ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 701
(Senators Plymale and Jenkins, original sponsors)
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[Passed March 13, 2004; in effect ninety days from passage.]
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AN ACT to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §8-13C-1, §8-13C-2,
§8-13C-3, §8-13C-4, §8-13C-5, §8-13C-5a, §8-13C-6, §8-13C-7,
§8-13C-8, §8-13C-9, §8-13C-10, §8-13C-11, §8-13C-12 and §8-
13C-13; to amend and reenact §11-9-2, §11-9-3, §11-9-4,
§11-9-5, §11-9-6, §11-9-8 and §11-9-10 of said code; and to
amend and reenact §11-10-3 of said code, all relating to
authorizing a qualifying municipality to impose municipal
occupational tax, an alternative municipal sales and service
tax and use tax and a pension relief municipal sales and
service tax and use tax; establishing responsibilities of tax
commissioner relating to the tax; clarifying application of
other state tax laws; creating qualifying municipal sales and service tax and use tax fund; providing that tax rate applies
to purchases from printed catalogs; limiting use of certain
proceeds of the taxes to application toward the unfunded
liability of certain pensions; citing instances where
qualifying municipalities lose certain taxing authority;
limiting increase in pension benefits pending imposition of
certain taxes; addressing conflicts and unconstitutionality;
establishing prerequisites to imposition of certain taxes;
requiring a study by the chief technology officer on the cost
of implementing municipal taxes; imposing criminal penalties
for certain violations relating to municipal tax; and applying
tax procedure and administration act to municipal taxes.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §8-13C-1, §8-13C-2,
§8-13C-3, §8-13C-4, §8-13C-5, §8-13C-5a, §8-13C-6, §8-13C-7,
§8-13C-8, §8-13C-9, §8-13C-10, §8-13C-11, §8-13C-12 and §8-13C-13;
that §11-9-2, §11-9-3, §11-9-4, §11-9-5, §11-9-6, §11-9-8 and
§11-9-10 of said code be amended and reenacted; and that §11-10-3
of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 13C. MUNICIPAL TAX IN LIEU OF BUSINESS AND OCCUPATION TAX;
AND MUNICIPAL TAXES APPLICABLE TO PENSION FUNDS.
§8-13C-1. Findings.
The Legislature finds that:
(a) Imposing additional taxes creates an extra burden on the
citizens of the state;
(b) Imposing additional taxes can be detrimental to the
economy of the state;
(c) Imposing additional taxes is only proper under certain
circumstances;
(d) For many municipalities with severe unfunded liabilities
of the police and fire pension funds, all available sources of
local revenue have been exhausted. Property taxes are at the
maximum allowed by the state constitution and local business and
occupation taxes and utility taxes are at the maximum rates allowed
by state law. Other fees have reached the economic maximum and are
causing relocation of business outside the municipal boundaries;
(e) For many municipalities with severe unfunded police and
fire pension fund liabilities, revenue from existing sources has
become stagnant over the past few years with no expectation of
significant future growth;
(f) For many municipalities with severe unfunded police and
fire pension fund liabilities, payments required under state law to
fund fire and police pension funds are now close to equaling the
city payrolls for police and fire protection and will rise to
exceed those payrolls within a ten-year period;
(g) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to
fund fire and police pension funds now constitute a large
percentage of those municipalities' total budget and will rise to
an even larger percentage of the available revenues in the next ten
years. Payment and benefit levels are dictated to the
municipalities by state law;
(h) As the required pension payments rise, many of the
municipalities with severe unfunded police and fire pension fund
liabilities will find it impossible to maintain at minimum levels
necessary and proper city services including, but not limited to,
police and fire protection, street maintenance and repair and
sanitary services;
(i) For some of the municipalities with severe unfunded
liabilities of the police and fire pension funds, the combination
of the steeply rising pension obligations and the stagnant revenue
sources raise the real possibility of municipal bankruptcy in the
near and predictable future. If this happens, pensioners would
either not receive the full benefits which they have been promised
or pressure would be placed on the state to fund these programs;
(j) For a municipality that has the most severe unfunded
liability in its pension funds, paying off the unfunded liability
in a timely manner would cause tremendous financial hardship and
the loss of many services that would otherwise be provided to the
municipality's citizens;
(k) Only for a municipality that has the most severe unfunded
liability in its pension funds would the imposition of the pension
relief municipal occupational tax, the pension relief municipal
sales and service tax, the pension relief municipal use tax or any
combination of those taxes be an appropriate method of addressing
the unfunded liability; and
(l) Only for a municipality that does not impose or ceases to
impose a business and occupation or privilege tax would the
imposition of an alternative municipal sales and service tax and an
alternative municipal use tax be appropriate.
§8-13C-2. Definitions.
For the purposes of this article:
(a) "Alternative municipal sales and service tax" means the
tax authorized to be imposed by subsection (b), section four of
this article only if a municipality does not impose or ceases to
impose the business and occupation or privilege tax authorized in
section five, article thirteen of this chapter;
(b) "Alternative municipal use tax" means the tax authorized
to be imposed by subsection (b), section five of this article only
if a municipality does not impose or ceases to impose the business
and occupation or privilege tax authorized in section five, article
thirteen of this chapter;
(c) "Qualifying municipality" means any municipality, as
defined in section two, article one of this chapter:
(1) In which the weighted average of the percentages to which
its policemen's and firemen's pension and relief funds are fully
funded is three percent or less on the date of adoption of the
ordinance imposing the tax; and
(2) That has satisfied the requirements set forth in section
eleven of this article;
(d) "Pension relief municipal occupational tax" means the tax
authorized to be imposed by section three of this article and for
which the use of the proceeds of the tax are restricted by section
nine of this article;
(e) "Pension relief municipal sales and service tax" means the
tax authorized to be imposed by subsection (a), section four of
this article and for which the use of the proceeds of the tax are
restricted by section nine of this article;
(f) "Pension relief municipal use tax" means the tax
authorized to be imposed by subsection (a), section five of this
article and for which the use of the proceeds of the tax are
restricted by section nine of this article; and
(g) "Taxable employee" means any individual:
(1) Who holds employment with an employer with a place of
business located within the qualifying municipality electing to
impose the municipal payroll tax pursuant to this article; and
(2) Whose salaries, wages, commissions and other earned income
that would be included in federal adjusted gross income for the year is more than ten thousand dollars per year.
§8-13C-3. Pension relief municipal occupational tax.
(a) Effective on and after the first day of July, two thousand
five, each qualifying municipality, as defined in section two of
this article, has the plenary power and authority to impose, by
ordinance, a pension relief municipal occupational tax on taxable
employees. Any pension relief municipal occupational tax imposed
pursuant to this section shall meet the following requirements:
(1) The tax shall be imposed at a rate of one percent or less;
(2) The tax shall be imposed at a uniform rate; and
(3) The tax rate shall be applied only to salaries, wages,
commissions and other earned income of taxable employees that would
be included in federal adjusted gross income for the year. The tax
rate may not be applied to other forms of income including, but not
limited to, intangible income and net profit from a business.
(b) Each employer with a taxable employee, during each pay
period, shall withhold from the taxable employee's salary the
amount of the tax as computed by applying the appropriate tax rate
to the taxable employee's salary during that pay period and remit
the withholdings to the appropriate municipal taxing authority.
§8-13C-4. Municipal sales and service taxes.
(a) Effective on and after the first day of July, two thousand
five, each qualifying municipality, as defined in section two of
this article, has the plenary power and authority to impose, by ordinance, a pension relief municipal sales and service tax at a
rate not to exceed one percent, subject to the provisions of this
article.
(b) Effective on and after the first day of July, two thousand
five, notwithstanding subsection (a) of this section, and in
addition thereto in the case of a qualifying municipality, any
municipality that does not impose, or ceases to impose, the
business and occupation or privilege tax authorized by section
five, article thirteen of this chapter has the plenary power and
authority to impose, by ordinance, an alternative municipal sales
and service tax at a rate not to exceed one percent, subject to the
provisions of this article.
(c) Any municipal sales and service tax imposed under the
authority granted by this section is subject to the following:
(1) The base of a municipal sales and service tax imposed
pursuant to this section shall be identical to the base of the
consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the municipality, subject to the
following:
(A) Except for the exemption provided in section nine-f,
article fifteen, chapter eleven of this code, all exemptions and
exceptions from consumers sales and service tax apply to a
municipal sales and service tax imposed pursuant to this section; and
(B) Sales of gasoline and special fuel are not subject to a
municipal sales and service tax imposed pursuant to this section;
(2) Any municipal sales and service tax imposed pursuant to
this section applies solely to tangible personal property, custom
software and services that are sourced to the municipality. The
sourcing rules set forth in article fifteen-b, chapter eleven of
this code, including any amendments thereto, apply to municipal
sales and use taxes levied pursuant to this article;
(3) Any municipality that imposes a municipal sales and
service tax pursuant to this section or changes the rate of a
municipal sales and service tax imposed pursuant to this section
shall notify the tax commissioner pursuant to section six of this
article;
(4) Any municipality that imposes a municipal sales and
service tax pursuant to this section may not administer or collect
the tax, but shall use the services of the tax commissioner to
administer, enforce and collect the tax;
(5) Any municipal sales and service tax imposed pursuant to
this section shall be imposed in addition to the consumers sales
and service tax imposed pursuant to article fifteen, chapter eleven
of this code on sales made and services rendered within the
boundaries of the municipality and, except as exempted or excepted,
all sales made and services rendered within the boundaries of the municipality shall remain subject to the tax levied by that
article; and
(6) Any municipal sales and service tax imposed pursuant to
this section shall be imposed in addition to any tax imposed
pursuant to section one, article eighteen, chapter seven of this
code, sections six and seven, article thirteen of this chapter and
section twelve, article thirty-eight of this chapter.
§8-13C-5. Municipal use tax.
(a) Effective on and after the first day of July, two thousand
five, each qualifying municipality, as defined in section two of
this article, that imposes a pension relief municipal sales and
service tax pursuant to this article shall impose, by ordinance, a
pension relief municipal use tax at the same rate that is set for
the pension relief municipal sales and service tax.
(b) Effective on and after the first day of July, two thousand
five, each municipality that imposes an alternative municipal sales
and service tax pursuant to this article shall impose, by
ordinance, an alternative municipal use tax at the same rate that
is set for the alternative municipal sales and service tax.
(c) The base of a municipal use tax imposed pursuant to this
section shall be identical to the base of the use tax imposed
pursuant to article fifteen-a, chapter eleven of this code on the
use of tangible personal property, custom software and taxable
services within the boundaries of the municipality, subject to the following:
(1) Except for the exemption provided in section nine-f,
article fifteen, chapter eleven of this code, all exemptions and
exceptions from the use tax apply to a municipal use tax imposed
pursuant to this section; and
(2) Uses of gasoline and special fuel are not subject to a
municipal use tax imposed pursuant to this section when the use is
subject to the tax imposed by article fourteen-c, chapter eleven of
this code.
(d) Any municipality that imposes a municipal use tax pursuant
to this section or changes the rate of a municipal use tax imposed
pursuant to this section shall notify the tax commissioner pursuant
to section six of this article.
(e) Any municipality that imposes a municipal use tax pursuant
to this section may not administer or collect the tax, but shall
use the services of the tax commissioner to administer, enforce and
collect the taxes.
(f) Any municipal use tax imposed pursuant to this section
shall be imposed in addition to the use tax imposed pursuant to
article fifteen-a, chapter eleven of this code on the use of
tangible personal property, custom software or taxable services
within the boundaries of the municipality and, except as exempted
or excepted, all use of tangible personal property, custom software
or taxable services within the boundaries of the municipality shall remain subject to the tax levied by said article.
(g) Any municipal use tax imposed pursuant to this section
shall be imposed in addition to any tax imposed pursuant to section
one, article eighteen, chapter seven of this code, sections six and
seven, article thirteen of this chapter and section twelve, article
thirty-eight of this chapter.
§8-13C-5a. Credit for sales tax paid to another municipality.
(a)
Credit against municipal use tax. -- A person is entitled
to a credit against a use tax imposed by a municipality pursuant to
section five of this article on the use of a particular item of
tangible personal property, custom software or service equal to the
amount, if any, of sales tax lawfully paid to another municipality
for the acquisition of that property or service:
Provided, That the
amount of credit allowed may not exceed the amount of use tax
imposed on the use of the property or service in the municipality
of use.
(b)
Definitions. -- For purposes of this section:
(1) "Municipality" means a municipality, as defined in section
two, article one of this chapter, or a comparable unit of local
government in another state;
(2) "Sales tax" includes a sales tax or compensating use tax
lawfully imposed on the use of tangible personal property, custom
software or a service by the municipality or county, as
appropriate, in which the sale or use occurred; and
(3) "State" includes the fifty states of the United States and
the District of Columbia but does not include any of the several
territories organized by Congress.
(c) No credit is allowed under this section for payment of any
sales or use taxes imposed by this state or any other state.
§8-13C-6. Notification to tax commissioner; responsibilities of
tax commissioner; application of state tax law.
(a) Any municipality that imposes a municipal sales and
service tax and a municipal use tax pursuant to this article or
changes the rate of the taxes shall notify the tax commissioner of
the imposition of the taxes or the change in the rate of the taxes
within thirty days of enacting the ordinance imposing the taxes or
changing the rate of the taxes. A municipal sales and service tax
and a municipal use tax imposed pursuant to this article or a
change in the rate of the taxes is not effective until at least
ninety days after the ordinance imposing the taxes is enacted.
(b) The tax commissioner is responsible for collecting,
enforcing and administering any municipal sales and service tax and
any municipal use tax imposed pursuant to this article in the same
manner as the state sales and service tax imposed pursuant to
article fifteen, chapter eleven of this code and the state use tax
imposed pursuant to article fifteen-a of said chapter.
Additionally, the tax commissioner may charge a fee not to exceed
the lesser of the cost of the service provided or one percent of the proceeds from the municipal sales and service tax.
(c) The state consumers sales and service tax law, set forth
in article fifteen, chapter eleven of this code, and the amendments
to that article and the rules of the tax commissioner relating to
the laws shall apply to a municipal sales and service tax imposed
pursuant to this article to the extent the rules and laws are
applicable.
(d) The state use tax law, set forth in article fifteen-a,
chapter eleven of this code, and the amendments to that article and
the rules of the tax commissioner relating to the laws shall apply
to a municipal use tax imposed pursuant to this article to the
extent the rules and laws are applicable.
(e) Any term used in this article or in an ordinance adopted
pursuant to this article that is defined in articles fifteen,
fifteen-a and fifteen-b, chapter eleven of this code, as amended,
shall have the same meaning when used in this article or in an
ordinance adopted pursuant to this article, unless the context in
which the term is used clearly requires a different result.
(f) Any amendments to articles nine, ten, fifteen, fifteen-a
and fifteen-b, chapter eleven of this code shall automatically
apply to a sales or use tax imposed pursuant to this article, to
the extent applicable.
(g) Each and every provision of the "West Virginia Tax
Procedure and Administration Act" set forth in article ten, chapter eleven of this code applies to the taxes imposed pursuant to this
article, except as otherwise expressly provided in this article,
with like effect as if that act were applicable only to the taxes
imposed by this article and were set forth in extenso in this
article.
(h) Each and every provision of the "West Virginia Tax Crimes
and Penalties Act" set forth in article nine, chapter eleven of
this code applies to the taxes imposed pursuant to this article
with like effect as if that act were applicable only to the taxes
imposed pursuant to this article and were set forth in extenso in
this article.
§8-13C-7. Municipal sales and service tax and use tax fund;
deposit and remittance of collections.
(a) There is created a special revenue account in the state
treasury designated the "municipal sales and service tax and use
tax fund" which is an interest-bearing account and shall be
invested in the manner described in section nine-c, article six,
chapter twelve of this code with the interest and other return
earned a proper credit to the fund. A separate subaccount within
the fund shall be established for each municipality that imposes a
municipal sales and service tax and use tax pursuant to this
article.
(b) The tax commissioner shall deposit all the proceeds from
a municipal sales and service tax and a municipal use tax collected for each municipality minus any fee for collecting, enforcing and
administering taxes in the appropriate subaccount. All moneys
collected and deposited in the fund shall be remitted at least
quarterly by the state treasurer to the treasurer of the
appropriate municipality.
§8-13C-8. Printed catalogs.
Local tax rate changes made pursuant to sections four and five
of this article apply to purchases from printed catalogs where the
purchaser computed the tax based upon the local tax rate published
in the catalog only on and after the first day of a calendar
quarter after a minimum of one hundred twenty days' notice to the
seller.
§8-13C-9. Restriction on use of certain revenues.
(a) All proceeds from a pension relief municipal occupational
tax, a pension relief municipal sales and service tax and a pension
relief municipal use tax imposed pursuant to this article shall be
used solely for the purpose of reducing the unfunded actuarial
accrued liability of policemen's and firemen's pension and relief
funds of the qualifying municipality imposing the tax. The
proceeds used for this purpose shall be in addition to the minimum
annual contribution required by section twenty, article twenty-two
of this chapter.
(b) A qualifying municipality loses its authority to impose a
pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use
tax pursuant to this article after:
(1) The unfunded actuarial accrued liability of the qualifying
municipality's policemen's and firemen's pension and relief funds
is eliminated; or
(2) Sufficient moneys accrue from the proceeds of the pension
relief municipal occupational tax, the pension relief municipal
sales and service tax, the pension relief municipal use tax or any
combination of these taxes to eliminate the unfunded actuarial
accrued liability of the qualifying municipality's policemen's and
firemen's pension and relief funds.
§8-13C-10. Conflict; partial unconstitutionality.
(a) If a court of competent jurisdiction finds that the
provisions of this article and the provisions of articles fifteen,
fifteen-a and fifteen-b, chapter eleven of this code conflict and
cannot be harmonized, then the provisions of said articles shall
control.
(b) If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this article is for any reason held
to be invalid, unlawful or unconstitutional, that decision does not
affect the validity of the remaining portions of this article or
any part thereof:
Provided, That if this article is held to be
unconstitutional under section thirty-nine, article VI of the
constitution of West Virginia this severability clause shall not apply.
§8-13C-11. Additional requirements for authority to impose certain
taxes.
(a) The authority to impose the pension relief municipal
occupational tax, the pension relief municipal sales and service
tax and the pension relief municipal use tax, all provided in this
article, is not effective until a municipality wishing to impose
the taxes presents to the joint committee on government and finance
a plan to remove the unfunded liabilities of its policemen's and
firemen's pension funds and the necessary changes in West Virginia
law have been enacted to allow for implementation of the municipal
plan.
(b)
Notwithstanding any other provision of this code to the
contrary, no cost-of-living increases or other benefit increases,
and no new benefits, may be granted to or received by any member or
beneficiary of a policemen's and firemen's pension and relief funds
of a municipality during any period that the municipality imposes
a pension relief municipal occupational tax, a pension relief
municipal sales and service tax, the pension relief municipal use
tax
or any combination thereof authorized under this chapter.
§8-13C-12. Limited authority to impose tax.
(a) Notwithstanding any other provision of this code to the
contrary, no county, board, political subdivision or any other
agency or entity other than a municipality may impose an alternative municipal sales and service tax, an alternative
municipal use tax, a pension relief municipal occupational tax, a
pension relief municipal sales and service tax, a pension relief
municipal use tax or any combination of these taxes.
(b) No subsequent amendment to this code shall supersede the
provisions of subsection (a) of this section unless the amendment
specifically states that the provisions of said subsection are
superseded.
§8-13C-13. Study.
The chief technology officer, appointed pursuant to article
one-b, chapter five of this code, shall conduct a study on the cost
for the tax commissioner to implement the taxes that may be imposed
pursuant to this article. The chief technology officer shall
report the findings and recommendations to the joint committee on
government and finance before the first day of December, two
thousand four.
CHAPTER 11. TAXATION.
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article apply to the following
taxes imposed by this chapter: (1) Inheritance and transfer taxes
and estate taxes imposed by article eleven of this chapter; (2)
business registration tax imposed by article twelve of this
chapter; (3) minimum severance tax on coal imposed by article twelve-b of this chapter; (4) corporate license tax imposed by
article twelve-c of this chapter; (5) business and occupation tax
imposed by article thirteen of this chapter; (6) severance tax
imposed by article thirteen-a of this chapter; (7)
telecommunications tax imposed by article thirteen-b of this
chapter; (8) gasoline and special fuels excise tax imposed by
article fourteen of this chapter; (9) motor fuels excise tax
imposed by article fourteen-c of this chapter; (10) motor carrier
road tax imposed by article fourteen-a of this chapter; (11)
interstate fuel tax agreement authorized by article fourteen-b of
this chapter; (12) consumers sales and service tax imposed by
article fifteen of this chapter; (13) use tax imposed by article
fifteen-a of this chapter; (14) tobacco products excise tax imposed
by article seventeen of this chapter; (15) soft drinks tax imposed
by article nineteen of this chapter; (16) personal income tax
imposed by article twenty-one of this chapter; (17) business
franchise tax imposed by article twenty-three of this chapter; (18)
corporation net income tax imposed by article twenty-four of this
chapter; and (19) health care provider tax imposed by article
twenty-seven of this chapter.
(b) The provisions of this article also apply to the West
Virginia tax procedure and administration act in article ten of
this chapter and to any other articles of this chapter when
application is expressly provided for by the Legislature.
(c) The provisions of this article also apply to municipal
sales and use taxes imposed pursuant to article thirteen-c, chapter
eight of this code; the charitable bingo fee imposed by sections
six and six-a, article twenty, chapter forty-seven of this code;
the charitable raffle fee imposed by section seven, article
twenty-one of said chapter; and the charitable raffle boards and
games fees imposed by section three, article twenty-three of said
chapter.
(d) Each and every provision of this article applies to the
articles of this chapter listed in subsections (a), (b) and (c) of
this section, with like effect, as if the provisions of this
article were applicable only to the tax and were set forth in
extenso in this article.
§11-9-3. Definitions.
For the purposes of this article, the term:
(1) "Person" means any individual, firm, partnership, limited
partnership, copartnership, joint venture, association,
corporation, municipal corporation, organization, receiver, estate,
trust, guardian, executor, administrator and any officer, employee
or member of any of the foregoing who, as an officer, employee or
member, is under a duty to perform or is responsible for the
performance or nonperformance of the act in respect of which a
violation occurs under this article.
(2) "Return" or "report" means any return or report required to be filed by any article of this chapter imposing any tax to
which this article applies as specified in section two of this
article or by any other article of this code pursuant to which a
tax or fee is imposed that is collected by the tax commissioner as
specified in section two of this article.
(3) "Tax" or "taxes" means any tax to which this article
applies, as specified in section two of this article, and includes
additions to tax, penalties and interest unless the intention to
give it a more limited meaning is disclosed by the context in which
the term "tax" or "taxes" is used.
(4) "Tax commissioner" or "commissioner" means the tax
commissioner of the state of West Virginia or his or her delegate.
(5) "This chapter" means chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, and
shall include only those articles of chapter eleven of this code
listed in section two of this article.
(6) "Willfully" means the intentional violation of a known
legal duty to perform any act, required to be performed by any
provision of this chapter or article thirteen-c, chapter eight of
this code, in respect of which the violation occurs:
Provided,
That the mere failure to perform any act shall not be a willful
violation under this article. A willful violation of this article
requires that the defendant had knowledge of or notice of a duty to
perform an act and that the defendant, with knowledge of or notice of that duty, intentionally failed to perform the act.
(7) "Evade" means to willfully and fraudulently commit any act
with the intent of depriving the state of payment of any tax which
there is a known legal duty to pay under this chapter.
(8) "Fraud" means any false representation or concealment as
to any material fact made by any person with the knowledge that it
is not true and correct, with the intent that the representation or
concealment be relied upon by the state.
§11-9-4. Failure to pay tax or file return or report.
Any person required by any provision of this chapter or
article thirteen-c, chapter eight of this code to pay any tax, or
to file any return or report, who willfully fails to pay the tax,
or willfully fails to file the return or report, more than thirty
days after the date the tax is required to be paid by law, is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than two thousand
five hundred dollars. Each failure to pay tax, or file a return or
report, more than thirty days after its due date for any tax period
is a separate offense under this section and punishable
accordingly:
Provided, That thirty days prior to instituting
criminal proceedings under this section, the tax commissioner shall
give the person written notice of any failure to pay a tax or to
file a return or report. Notice shall be served on the person by
certified mail or by personal service. The provisions of this section shall not apply to the business franchise registration tax
imposed by article twelve of this chapter.
§11-9-5. Failure to account for and pay over another's tax.
Any person required by any provision of this chapter or
article thirteen-c, chapter eight of this code to collect, or
withhold, account for and pay over any tax, who willfully fails to
truthfully account for and pay over the tax in the manner required
by law, more than thirty days after the date the tax is required to
be accounted for and paid over by law, is guilty of a felony if the
amount of tax not paid over is one thousand dollars or more and,
upon conviction thereof, shall be fined not less than five thousand
dollars nor more than twenty-five thousand dollars or imprisoned in
a correctional facility not less than one nor more than three
years, or, in the discretion of the court, be confined in jail not
more than one year, or both fined and imprisoned; or is guilty of
a misdemeanor, if the amount of tax not paid over is less than one
thousand dollars, and, upon conviction thereof, shall be fined not
less than five hundred dollars nor more than five thousand dollars
or imprisoned in jail not more than six months, or both fined and
imprisoned. Each failure to account for and pay over tax for any
tax period under this section is a separate offense and punishable
accordingly:
Provided, That thirty days prior to instituting a
criminal proceeding under this section, the tax commissioner shall
give the person written notice of the failure to truthfully account for and pay over tax. Notice shall be served on the person by
certified mail or personal service.
§11-9-6. Failure to collect or withhold tax.
Any person required by any provision of this chapter or
article thirteen-c, chapter eight of this code to collect or
withhold any tax, who willfully fails to collect or withhold the
tax in the manner required by law, is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars or imprisoned in jail
not more than six months, or both fined and imprisoned. Each month
or fraction thereof during which the failure continues is a
separate offense under this section and punishable accordingly.
§11-9-8. Willful failure to maintain records or supply
information; misuse of exemption certificate.
If any person: (1) Willfully fails to maintain any records, or
supply any information, in the manner required by this chapter or
article thirteen-c, chapter eight of this code or regulations
therefor promulgated in accordance with law, to compute, assess,
withhold or collect any tax imposed by this chapter; or (2)
presents to any vendor a certificate for the purpose of obtaining
an exemption from the tax imposed by article fifteen or fifteen-a
of this chapter or article thirteen-c, chapter eight of this code
and then knowingly uses the item or service purchased in a manner
that is not exempt from the tax without remitting the tax in the manner required by law, that person is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred
dollars nor more than one thousand dollars or imprisoned in jail
not more than six months, or both fined and imprisoned.
§11-9-10. Attempt to evade tax.
If any person: (1) Knowingly files a false or fraudulent
return, report or other document under any provision of this
chapter or article thirteen-c, chapter eight of this code; or (2)
willfully delivers or discloses to the tax commissioner any list,
return, account, statement, record or other document known by him
or her to be fraudulent or false as to any material matter with the
intent of obtaining or assisting another person in obtaining any
credit, refund, deduction, exemption or reduction in tax not
otherwise permitted by this chapter or article thirteen-c, chapter
eight of this code; or (3) willfully attempts in any other manner
to evade any tax imposed by this chapter or article thirteen-c,
chapter eight of this code or the payment thereof, is guilty of a
felony and, notwithstanding any other provision of the code, upon
conviction thereof, shall be fined not less than one thousand
dollars nor more than ten thousand dollars or imprisoned in a
correctional facility not less than one nor more than three years
or, in the discretion of the court, be confined in jail not more
than one year, or both fined and imprisoned.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-3. Application of this article.
(a) The provisions of this article apply to inheritance and
transfer taxes, estate tax and interstate compromise and
arbitration of inheritance and death taxes, business registration
tax, annual tax on incomes of certain carriers, minimum severance
tax on coal, corporate license tax, business and occupation tax,
severance tax, telecommunications tax, interstate fuel tax,
consumers sales and service tax, use tax, tobacco products excise
tax, soft drinks tax, personal income tax, business franchise tax,
corporation net income tax, gasoline and special fuels excise tax,
motor fuels excise tax, motor carrier road tax, health care
provider tax and tax relief for elderly homeowners and renters
administered by the state tax commissioner. This article shall not
apply to ad valorem taxes on real and personal property or any
other tax not listed in this section, except that in the case of ad
valorem taxes on real and personal property, when any return,
claim, statement or other document is required to be filed, or any
payment is required to be made within a prescribed period or before
a prescribed date, and the applicable law requires delivery to the
office of the sheriff of a county of this state, the methods
prescribed in section five-f of this article for timely filing and
payment to the tax commissioner or state tax department are the
same methods utilized for timely filing and payment with the
sheriff.
(b) The provisions of this article apply to beer barrel tax
levied by article sixteen of this chapter and to wine liter tax
levied by section four, article eight, chapter sixty of this code.
(c) The provisions of this article apply to any other article
of this chapter when the application is expressly provided for by
the Legislature.
(d) The provisions of this article apply to municipal sales
and use taxes imposed under article thirteen-c, chapter eight of
this code and collected by the tax commissioner.