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SB345 SUB1 Senate Bill 345 History

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SB345 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 345

(By Senators Tomblin (Mr. President) and Caruth,

By Request of the Executive)

____________

[Originating in the Committee on Finance;

reported February 19, 2010.]

____________


A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-13B-19, relating to requiring a study of the telecommunications tax; authorizing the Tax Commissioner to order the disclosure of certain information; exempting certain information received by the Tax Commissioner from the West Virginia Freedom of Information Act; prohibiting the disclosure of certain information received by the Tax Commissioner; providing for criminal and civil penalties; defining terms; and authorizing the Tax Commissioner to promulgate rules and emergency rules.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §11-13B-19, to read as follows:
ARTICLE 13B. TELECOMMUNICATIONS TAX.
§11-13B-19. Tax Commissioner study of telecommunications tax.
(a) Findings and purpose. -- The Legislature finds that the tax imposed by this article fails to account for modern business models, operational structures, technologies and fundamental economics of the business of telecommunications. The Legislature further finds that the tax imposed under this article should be amended to provide for a reasonable, fair and efficient tax that inures to the benefit and general welfare of West Virginia. Therefore, it is the purpose of this section to require a study of telecommunications services relative to the imposition of a telecommunications tax, to provide the Tax Commissioner with plenary authority to order the disclosure of financial information and other data necessary to undertake the study and to provide for the confidentiality of financial information and other data disclosed as part of the study.
(b) Telecommunications tax study. -- The Tax Commissioner shall study the business of telecommunications service and related businesses and shall file a report with the Governor and the Legislature on or before July 1, 2011. The report shall recommend amendments to the tax imposed under this article or any other tax pertaining to telecommunications service and shall include recommended legislation. The Tax Commissioner in his report shall examine the feasibility and fiscal implications on affected governmental entities or political subdivisions of a single uniform statewide telecommunications service tax or, alternatively, imposition of the sales and use tax on the retail sale of telecommunications services as a replacement for, or in addition to, other taxes and fees on telecommunications service. The Tax Commissioner may include this study as part of the findings and recommendations of the Governor's Tax Modernization Project and may cooperate with persons engaged in the Governor's Tax Modernization Project to further the purposes of this study. Any consultant under contract with the Tax Commissioner who assists in conducting this study is "an agent of this state" for the purposes of section five-d, article ten of this chapter and is subject to the requirements of that section and subsection (e) of this section: Provided, That witnesses, experts, government officials, consultants and industry representatives who provide data, information or statistics to the Tax Commissioner or others engaged in the study mandated by this section shall not be treated as being subject to the confidentiality restrictions of section five-d, article ten of this chapter and shall not be treated as subject to the confidentiality requirements of subsection (e) of this section, solely by reason of having provided information to the study. For purposes of this study, the Tax Commissioner may seek and examine the information, data, records and testimony of: Experts in the fields of law, economics and taxation; representatives of state, county, local and municipal governmental subdivisions of this state and other states of the United States; persons and entities engaged in telecommunications services businesses; persons knowledgeable about the telecommunications industry, taxation of the telecommunications industry and the economics of the telecommunications industry; and any other person or entity that may have information relevant to the study mandated by this section.
(c) Definitions. -- As used in this section:
(1) "Person" means any individual, firm, partnership, limited partnership, company, copartnership, joint venture, association, corporation, organization or entity, whether private or public.
(2) "Telecommunications service" when used in this article shall have the same meaning as that term is defined in the Streamlined Sales and Use Tax Administration Act in article fifteen-b of this chapter.
(d) Disclosure of financial information and other data. --
(1) Notwithstanding any provision of this code to the contrary, the Tax Commissioner may, for the purpose of conducting the study required by this section, order the disclosure of financial information and other data in the possession of any person or entity that may have information relevant to the study mandated by this section, including, but not limited to, government entities and persons or entities engaged in a telecommunications service business in this state or a related business. The disclosures shall be on forms prescribed by the Tax Commissioner and shall be completed and filed pursuant to instructions provided by the Tax Commissioner.
(2) Any person failing to comply with an order of disclosure within ninety days of receipt of the initial written order of disclosure, which order may be in the form of a letter or other written order, or in the form of a subpoena or subpoena duces tecum, shall be subject to a penalty, collectible as provided in article ten of this chapter. The amount of the penalties shall be an initial penalty of $25,000 which shall be imposed upon the passage of the first ninety days subsequent to receipt of such written order of disclosure during which the failure to comply occurs and an additional penalty of $1,000 per day for each day after the first ninety days during which the failure to comply continues. The count of days for purposes of this penalty shall not cease by reason of the completion of the study or by reason of the completion and issuance of the study report, but shall continue in perpetuity until such time as the information which was the subject of the order is disclosed in full to the Tax Commissioner or until the Tax Commissioner issues a written order for cessation of the count of Days. The Tax Commissioner may issue a written order for cessation of the count of days, for purposes of this penalty, no earlier than the date on which the study report mandated by this section has been completed and issued by the Tax Commissioner. In the case of information which has been the subject of a subpoena or subpoena duces tecum, the $25,000 initial penalty and the $1,000 per day penalty imposed by this section shall be in addition to all applicable civil and criminal penalties lawfully imposed for failure to comply with a subpoena or subpoena duces tecum. The Tax Commissioner may waive all or any part of such penalty for good cause shown.
(3) The Tax Commissioner, or his or her designee, may issue subpoenas and subpoenas duces tecum, in the manner prescribed in and subject to the requirements of section five-b, article ten of this chapter, to enforce the disclosure requirements of this section. Failure to comply with any such subpoena or subpoena duces tecum shall be subject to all applicable civil and criminal penalties lawfully imposed for failure to comply with a subpoena or subpoena duces tecum.
(e) Confidentiality. --
(1) Financial information and other data disclosed to the Tax Commissioner under the provisions of this section shall be considered confidential and exempt from article one, chapter twenty-nine-b of this code.
(2) Any information disclosed to the Tax Commissioner pursuant to the requirements of this section shall have all of the confidentiality protections given to a "return" under section five-d of article ten of this Chapter and any disclosure not authorized by that section, or this section, shall be subject to all of the penalties provided for unlawful disclosure of a "return". Notwithstanding any provision of this code to the contrary, the Tax Commissioner may share financial information and other data disclosed under this section with any consultant under contract with the Tax Commissioner to assist in conducting the study. It is unlawful for the Tax Commissioner or any person conducting the study, including any consultant under contract with the Tax Commissioner to assist in conducting the study, to disclose to any person not conducting the study any financial information or other data disclosed under this section. Such disclosure shall be a violation of the tax information confidentiality provisions of section five-d, article ten of this chapter.
(3) Nothing in this section may be construed as prohibiting the publication or release of statistics so classified as to prevent the identification of a particular person or entity.
(f) Rules authorized. -- The Tax Commissioner may promulgate rules, including emergency rules, to implement the provisions of this section. For the purposes of article three, chapter twenty- nine-a of this code, a sufficient emergency exists to justify the promulgation of the emergency rules.
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(NOTE: The purpose of this bill is to mandate that the Tax Commissioner undertake a study of the telecommunications industry for the purpose of making recommendations with respect to amendments to the state telecommunications tax. The bill authorizes the Tax Commissioner to order the disclosure of certain information by persons engaged in the telecommunications service business or a related business and includes confidentiality protections for any information so disclosed.

This section is new; therefore, strike-throughs and underscoring have been omitted.)
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