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Introduced Version Senate Bill 345 History

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SB345 intr
Senate Bill No. 345

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

By Request of the Executive)

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[Introduced January 25, 2010; referred to the Committee on Finance.]

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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 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 person engaged with the Governor's Tax Modernization Project 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. 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 utilities and telecommunications industries, taxation of utilities and telecommunications industries and the economics of utilities and telecommunications industries; 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" means the electronic transmission, conveyance or routing of voice, data, audio, video or any other information or signals to a point or between or among points.
(A) Telecommunications service includes the transmission, conveyance or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether the service is referred to as voice over Internet protocol services or is classified by the Federal Communications Commission as enhanced or value added. The term telecommunications service includes, but is not limited to: Voice mail service, vertical service, value-added nonvoice data service, residential telecommunications service, business telecommunications service, pay telephone service, paging service, mobile wireless service, intrastate telecommunications service, interstate telecommunications service, international telecommunications service, fixed wireless service, directory assistance, detailed telecommunications billing service, conference-bridging service, coin-operated telephone service, 900 service, 800 service, emergency telephone systems, and enhanced emergency telephone systems.
(B) Telecommunications service does not include:
(i) Advertising, including, but not limited to, directory advertising;
(ii) Ancillary services;
(iii) Billing and collection services provided to third parties;
(iv) Data processing and information services that allow data to be generated, acquired, stored, processed or retrieved and delivered by an electronic transmission to a purchaser where the purchaser's primary purpose for the underlying transaction is the processed data or information;
(v) Digital products delivered electronically, including, but not limited to, software, music, video, reading materials or ring tones;
(vi) Installation or maintenance of wiring or equipment on a customer's premises;
(vii) Internet access service;
(viii) Radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance and routing of services by the programming service provider. Radio and television audio and video programming services shall include, but not be limited to, cable service, as defined in 47 U.S.C. §522(6): Provided, That, any telecommunications services, which are provided, or offered by, or available from a person, company or entity that also provides cable service shall not be treated as cable services for purposes of this section, and shall be treated as telecommunications services in accordance with the provisions of this section. Radio and television audio and video programming services also include, audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 CFR 20.3; or
(ix) Tangible personal property.
(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 shall be subject to a penalty, collectible as provided in article ten of this chapter, the amount of which shall be the greater of $1,000 or ten percent of the gross income of the person failing to comply with the requirements of this section, as computed by the Tax Commissioner, for the tax period for which the disclosure was mandated by the Tax Commissioner. 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 and subject to the requirements of section five-b, article ten of this chapter, to enforce the disclosure requirements of this section.
(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) 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 person conducting the study. It is unlawful for the Tax Commissioner or any person conducting the study to disclose to any person not conducting the study any financial information or other data disclosed under this section.
(3) In addition to any applicable penalties in section five-d, article ten of this chapter, any person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than one year, or both fined and confined.
(4) 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.


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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