/2014)
Updating terms in Corporation Net Income Tax Act
§11 - 13 R- 13 - (New Code)
SENATE BILL - 328
PASSED - Regular Session

SB328 ENR  (Uploaded - 03/25/2014)
Terminating Strategic Research and Development Tax Credit
§11 - 15 - 16 - (Amended Code)
§11 - 21 - 74 - (Amended Code)
SENATE BILL - 331
PASSED - Regular Session

SB331 ENR  (Uploaded - 03/25/2014)
Requiring certain accelerated payment of consumers sales and service and use tax and employee withholding taxes
§11 - 10 - 5 N - (Amended Code)
SENATE BILL - 402
PASSED - Regular Session

SB402 ENR  (Uploaded - 03/25/2014)
Permitting Tax Commissioner recover financial institution charges and fees for all forms of payment
§11 - 11 - 7 - (Amended Code)
SENATE BILL - 414
PASSED - Regular Session

SB414 SUB2 ENR  (Uploaded - 03/25/2014)
Redirecting nonprobate appraisement filings
§11 - 6 K- 4 - (Amended Code)
§11 - 6 K- 5 - (Amended Code)
SENATE BILL - 416
PASSED - Regular Session

SB416 SUB1 ENR  (Uploaded - 03/25/2014)
Relating to tentative appraisals of natural resources property
§11 - 27 - 38 - (Amended Code)
SENATE BILL - 456
PASSED - Regular Session

SB456 ENR  (Uploaded - 03/25/2014)
Extending expiration date for health care provider tax on eligible acute care hospitals
§11 - 13 A- 5 B - (New Code)
SENATE BILL - 461
PASSED - Regular Session

SB461 SUB1 ENR  (Uploaded - 03/25/2014)
Creating Future Fund
§11 - 5 - 12 - (Amended Code)
SENATE BILL - 574
PASSED - Regular Session

SB574 SUB1 ENR  (Uploaded - 03/25/2014)
Clarifying mobile home permanently attached to real estate is not personal property under certain conditions
§11 - 3 - 25 - (Amended Code)
SENATE BILL - 601
PASSED - Regular Session

SB601 ENR  (Uploaded - 03/25/2014)
Relating to property assessment appeals
§11 - 14 C- 9 - (Amended Code)
HOUSE BILL - 4154
PASSED - Regular Session

hb4154 ENR  (Uploaded - 03/25/2014)
Fixing a technical error relating to the motor fuel excise tax
§11 - 21 - 9 - (Amended Code)
HOUSE BILL - 4159
PASSED - Regular Session

hb4159 ENR  (Uploaded - 03/25/2014)
Updating the meaning of federal adjusted gross income and certain other terms
§11 - 8 - 16 A - (Repealed Code)
HOUSE BILL - 4228
PASSED - Regular Session

HB4228 ENR SUB  (Uploaded - 03/25/2014)
Repealing or removing certain portions of education-related statutes that have expired
§11 - 8 - 17 - (Amended Code)
HOUSE BILL - 4302
PASSED - Regular Session

hb4302 ENR  (Uploaded - 03/25/2014)
Relating to elections for public school purposes
§11 - 13BB- 3 - (Amended Code)
§11 - 13BB- 14 - (Amended Code)
HOUSE BILL - 4449
PASSED - Regular Session

HB4449 SUB ENR  (Uploaded - 03/25/2014)
Including proximity detection systems and cameras used on continuous mining machines and underground haulage equipment for tax credit purposes
§11 - 16 - 3 - (Amended Code)
§11 - 16 - 17 A - (New Code)
§11 - 16 - 20 - (Amended Code)
§11 - 16 - 21 - (Amended Code)
HOUSE BILL - 4549
PASSED - Regular Session

hb4549 ENR  (Uploaded - 03/25/2014)
Clarifying the regulation of nonintoxicating beer brewers and distributors, agreements, networks, products, brands and extensions of a line of brands
§11 - 1 C- 5 B - (Repealed Code)
§11 - 3 - 1 - (Amended Code)
SENATE BILL - 1009
PASSED - 1st Special Session

SB1009 ENR  (Uploaded - 03/26/2014)
Relating to computation of local share for public school support purposes
Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.
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