Introduced Version
House Bill 3003 History
OTHER VERSIONS -
Committee Substitute
|
Enrolled Version - Final Version
|
| Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 3003
(By Delegate White)
(By Request of the State Tax Division)
[Introduced March 20, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §16-9D-4a, relating
generally to facilitating and enforcing compliance with the
Tobacco Master Settlement Agreement; and imposing bonding
requirements on certain nonparticipating manufacturers.
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 §16-9D-4a, to read as
follows:
ARTICLE 9D. ENFORCEMENT OF STATUTES IMPLEMENTING TOBACCO MASTER
SETTLEMENT AGREEMENT.
§16-9D-4a. Listing of nonparticipating manufacturers in the West
Virginia Tobacco Directory; bonding requirement for
nonparticipating manufacturers posing an elevated risk for noncompliance.
_____(a) Notwithstanding any other provision of law, if a newly
qualified nonparticipating manufacturer is to be listed in the
directory described in subsection (b), section three of this
article, or if the Attorney General reasonably determines that a
nonparticipating manufacturer who has filed a certification
pursuant to section three of this article poses an elevated risk
for noncompliance with the Master Settlement Agreement, neither the
nonparticipating manufacturer nor any of its brand families may be
included in the directory unless and until the nonparticipating
manufacturer has posted a bond in accordance with this section.
_____(b) The bond shall be posted by corporate surety located
within the United States in an amount equal to the greater of
$25,000 or the amount of escrow the manufacturer, in either its
current or predecessor form, was required to deposit as a result of
its sales in the previous calendar year in West Virginia. The bond
shall be written in favor of the State of West Virginia and shall
be conditioned on the performance by the nonparticipating
manufacturer of all of its duties and obligations under this
article and article nine-d of this chapter during the year in which
the certification is filed and the next succeeding calendar year.
Duplicate originals of the bond shall be provided to the State Tax
Division and the Attorney General.
_____(c) A nonparticipating manufacturer may be considered to pose an elevated risk for noncompliance with this section if:
_____(1) The nonparticipating manufacturer or any affiliate thereof
has underpaid an escrow obligation with respect to any state that
is a signatory to the Master Settlement Agreement at any time
during the calendar year or within the three preceding calendar
years unless:
_____(A) The manufacturer did not make underpayment knowingly or
recklessly and the manufacturer promptly cured the underpayment
within one hundred eighty days' notice of it; or
_____(B) The underpayment or lack of payment is the subject of a
good-faith dispute as documented to the satisfaction of the
Attorney General and the underpayment is cured within one hundred
eighty days of entry of a final order establishing the amount of
the required escrow payment;
_____(2) Any state that is a signatory to the Master Settlement
Agreement has removed the manufacturer or its brands or brand
families or an affiliate or any of the affiliate's brands or brand
families from the directory for noncompliance with the state law at
any time during the calendar year or within the three preceding
calendar years; or
_____(3) Any state that is a signatory to the Master Settlement
Agreement has litigation pending against, or an unsatisfied
judgment against, the manufacturer or any affiliate thereof for
escrow or for penalties, costs, or attorney fees related to noncompliance with state escrow laws.
_____(d) As used in this section, "newly qualified nonparticipating
manufacturer" means a nonparticipating manufacturer that has not
previously been listed in the directory in the three preceding
calendar years. The manufacturer may be required to post a bond in
accordance with this section for the first three years of their
listing, or for a longer time the Attorney General may require, if
the manufacturer has been determined to pose an elevated risk for
noncompliance. Any other nonparticipating manufacturer that has
been determined to pose an elevated risk for noncompliance shall be
required to post a bond in accordance with this section for three
years, and shall be required to post a bond for a further period of
time the Attorney General may require, in accordance with this
section, if the nonparticipating manufacturer still poses an
elevated risk at the end of the three-year period.
_____(e) The posted bond shall be forfeited to the West Virginia
General Revenue Fund in the event that the manufacturer fails to
comply with its Master Settlement Agreement escrow obligations. The
amount of the forfeiture shall be equal to the delinquent escrow
payments due at the time of forfeiture plus any penalties assessed
against the manufacturer based on its failure to fulfill its
responsibilities under this article and article nine-d of this
chapter.
NOTE: The purpose of this bill is to facilitate compliance
with the Tobacco Master Settlement Agreement by requiring
nonparticipating tobacco product manufacturers that are new or that
have an elevated risk of noncompliance with said statute to post a
bond conditioned or their compliance.
§16-9D-4a is new, therefore it has been completely
underscored.