(1) In any year following the first calendar year the project is open to the public, the project fails to attract at least twenty-five percent of its visitors from among persons who are not residents of the state;
(2) In any year following the first year the project is open to the public, the project is not operating and open to the public for at least one hundred days; or
(3) The approved company, as of the beginning of each calendar year, has an outstanding obligation to a Workers' Compensation Fund, as defined in article two-c of chapter twenty-three of this code, an outstanding obligation under the West Virginia Unemployment Compensation Act, or an outstanding obligation under the West Virginia state tax and revenue laws.
(b) In addition to the loss of credit allowed under this article for the calendar year, any approved company or successor eligible company that forfeits the tourism development project tax credit or the tourism development expansion project credit under the provisions of subsection (a) of this section, credit recapture shall apply and the approved company, and successor eligible companies, shall return to the state all previously claimed tourism development project tax credit or tourism development expansion project credit allowed by this article. An amended return shall be filed with the State Tax Commissioner for the prior calendar year, or calendar years, for which credit recapture is required, along with interest, as provided in section seventeen, article ten, chapter eleven of this code: Provided, That the approved company and successor eligible companies who previously claimed the tourism development project tax credit or the tourism development expansion project credit allowed by this article are jointly and severally liable for payment of any recapture tax subsequently imposed under this section.
(c) Within forty-five days after the end of each calendar year during the term of the agreement, the approved company shall supply the development office with all reports and certifications the development office requires demonstrating to the satisfaction of the development office that the approved company is in compliance with applicable provisions of law. Based upon a review of these materials and other documents that are available, the development office shall then certify to the Tax Commissioner that the approved company is in compliance with this section.
(d) The tax credit allowed in this article is transferable, subject to the written consent of the development office, to an eligible successor company that continues to operate the approved project.