§11-1-1. Office of Tax Commissioner continued and designated the state Tax Division; appointment, term, oath and bond of commissioner; powers and duties generally; sections of division; assistant Tax Commissioner; authorization of criminal background checks conducted by Tax Commissioner for prospective employees; assistant attorneys general to assist commissioner.

(a) The Office of the Tax Commissioner is continued in all respects as previously constituted in the state government, but is hereby designated as the state Tax Division of the Department of Revenue.

(b) The Tax Commissioner is the chief executive officer of the state Tax Division and shall be appointed by the Governor, by and with the advice and consent of the Senate, to serve at the will and pleasure of the Governor for the term for which the Governor was elected and until a successor has been appointed and has qualified.

(c) The Tax Commissioner, before entering upon the duties of office, shall take the oath or affirmation prescribed by section 5, article IV of the Constitution. The Tax Commissioner shall give bond with good security, to be approved by the Governor, in the penalty of $15,000. The Tax Commissioner shall be repaid his or her actual disbursements for traveling expenses. The Tax Commissioner shall be provided with an office in a state owned or leased building and with furniture, office equipment and any necessary clerical assistance.

(d) The Tax Commissioner has control and supervision of the state Tax Division and is responsible for the work of each of its sections or other subunits. Each section or bureau shall be headed by a director appointed by the Tax Commissioner and who is responsible to the Tax Commissioner for the work of his or her section or bureau. The Tax Commissioner may create any sections or bureaus and employ any necessary staff or employees to administer the state tax laws for which the Tax Commissioner or Tax Division is responsible, within the amount of expenditures appropriated for operation of the Tax Division by the Legislature. The Tax Commissioner has authority to appoint an assistant Tax Commissioner who shall be his or her principal assistant. The powers and duties vested in the Tax Commissioner by this chapter and any other provisions of law may be delegated by the Tax Commissioner to the assistant or other employees, but the Tax Commissioner is responsible for all official acts of his or her delegates.

(e) Background checks.

(1) The commissioner is authorized to conduct a criminal records check through the West Virginia State Police and a national criminal history check through the Federal Bureau of Investigation, and such other police or investigative organization or agency as the Tax Commissioner may designate.

(2) Investigations may be conducted for:

(A) Applicants or prospective applicants for employment with the Tax Division,

(B) Current and preexisting employees of the Tax Division,

(C) Applicants or prospective applicants for contract employment with the Tax Division,

(D) Current and preexisting contractors that work with or for the Tax Division, and

(E) Any other person or entity that may handle, review or possess federal tax information or state tax information.

(3) These investigations may be conducted for the purpose of determining whether an applicant for employment with the Tax Division, or an individual, company or entity, that is being evaluated as a potential contractor with the Tax Division, is suitable for such employment, or for the purpose of determining suitability of an individual to be granted access to federal tax information, that is subject to the disclosure restrictions of 26 U.S.C. § 6103, or for any other lawful purpose.

(4) Background investigations of any individual, corporation, limited liability company, partnership or other entity or organization, or of any officer, owner, representative, agent, employee or principal of any such corporation, limited liability company, partnership or other entity or organization pursuant to this section may include, but not be limited to:

(A) Federal Bureau of Investigation (FBI) fingerprint results;

(B) A check of an individual’s criminal history in all states of the United States;

(C) A check of the criminal history in all states of the United States of a corporation, limited liability company, partnership or other entity or organization, or of any officer, owner, representative, agent, employee or principal of any such corporation, limited liability company, partnership or other entity or organization; and

(D) Investigation of records of local law-enforcement agencies where the individual has lived, worked, or attended school within the preceding five years, or longer, as the Tax Commissioner may determine, to identify:

(i) Any arrests of the individual or of an officer, owner, representative, agent or principal of a corporation, limited liability company, partnership or other entity or organization.

(ii) Any criminal record of a corporation, limited liability company, partnership or other entity or organization, or of any officer, owner, representative, agent, employee or principal of any such corporation, limited liability company, partnership or other entity or organization.

(iii) Misbehavior or trends of misbehavior that may not have been reported to the FBI database, but which provide information regarding character and suitability of an individual to hold a responsible employment position or to receive and handle federal tax information or state tax information.

(iv) The citizenship and residency of an individual.

(v) Validation of an individual’s eligibility to legally work in the United States.

(5) The result of any criminal records or criminal history check shall be sent to the commissioner, and any other state or federal agency having a lawful interest in the results of such an investigation, as designated by the Tax Commissioner.

(f) The Tax Commissioner, if he or she considers the action necessary, may request the Attorney General to appoint assistant attorneys general who shall perform duties as required by the Tax Commissioner. The Attorney General, in pursuance of the request, may select and appoint assistant attorneys general, with the consent of the Tax Commissioner, to serve during the will and pleasure of the Attorney General, and the assistants shall be paid out of any funds made available for that purpose by the Legislature to the state Tax Division.

§11-1-1a. Provision of legal services.

(a) The Tax Commissioner has plenary power and authority to acquire those legal services the commissioner deems necessary to carry out the functions and duties of the state Tax Division or the office of Tax Commissioner, including, but not limited to, representation of the Tax Division or the commissioner in any administrative or judicial proceeding.

(b) The commissioner may acquire legal services from attorneys licensed to practice law who are employed by the commissioner on a salary basis or retained by the commissioner on a reasonable fee basis.

(c) The commissioner may also request the assistance of the Attorney General and be represented in an administrative or judicial proceeding by a deputy or assistant Attorney General acceptable to the commissioner.

§11-1-2. General duties and powers of commissioner; appraisers.

It shall be the duty of the Tax Commissioner to see that the laws concerning the assessment and collection of all taxes and levies, whether of the state or of any county, district or municipal corporation thereof, are faithfully enforced. He shall prepare all proper forms and books for the use and guidance of assessors, and shall perform all such other duties as may be required by law. He shall from time to time visit the several counties and municipal corporations of the state; shall inspect the work of the several assessors, county courts, justices, prosecuting attorneys, clerks of the courts, sheriffs, constables and collecting officers, among whom are included commissioners of school lands, and shall confer with them respecting such work for the future. In such conference, or by writing or otherwise, he may inquire into the proceedings of any such officer, make to him such suggestions respecting the discharge of his duty as may seem proper, and give such information and require such action as will tend to produce full and just assessments throughout the state, and the diligent collection of all taxes and levies, including licenses and inheritance taxes, and of fines.

The Tax Commissioner may, with the approval of the board of public works, appoint competent persons to appraise property values, and may employ experts to examine and report upon the different kinds and classes of property in the state, with a view to ascertaining the true and actual value thereof for assessment purposes, to the end that he may furnish to county assessors, county courts and the state board of public works more accurate information, and more effectively aid and supervise the assessors and the county courts in their work of assessment and valuation of property for purposes of taxation. Any such appraiser, or expert person, so appointed by the Tax Commissioner for the purpose of ascertaining property values, as aforesaid, shall have authority to examine under oath, the owner or owners, of any property subject to taxation in this state, as to any matters touching the value thereof; and he may examine, under oath, any other person as to any pertinent facts or matters within his knowledge, relative to the character and value of any such property. And, for the purposes of this provision, such appraisers and expert examiners shall have authority to administer oaths and to subpoena witnesses. If any person refuse to appear and to testify in response to any subpoena issued by such appraiser or expert examiner, he may apply to any judge of any criminal, intermediate, common pleas or circuit court, or the clerk thereof, either in term time or in vacation, for subpoena, or other proper process, for any such witness; and the judge of the court, or such clerk shall thereupon issue a subpoena, or other proper process, requiring the attendance and testimony of any such person before such appraiser, or examiner and if such person refuse to obey any such order, he shall be guilty of contempt and punished accordingly.

Upon the application of any officer concerned with the assessment or collection of taxes, he shall as to any matter specified by such officer, make like suggestions and give like information. In case of the failure of any assessing or collecting officer in the discharge of any duty, imposed upon him by law, the said Tax Commissioner shall, after due notice to any such assessor or collecting officer, proceed to enforce such penalty as may be provided by law, including, in any proper case, the removal of such officer, and to that end he is authorized to appear before any court or tribunal having jurisdiction. He may cause the violation of any law respecting the assessment or collection of taxes to be prosecuted. He may also be heard before any court, council or tribunal, in any proceeding in which an abatement of taxes is sought.

§11-1-2a. Refund of taxes erroneously collected.

(1) On and after the effective date of this section, any taxpayer claiming to be aggrieved through being required to pay any tax into the treasury of this state, may, within five years from the date of the filing of the return in respect of which the tax was imposed or within four years from the date the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within four years from the time the tax was paid, and not after, file with the official or department through which the tax was paid, a petition in writing to have refunded to him any such tax, or any part thereof, the payment whereof is claimed by him to have been required unlawfully; and if, on such petition, and the proofs filed in support thereof, the official collecting the same shall be of the opinion that the payment of the tax collected, or any part thereof was improperly required, he shall refund the same to the taxpayer by the issuance of his or its requisition on the treasury upon which the Auditor shall issue his warrant as hereinafter provided; if the official collecting the same shall be in doubt as to whether or not such taxes were unlawfully paid, or if he be of the opinion that the payment of the tax collected, or any part thereof, was lawful, and the taxpayer within thirty days after notice of such opinion is not satisfied with the ruling of such official, then such tax official may on his own initiative, and shall, upon written notice so to do from the taxpayer given within said thirty-day period, promptly institute against said taxpayer, in a court of competent jurisdiction, a declaratory judgment proceeding to ascertain whether any such tax, or part thereof, has been unlawfully collected; if it be determined in such proceeding that any such tax, or part thereof was unlawfully collected, then such official shall promptly refund the same to the taxpayer by the issuance of his or its requisition on the treasury; and the Auditor shall issue his warrant on the treasurer for any refund requisitioned under this section payable to the taxpayer entitled to the refund, and the treasurer shall pay such warrant out of the fund into which the amount so refunded was originally paid: Provided, That no refund shall be made at any time on any claim involving the assessed valuation or appraisement of the property which was fixed at the time the tax was originally paid: Provided further, That such official shall be under no duty to institute any such declaratory judgment proceeding unless it shall appear that the taxpayer giving the notice as herein provided is acting in good faith and that there is a substantial question as to the lawfulness of the collection of such tax.

(2) With respect to any tax imposed for any period ending prior to the effective date of this section, the time within which any taxpayer claiming to be aggrieved, through being required to pay any tax into the treasury of this state, may file with the official or department through which the tax was paid the petition provided in subsection (1) shall be three years from the date of such payment, and not after.

(3) The provisions of this section shall take effect on July 1, 1967.

§11-1-2b. Housing index requirements.

(a) For purposes of this section only annually, on or before January 1, the Tax Commissioner shall create a single dwelling residential housing index which shall contain the cost of all single dwelling residential housing in the state. The index shall list the average and median cost of single dwelling residential housing by county and by square footage, if available, commencing with the most expensive to the least expensive.

(b) For purposes of this section only, the Tax Commissioner shall also, annually, on or before January 1, establish:

(1) A single dwelling residential housing index multiplier;

(2) The average and median cost of single dwelling residential housing in the state;

(3) The multiplier needed to equal the housing cost in the least expensive county to the most expensive county;

(4) Whether the average and median cost of single dwelling residential housing in a county is above or below the average and median cost for the entire state; and

(5) A table indicating:

(A) The average and median cost of single dwelling residential housing in the state; and

(B) The multiplier for each county, comparing the statewide average and median cost of single dwelling residential housing with a multiplier calculated in relation to the average value.

(c) For purposes of this section only, the Tax Commissioner shall annually, on or before December 31 of each year, provide the single dwelling residential housing index and multiplier to the Joint Committee on Government and Finance and also make it available to the public.

§11-1-3. Aiding board of public works, Auditor and treasurer.

The Tax Commissioner shall attend meetings of the board of public works when it is considering matters of assessment or revenue, when requested by said board or the Governor to so attend, and he shall give such assistance to the said board as it or the Governor may direct, in making any assessment to be made by it. In case of appeal to any court from any assessment made by the said board, the Tax Commissioner shall appear before any court and protect the interest of the state and of any county, district or municipal corporation which may be interested. He shall, upon the request of the Auditor or treasurer, assist such officers in any matters relating to the revenues of the state.

§11-1-4. Biennial report of commissioner; fiscal officers to furnish information.

The Tax Commissioner shall make a report in writing to the Governor biennially, on or before October 1, next preceding the regular session of the Legislature, in which he shall show his official transactions during the period not covered by any preceding report; shall give information respecting the operation of the tax laws throughout the state; and shall recommend such changes in the laws concerning the assessment and collection of taxes, and kindred subjects, as he may think ought to be made, and shall report upon any special matter which may be referred to him by the Governor, Auditor or board of public works; his report shall be printed, communicated to the Legislature and distributed as in the case of other like reports. The Tax Commissioner may require from any county, district, municipal or other officer in this state, on forms prescribed by the Tax Commissioner, such annual or other reports as shall enable said Tax Commissioner to ascertain the assessed valuation and equalize valuations of all property listed for taxation throughout the state, the amount of taxes assessed, collected and returned delinquent and such other matters as the Tax Commissioner may from time to time require; any officer or person failing to furnish such information or reports when requested to do so by the Tax Commissioner shall be guilty of a misdemeanor, and, upon conviction thereof, fined not less than $50 nor more than $100, and may be confined in jail not less than ten nor more than thirty days.

§11-1-4a. Powers of Tax Commissioner as to tax and revenue statistics.

In addition to the reports, information, and recommendations required under section four of this article, the Tax Commissioner is authorized and empowered to collect, tabulate, and classify, and make public from time to time in such manner as he may deem proper, detailed statistics relating to the revenues collected by the state.

Such statistics may be prepared and made public in a manner so as to provide accurate and useful information to government and commerce and, insofar as practicable, shall, with respect to each state revenue law, and for the state as a whole, and from within each county and municipality thereof, show the gross revenue yield, the total amount of business income reported from which such revenue is derived, the total number of taxpayers, the number of taxpayers within any statutory classification, and the gross revenue yield, together with the total amount of business income reported from any such statutory classification of taxpayers.

The Tax Commissioner may also make public such group statistics for similar or related units of business and industry within any statutory classification of taxpayers: Provided, however, That in carrying out the provisions of this section, the Tax Commissioner shall not make public the tax return, or any part thereof, of any individual, firm, or corporation, nor disclose in any manner statistics or information concerning the personal affairs of any individual or the business of any single firm or corporation.

§11-1-5. Misconduct or negligence of officers.

The Tax Commissioner shall communicate to the circuit court and to the prosecuting attorney of the county any instance of misconduct or neglect of official duty on the part of any assessor, justice, prosecuting attorney, clerk of a court, sheriff or constable of such county, and any evidence thereof of which he may be cognizant; and the court shall cause the same to be investigated and, if the charges are true, proper charges shall be filed, and on conviction such assessor, justice, prosecuting attorney, clerk of a court, sheriff or constable shall forfeit not less than $100 nor more than $500, and shall be removed from office.

§11-1-6. Forms and instructions for assessors.

The Tax Commissioner shall prepare and forward to the assessors such printed forms for the personal property books, and the land books, and such lists of taxable subjects to be furnished by the assessors to persons chargeable with taxes, as will procure a perfect assessment of all the persons and property, both real and personal, in this state subject to taxation, and shall have full power to alter or change any and all forms and books from time to time, so as to procure a just and equal assessment of all taxable property: Provided, however, That county assessors may, with the approval of the Tax Commissioner, use such printed forms as may be necessary in the use of mechanical devices designed to facilitate the work of the assessor: Provided further, That the county court is hereby authorized to purchase and pay out of the county treasury for such printed forms for use by the assessor. The Tax Commissioner shall also, by letter or printed circular, give such instructions to the assessors respecting their duties as may seem to him judicious; and if any assessor fail to obey such instructions, so far as they are not contrary to law, he shall forfeit not less than $100 nor more than $500, and, upon being convicted, shall be removed from office.

§11-1-7. Assistance to commissioner by prosecuting attorney.

In every case in which the State Tax Commissioner may appear the prosecuting attorney of the county in which the case is pending shall give his assistance, without additional compensation.

§11-1-8.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§11-1A-1. Tax Commissioner to appraise property to ascertain value; relating reappraisal to specified base year; powers and duties of Tax Commissioner regarding statewide reappraisals.

(a) In conducting the reappraisals of property mandated by the West Virginia Constitution and required by this article, the Tax Commissioner shall appraise all property so as to ascertain the value thereof for assessment purposes, relating such reappraisal to a specified base year in a manner which is uniform for all classes of property and all counties.

(b) It shall be the duty of the Tax Commissioner to see that the laws concerning the periodic statewide appraisal of property are faithfully enforced. He shall prepare all proper forms and books for the use and guidance of appraisers and assessors, and shall perform all such other duties as may be required by law. He shall from time to time visit the several counties and shall inspect the work of the appraisers and the several assessors and shall confer with them respecting such work for the future. In such conference, or by writing or otherwise, he may inquire into the proceedings of any such officer, make to him such suggestions respecting the discharge of his duty as may seem proper, and give such information and require such action as will cause all property subject to ad valorem property taxation to be appraised at its market value.

(c) The Tax Commissioner may appoint competent persons to appraise property values, and may employ experts to examine and report upon the different kinds and classes of property in the state, with a view to ascertaining the value thereof for appraisal and assessment purposes, to the end that he may furnish to county assessors, county commissions and the state board of public works more accurate information, and more effectively aid and supervise the assessors and the county commissions in their work of assessment and valuation of property for purposes of taxation.

(d) Upon the application of any officer concerned with the assessment or collection of taxes, the Tax Commissioner shall, as to any matter specified by such officer, make like suggestions and give like information. In case of the failure of any appraiser or assessing officer in the discharge of any duty imposed upon him by law, the said commissioner shall, after due notice to any such assessor or collecting officer, proceed to enforce such penalty as may be provided by law, including, in any proper case, the removal of such officer, and to that end the commissioner is authorized to appear before any court or tribunal having jurisdiction. In any proceeding to enforce a penalty, if a hearing for an assessor or collecting officer is not otherwise provided by law, then such assessor or collecting officer shall be afforded a hearing by the Tax Commissioner in accord with the provisions of article five, chapter twenty-nine-a of this code. The commissioner may cause the violation of any law respecting the appraisal of property subject to ad valorem property taxation to be prosecuted. He may also be heard before any court, council or tribunal, in any proceeding in which an abatement of taxes is sought. The commissioner shall, inter alia, have the power to accept bids, award contracts, requisition funds appropriated for his expenditure, and require the cooperation of other state and local officials. In awarding such contracts the Tax Commissioner shall require that provision be made for such indemnity, bond or contract of insurance as will be sufficient, in the Tax Commissioner's judgment, to hold the state harmless.

(e) For the efficient administration of the powers vested in the Tax Commissioner by this section, the commissioner shall have the power to issue subpoenas and subpoenas duces tecum, and compel the attendance of witnesses and the production of books, papers, records, documents and testimony at the time and place specified. Every such subpoena and subpoena duces tecum shall be served at least fifteen days before the return date thereof by personal service made by any person over eighteen years of age. Service of subpoenas and subpoenas duces tecum shall be the responsibility of the commissioner. Any persons, except a person in the employ of the state Tax Department, who serves any such subpoena or subpoena duces tecum shall be entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state. Upon motion made promptly, and in any event before the time specified in a subpoena or subpoena duces tecum for compliance therewith, the circuit court of the county in which the person upon whom any such subpoena or subpoena duces tecum was served resides, has his or its principal place of business or is employed, or the circuit court of the county in which any such subpoena or subpoena duces tecum was served, or the judge of any such circuit court in vacation, may grant any relief with respect to any such subpoena or subpoena duces tecum which any such circuit court, under the "West Virginia Rules of Civil Procedure for Trial Courts of Record," could grant, and for any of the same reasons, with respect to any such subpoena or subpoena duces tecum issued from any such circuit court. In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which he may be lawfully interrogated, the circuit court of Kanawha County or of the county in which such person resides, has his or its principal place of business or is employed, or the judge thereof in vacation, upon application by the commissioner shall compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from circuit court or a refusal to testify therein. Witnesses subpoenaed under this subsection shall testify under oath or affirmation.

(f) The Tax Commissioner may prescribe all necessary forms and promulgate such rules and regulations as he believes necessary to carry out and enforce the provisions of this article. Such rules and regulations shall be subject to the provisions and requirements of the state administrative procedures act in chapter twenty-nine-a of this code: Provided, That all rules and regulations of the Tax Commissioner regarding ad valorem property taxes presently in effect on the effective date of this article shall remain in full force and effect until amended or repealed by the commissioner in the manner prescribed by law, or abrogated by the enactment of this article or other statutory provisions of this code.

(g) The Tax Commissioner is hereby directed to cooperate with the Joint Committee on Government and Finance of the Legislature in its review, examination and study of the implementation of the property tax limitation and homestead exemption amendment of 1982, section one-b, article ten of the Constitution of West Virginia, and any other similar studies which may arise under the authority granted to the Joint Committee on Government and Finance under the provisions of section three-b, article three, chapter four of this code. The Tax Commissioner shall continuously monitor and enforce the requirements of this article relating to the employment qualifications of employees of the state and its designated agents, and at least quarterly shall ascertain whether such requirements are being met and report thereon to the Joint Committee on Government and Finance. Not less than monthly, the Tax Commissioner shall report to the Joint Committee on Government and Finance or its designated subcommittee on any matters considered or action taken by the West Virginia appraisal control and review commission, or any matters relating to the reappraisal otherwise pertinent or of interest to the Joint Committee on Government and Finance. On or before January 15, 1984, the Tax Commissioner shall report to the Joint Committee on Government and Finance on the benefits, desirability and disadvantages, as well as the alternative methods available, for the possible implementation of section fifty-three, article VI of the Constitution of West Virginia, the forestry amendment.

§11-1A-2. Base year for first reappraisal.

The base year for the first statewide reappraisal shall be the year 1983.

§11-1A-3. Definitions.

As used in this article, unless the context clearly requires a different meaning:

(a) "Assessed value" of any item of property is its assessed value after the certification of the first statewide reappraisal and shall be sixty percent of the market value of such item of property regardless of its class or species, except as hereinafter specifically provided in this article;

(b) "Base year" shall have the meaning ascribed to that term by the provisions of section two of this article;

(c) "Commission" shall mean the West Virginia appraisal control and review commission;

(d) "Commissioner" or "Tax Commissioner" shall mean the chief executive officer of the state Tax Department except in those instances where the context clearly relates to the West Virginia appraisal control and review commission, in which case "commissioner" shall mean any member of such commission;

(e) "Designated agent" shall mean a person, not directly employed by the Tax Commissioner, who is designated by the Tax Commissioner to perform reappraisal functions authorized or required by this article. Such term shall include, but not be limited to, agents and independent contractors, and nothing in this article shall be construed to alter the relationship of the State of West Virginia, or its officers, and such persons to create relationships not contemplated by agreements between the Tax Commissioner and such persons;

(f) "Farm" shall mean and include land currently being used primarily for farming purposes, whether by the owner thereof or by a tenant, and which has been so used for at least seasonally during the year next preceding the then current tax year, but shall not include lands used primarily in commercial forestry or the growing of timber for commercial purposes; and shall not include one acre surrounding the principal residence situate on a farm which shall be valued as a homesite in the same manner as surrounding homes and properties not situated on farmland, taking into consideration such variables as location, resale value and accessibility. The commissioner of agriculture shall formulate criteria upon which a parcel of land qualifies as a "farm." The county assessor may require the assistance of the commissioner of agriculture in making a determination of whether a parcel of land qualifies as a "farm."

(g) "Farming purposes" shall mean the utilization of land to produce for sale, consumption or use, any agricultural products, including, but not limited to, livestock, poultry, fruit, vegetables, grains or hays or any of the products derived from any of the foregoing, tobacco, syrups, honey, and any and all horticultural and nursery stock, Christmas trees, all sizes of ornamental trees, sod, seed and any and all similar commodities or products including farm wood lots and the parts of a farm which are lands lying fallow, or in timber or in wastelands;

(h) "Property situate in this state" shall mean:

(1) Property having legal situs in this state; or

(2) In the case of persons with a place of business located in this state and authorized to do business in this state and one or more other states of the United States or any foreign country:

(A) Any tangible property brought into this state from time to time or otherwise deemed to have situs in this state for purposes of ad valorem property taxation, and

(B) Any intangible property held by such person, wherever evidence thereof is situate. In the case of assessment of such intangible property for ad valorem property taxation after the first statewide reappraisal only such part thereof as may be determined by applicable law or regulation to be subject to such taxation shall be deemed to be situate in this state;

(i) "Value," "market value" and "true and actual value" shall have the same meaning and shall mean the price at or for which a particular parcel or species of property would sell if it were sold to a willing buyer by a willing seller in an arm's length transaction without either the buyer or the seller being under any compulsion to buy or sell: Provided, That in determining value, primary consideration shall be given to the trends of price paid for like or similar property in the area or locality wherein such property is situate over a period of not less than three nor more than eight years next preceding the base year and in the case of a farm or farms shall be determined assuming such land is being used for farming purposes. In addition, the commissioner may, for purposes of appraisement of any tract or parcel of real property, or chattels, real or other species of property, real or personal, take into account one or more of the following factors: (1) The location of such property; (2) its site characteristics; (3) the ease of alienation thereof, considering the state of its title, the number of owners thereof, and the extent to which the same may be the subject of either dominant or servient easements; (4) the quantity of size of the property and the impact which its sale may have upon surrounding properties; (5) if purchased within the previous eight years, the purchase price thereof and the date of each such purchase; (6) recent sale of, or other transactions involving comparable property within the next preceding eight years; (7) the value of such property to its owner; (8) the condition of such property; (9) the income, if any, which the property actually produces and has produced within the next preceding eight years; and (10) any commonly accepted method of ascertaining the market value of any such property, including techniques and methods peculiar to any particular species of property if such technique or method is used uniformly and applied to all property of like species.

§11-1A-4. Identification of property to be appraised; persons required to make return.

(a) On or before December 1, 1983, every person who owns property which was situate in this state on July 1, 1983, shall prepare a return itemizing and describing such property, whether real or personal, and shall file such return with the assessor of the assessment district wherein such property is located, except in the case of a taxpayer whose annual return for the assessment of property is filed with some other public officer, then the return required by this section shall be filed with the Tax Commissioner who shall allocate the contents to the appropriate counties by such means as he determines appropriate. The form for the return shall be designed by the Tax Commissioner, and shall provide a means for the orderly listing of all property not excepted from listing under the provisions of section five of this article. A similar return, itemizing and listing such property, shall also be made, at the same time, by every person holding, possessing or controlling real or personal property as executor, administrator, guardian, trustee, receiver, agent, partner, attorney, president or accounting officer of a corporation, consignee, broker, or in any representative or fiduciary character.

(b) The return required by subsection (a) of this section shall be made and the information furnished:

(1) With respect to an individual who is deceased, the return of such individual required under subsection (a) shall be made by his or her executor, administrator, or other person charged with the property of such decedent;

(2) With respect to a person under a disability who is unable to make a return required under subsection (a), the return of such individual shall be made by a duly authorized agent, committee, guardian, fiduciary or other person charged with the care of the person or property of such individual: Provided, That this subdivision shall not apply in the case of a receiver appointed by authority of law in possession of only a part of the property of an individual;

(3) With respect to a case where a receiver, trustee in bankruptcy, or assignee by order of a court of competent jurisdiction, by operation of law or otherwise, has possession of or holds title to all or substantially all of the property or business of a corporation, whether or not such property or business is being operated, such receiver, trustee, or assignee shall make the return for such corporation in the same manner and form as corporations are required to make such returns;

(4) With respect to property of an estate or a trust, the return shall be made by the fiduciary thereof; and

(5) With respect to the property of a married person who is absent from the state, the return shall be made by his or her spouse.

(c) A return made by one or two or more joint fiduciaries shall be sufficient compliance with the requirements of this section in any case where the return is required to be made by a fiduciary.

(d) With regard to real property not excepted from listing for appraisal under the provisions of section five of this article, a summary legal description sufficient to identify and locate the property shall be given for each parcel of real estate, and, if applicable, the name of the street and number, its area, and if improved, a short statement of the character of the improvements.

§11-1A-5. Property excepted from listing for appraisal.

Bank deposits, money and household goods and personal effects, if such household goods and personal effects are not held or used for profit, are exempt from the ad valorem property taxation and shall not be described and listed on the forms required to be filed under the provisions of section four of this article: Provided, That the term "personal effects" shall include, but not be limited to, firearms and ammunition held for personal use and not for profit. A person shall also not list real property assessed and listed upon the landbooks of the several counties for the taxable year 1983, or on July 1, 1983, for the taxable year 1984.

§11-1A-6. Supplemental information required to be filed.

Every person required to file a tax return under the provisions of article thirteen, twenty-one or twenty-four of this chapter for the period ending on December 31, 1982, or for income received or to be received during the calendar year 1983, shall file a copy of a depreciation schedule included in a federal or state tax return for income taxation for the taxpayer's tax year ending on or after June 1, 1982, or if the person did not prepare a depreciation schedule for such return or elects not to disclose the schedule from the tax return, a schedule showing property on which a deduction for depreciation could be claimed against gross or adjusted gross income received or receivable in the selected year, including a brief description of such property, its basis and, to the extent the taxpayer elects, any accumulated depreciation the taxpayer could have claimed in such year and prior years.

§11-1A-7. When valuations not certified.

If a person is required under the provisions of this article to fix what he deems to be the true and actual value of an item of property, whether real or personal, and if such valuation is not required to be made on any other tax return, then the valuation required by this article shall not be taken as certified or given under oath, but all other information required to be given under the provisions of this article shall be deemed to have been given under oath.

§11-1A-8. Ascertainment of assessed value as of July 1, 1983.

(a) All real property assessed and listed upon the landbooks in the several counties as of July 1, 1983, and property required to be described and listed pursuant to section four of this article, shall as soon as the same be returned or, if not returned, listed on the landbooks or otherwise identified, be categorized and systematically inventoried by the assessor of the county wherein such property is returned or returnable and by the Tax Commissioner in the case of property returned or returnable to the Tax Commissioner, for the purpose of ascertaining what the previously assessed value for each such item was or would have been as of July 1, 1983.

The information shall be categorized and systematically inventoried in accord with requirements specified by the Tax Commissioner and entered into the statewide data bank established by the Tax Commissioner for such purpose by the officer with whom the return is to be filed. The Tax Commissioner shall provide for the receipt and permanent preservation of the information entered in the data bank under this section and under the provisions of section nine of this article. As to any such property not so assigned a previously assessed value, effort shall be made by the appropriate county assessor to cause a back assessment to be made for the assessment date of July 1, 1983, and subsequent assessment dates thereafter, if such assessment would have been proper as of July 1, 1983, or thereafter, under law applicable to assessments on such dates.

(b) Property which is exempt from taxation under the provisions of section nine, article three of this chapter shall nonetheless be listed pursuant to section four of this article, and categorized and inventoried pursuant to subsection (a) of this section, and the exemption confirmed or not confirmed.

(c) It is the intention of the Legislature in enacting this section to provide a mechanism for determining the previously assessed value of property as that term is used in subsection (D), section one-b, article X of the Constitution of West Virginia, in order that such previously assessed value may be compared with the assessed value of such property following the first statewide reappraisal to determine whether there is a resulting increase which should be allocated over a period of ten years in equal amounts annually, as required by the said Constitutional provision.

§11-1A-9. Subsequent alterations in property; economic change.

In determining the previously assessed value of any property under the provisions of section eight of this article or in determining the market value or the assessed value of property as those terms are defined in section three of this article, the appraiser or assessor shall record any information evidencing alterations in the property subsequent to July 1, 1983, including, but not limited to, substitutions, accretions, improvements, additions, replacements, destructions, removals, casualties, acts of God, waste or any like occurrences. The economic impact on the property, whether inflationary or deflationary as to value, shall be noted, but not considered to have an effect upon the previously assessed value.

§11-1A-10. Valuation of farm property.

(a) With respect to farm property, the Tax Commissioner shall appraise such property so as to ascertain its fair and reasonable value for farming purposes regardless of what the value of the property would be if used for some other purpose, and the value shall be arrived at by giving consideration to the fair and reasonable income which the property might be expected to earn in the locality wherein situated, if rented. The fair and reasonable value for farming purposes shall be deemed to be the market value of such property for appraisement purposes.

(b) A person is not engaged in farming if he is primarily engaged in forestry or growing timber. Additionally, a corporation is not engaged in farming unless its principal activity is the business of farming, and in the event that the controlling stock interest in the corporation is owned by another corporation, the corporation owning the controlling interest must also be primarily engaged in the business of farming.

§11-1A-11. Valuation of certain classes or species of property; reserve coal properties; oil producing properties; gas producing properties; timberland; active mining mineral interest; commercial real property and industrial land; commercial and industrial furniture, fixtures, machinery and equipment; intangible personal property; public utility property; vehicles, watercraft and aircraft.

On or before September 1, 1983, the Tax Commissioner shall propose a legislative rule for submission to the Legislature pursuant to the provisions of article three, chapter twenty-nine-a of this code, which rule shall describe in detail the methods whereby the Tax Commissioner will determine the market value, during the first statewide reappraisal, of the following property:

(1) Active and reserve coal properties;

(2) Oil producing properties;

(3) Gas producing properties;

(4) Timberland;

(5) Active mining mineral interests including limestone, fireclay, dolomite, sandstone and other actively mined minerals;

(6) Commercial real property and industrial land;

(7) Commercial and industrial furniture, fixtures, machinery and equipment;

(8) Intangible personal property, including stock, accounts receivable and stocks in banks and capital of savings and loan associations;

(9) Public utility property; and

(10) Vehicles, watercraft and aircraft.

§11-1A-12. Division of functions between the Tax Commissioner and assessor; local exceptions to value; revisions by Tax Commissioner; participation by assessor in hearings and appeals.

(a) It is the intent of the Legislature that in carrying out the appraisal functions required by this article, the Tax Commissioner shall utilize the county assessors and their employees. The county clerk shall prepare a list of all transfers of real property recorded during the calendar year one thousand nine hundred eighty-three for which payment of the excise tax on the privilege of transferring real property, required by article twenty-two of this chapter was required, and forward such list to the Tax Commissioner during the second month following such transfers' recording with the clerk of the county commission. The assessor shall review the landbooks for his county for the tax year one thousand nine hundred eighty-three and one thousand nine hundred eighty-four, and shall prepare a written property description of every parcel of real property not previously described on a property record card provided to the assessor by the Tax Commissioner under the provisions of section eleven, article nine-a, chapter eighteen of this code. The assessors may compile lists of comparable property sales and recommend appraisal values with respect to any property in their districts to which the Tax Commissioner shall give consideration when he fixes values for such property for reappraisement purposes to the extent such recommended values are supported by competent evidence.

(b) In each county during the reappraisal function, the Tax Commissioner shall designate a tax department employee as the coordinator of reappraisal functions among the commissioner's personnel, the commissioner's designated agents, and the assessor's personnel so as to ensure that the resulting appraisal shall be complete, equal and uniform. In each county, the Tax Commissioner or his designated agent shall prepare a description of the number, job description and minimum qualifications of personnel needed to accomplish the reappraisal, other than permanent employees of the Tax Commissioner or employees of the assessor. The Tax Commissioner or his designated agent shall employ qualified individuals to fill the positions giving first preference to persons registered with the Bureau of Employment Programs' job service program, but all such persons shall be residents of the county, or if the Tax Commissioner finds it necessary for efficiency, any contiguous county, or if none be available, the state. The Tax Commissioner shall make reasonable efforts to assure that the additional employment required by this article is allocated equitably among the several counties, with attention to the level of unemployment in and the population of each county.

(c) To the extent that the Tax Commissioner concludes that assessors and local employees have overemphasized or underemphasized local aspects in determining value, the Tax Commissioner may revise information concerning such values so as to achieve uniformity in the statewide reappraisal: Provided, That in any hearings or appeals under the provisions of this article the assessor or employee who participated in the gathering of such information may be a competent witness as to how tentative values were arrived at in the process of reappraisal before any such revision.

§11-1A-13. Assurance of fair treatment.

The Tax Commissioner shall require that his employees and any designated agent visit each parcel of land to be reappraised and perform other functions to assure a competent appraisal.

Upon any visit to land, no such employee, agent or employee of the agent shall enter into a dwelling house or the curtilage thereof, if any, unless the employee or agent shall give written notice to an adult person then present of the right of residents thereof to refuse such entry, nor insist upon entry upon any other land except at reasonable times, nor in any manner harass a person for refusing such entry or refusing entry at an unreasonable time, nor in any other manner intentionally harass or abuse any person incident to any such visit.

The Tax Commissioner shall assure that his employees and agents afford to all taxpayers before he certifies the reappraisal reasonable opportunity to review and comment in writing upon the accuracy of all real property descriptions and other reappraisal property listings and use reasonable means to resolve differences in such descriptions and listings, including informal hearings, reinspections where indicated, and written notice to any aggrieved taxpayer of the results of such review.

Failure to comply with requirements of this section shall not be construed to invalidate a reappraisal value once determined and certified by the commissioner but upon any appeal or review of such certified reappraisal any evidence obtained in violation of the requirements of this section may be excluded unless corroborated.

The Tax Commissioner shall assure that his employees and agents maintain written records of all changes made in property descriptions or values by reason of informal reviews with taxpayers and all visits to land, including the dates thereof, names of participating persons present and a fair summary of the reasons for any changes. Such records shall be subject to inspection and production in any consideration of the propriety of the appraised value and may be admissible in evidence if otherwise probative upon the issue under consideration.

§11-1A-14. Release of results of statewide reappraisal; legislative rule regarding changes in quality or quantity of property; publication and certification of statewide reappraisal.

(a) As the Tax Commissioner completes the appraisal process he may make the information concerning the reappraised values available, either upon request or by notice as hereinafter provided for in this article: Provided, That no such information shall be made available by the Tax Commissioner unless and until the same information is available throughout the assessment district for all property within the same class or species as the particular property for which appraisal values are to be made available.

(b) On or before September 1, 1984, the Tax Commissioner shall propose a legislative rule for submission to the Legislature pursuant to the provisions of article three, chapter twenty-nine-a of this code which rule shall describe in detail the method whereby the Tax Commissioner will adjust appraised values determined by the statewide reappraisal on account of substitutions, accretions, improvements, additions, replacements, destructions, removals, casualties, acts of God, waste or any like occurrences.

(c) At the time of making available information as to appraised value as provided for in this section which shall not be later than March 31, 1985, the Tax Commissioner shall certify and publish such results for use when directed by the Legislature. As certifications are made and notice is given to taxpayers as provided for in section sixteen of this article, request for review, hearing and appeal under said section may proceed notwithstanding the fact that the statewide reappraisal is not completed for all classes and species of property in all counties of the state. However, none of the appraised values ascertained during the course of the statewide reappraisal of property shall be utilized for assessment purposes unless and until the statewide reappraisal is completed for all classes and species of property in all counties and the use of the results have been directed by the Legislature.

(d) Inasmuch as it is the intent of the Legislature that the Tax Commissioner concentrate his reappraisal efforts upon the first statewide reappraisal until it is completed, and because prior reappraisal methods and results may not be wholly consistent with the methods and results of the statewide reappraisal, the Tax Commissioner shall not complete, deliver or certify appraisals of nonutility real property and nonutility personal property under the provisions of section eleven, article nine-a, chapter eighteen of this code, after the effective date of this article and prior to the completion, publication and certification of the first statewide reappraisal under this article: Provided, That the Tax Commissioner shall not be precluded from correction of prior appraisals under the provisions of current or prior law, but this proviso shall not be construed to avoid the other provisions of this paragraph.

§11-1A-15. Appraisal of property; lists to county officials.

(a) All real property assessed, or which should have been assessed, as of July 1, 1983, and all property described and listed pursuant to section four of this article, shall be appraised by the Tax Commissioner at its value as defined in this article, in order that the Tax Commissioner may comply with the requirement of section one of this article.

(b) As appraisals are completed and notices given in accordance with the provisions of section sixteen of this article, lists of the property appraised, the owners and valuations shall be delivered to the assessor, the county commission and the sheriff of the county wherein the appraised property is liable to assessment.

§11-1A-16. Administrative review of appraisal.

(a) Upon receipt by the assessor of the lists of property appraised and the owners and the valuations thereof, as provided by section fifteen of this article, the assessor shall forthwith cause a notice to be given in the form of a Class I-O legal advertisement which advises that the appraisal of property within the county is or has been completed and that the results thereof are available to any person interested therein in the office of sheriff of the county wherein the property is located. After such advertisement has been made, the assessor shall forthwith mail to each owner, a notice of the amount of such valuation. The notice shall be addressed to the person or persons in whose name any such property is assessed or who is liable, and shall be mailed to the address of such person or persons as reflected upon the tax tickets in the office of the sheriff of the county wherein such property is located. Such notice shall be in a form prescribed by the Tax Commissioner and shall inform the owner that if he desires to challenge such valuation he must inform the Tax Commissioner within twenty-one days of the date of such notice, in writing, of his intention to so challenge the valuation.

(b) If the owner mails such writing to the Tax Commissioner within twenty-one days of the date of the notice of valuation, the Tax Commissioner shall, within thirty-five days after the date of the notice of valuation, provide the owner and the assessor with a written statement of the information upon which the Tax Commissioner relied in making such appraisal.

(c) Within twenty-one days after the date of the written statement of information furnished by the Tax Commissioner as provided in subsection (b) of this section, the owner may request the Tax Commissioner to review the valuation of this property. Such request shall be in writing, shall state fully the reasons for the request, and shall be supported by such evidence as will enable the Tax Commissioner to make the redetermination described in subsection (d) of this section.

(d) After a request for review is made under subsection (c) of this section, the Tax Commissioner shall determine whether or not (1) the process of making the appraisal is reasonable under the circumstances, and (2) the amount of valuation of the appraised property is appropriate under the circumstances. In determining whether the appraisal is reasonable and the amount of the valuation appropriate, the Tax Commissioner shall take into account not only information available at the time the appraisal was made but also information which subsequently becomes available. The Tax Commissioner shall notify the owner and the assessor of his determination made under this subsection.

(e) If, at any time prior to making the determination required by subsection (d) of this section, the Tax Commissioner shall conclude that an appraised value is incorrect as a result of a clerical error, or a mistake occasioned by an unintentional or inadvertent act as distinguished from a mistake growing out of the exercise of judgment, he may correct such error or mistake and shall give notice thereof to the taxpayer, and the appropriate assessor, county commission and sheriff to whom lists of appraisals have been provided in accordance with section fifteen of this article.

(f) The assessor shall be reimbursed by the Tax Commissioner for the postage expended to mail the notices required by this section. Such forms and envelopes as may be required shall be furnished by the Tax Commissioner.

(g) Whenever the property has been returned or is returnable to the Tax Commissioner, the Tax Commissioner shall perform the duties imposed upon the assessor by this section. In such case, the Tax Commissioner shall specify in such notice the county in which a review of such appraisal shall be heard. The Tax Commissioner shall specify the county in which he determines that a larger portion of the property appraised is or is usually situate and his determination thereof shall be final.

§11-1A-17. Review of appraisal by the county commission sitting as an administrative appraisal review board.

(a) Within thirty days after the earlier of (1) the day the Tax Commissioner notifies the owner of his determination described in subsection (d) of the preceding section, or (2) the twenty-first day after the request described in subsection (c) of the preceding section was made, the owner may petition for a hearing of record before the county commission of the county in which the larger portion of the appraised property is liable to assessment for ad valorem property taxation. Contemporaneously with the filing of the petition with the county commission, the owner shall mail a copy of the petition to the Tax Commissioner and the assessor, and the petition shall have endorsed or appended to it a certificate by the owner or his attorney that such copies were mailed.

(b) The county commission shall sit as an administrative appraisal review board, shall hear such testimony, under oath, as the owner, the Tax Commissioner and other witnesses may offer, and shall make a true record of the testimony by nonstenographic electronic recording suitable to assure that the recorded testimony will be accurate and trustworthy. Upon making such true record and preserving the other evidence presented, the commission shall determine whether the amount of value fixed by the appraisal of the property is correct under the circumstances. If the county commission finds the appraisal to be correct it shall enter an order approving the value as appraised and adopting by reference the determination and reasons made by the commissioner under subsection (d), section sixteen of this article. If the county commission determines that the amount of value fixed by the appraisal of the property is incorrect, and if sufficient evidence has been presented to permit correction of the appraisal, the county commission shall correct the appraisal and fix the value of the appraised property. If the county commission shall find that the evidence is not sufficient to determine the correct value, the county commission shall direct the parties to develop and present such evidence, and may continue the hearing from time to time for this purpose until there be evidence before it sufficient to fix the correct value. Upon making a determination, the county commission shall enter an order and inform the parties in writing, setting forth in summary form the reasons for such determination.

(c) Any person who is a taxpayer of ad valorem property taxes in any West Virginia county may protest an appraisal of property under this article for good cause alleged and shown. A person desiring to protest a reappraisal of property shall petition for a hearing before the administrative appraisal review board in the same manner as an owner would petition for hearing with regard to the appraisal of his property under the provisions of subsection (a) of this section: Provided, That a petition for protest must be filed with the county commission within forty-five days after the publication of the notice required in subsection (a), section sixteen of this article. The hearing of a protest shall be governed by the same procedures described for hearings in subsection (b) of this section.

(d) Upon a showing of good cause, any person who is a taxpayer of ad valorem property taxes in any West Virginia county may be permitted to intervene in the hearing provided for in this section.

§11-1A-18. Review by circuit court on certiorari.

Within thirty days after the day the county court notifies the parties of a final determination of value made pursuant to section seventeen of this article, the owner, Tax Commissioner, protestor or intervenor may request the county commission to certify the evidence and remove and return the record to the circuit court of the county on a writ of certiorari instituted in accordance with the provisions of article three, chapter fifty-three of this code. For purposes of this article, the recorded testimony of the hearing, when certified by the county commission, may be used by the circuit court as the transcript of testimony.

§11-1A-19. Subsequent statewide reappraisals required.

After the first statewide reappraisal, to be completed on or before March 31, 1985, the commissioner shall require that periodic reviews of property valuation shall take place so as to ensure that all property is valued at market value as set forth herein at all times: Provided, That statewide reappraisals of property shall take place at least every ten years after 1985.

§11-1A-20. Cooperation of other agencies of state and local government.

The several departments and agencies of state government, county commissions and county assessors are hereby authorized, required and directed to render such necessary aid and assistance to the Tax Commissioner as is required to enable the commissioner to complete the first statewide reappraisal of all property by March 31, 1985.

§11-1A-21. Electronic data processing system network for property tax administration.

(a) The Tax Commissioner shall devise and cause to be established a statewide electronic data processing system network, to facilitate administration of the ad valorem property tax on real and personal property, through the timely sharing of property tax information among county assessors and the Tax Commissioner.

(b) Each county shall lease, at its expense, the data processing equipment required by the commissioner to be located in each county. Additionally, each county shall provide, at its expense, the necessary staffing and operating personnel and all other necessary facilities, including telephone and other communications equipment, to allow on-line interaction with the host computer or such other computer as the commissioner may designate. Each county shall be charged by the commissioner for its proportionate share of the cost for use of the host computer and other related services. Such data processing and communications equipment must be installed and tested and county personnel trained to use the equipment on or before July 1, 1985.

(c) To ensure equipment compatibility and the efficient operation and maintenance of the statewide electronic data processing system network, the commissioner shall select and may, from time to time, change equipment suppliers at the state and any county level. All equipment for the system shall be acquired under the purchasing procedures specified in article three, chapter five-a of this code.

(d) The commissioner may promulgate reasonable rules governing the operation of the statewide electronic data processing system network. Such rules shall, at a minimum, specify that each assessor shall enter all changes in the description, status, classification and value not later than the calendar month following the month during which the changes took place. The rules shall provide for thorough and adequate safeguards to prevent unauthorized access to the system network and the database. The commissioner shall make available to every taxpayer, upon his request, through the system, the description and appraised value of each parcel valued and the method used in determining the appraised value. The system shall be capable of providing for the assessment of each parcel and item of property at sixty percent of its appraised value and for the phasing-in of the first statewide reappraisal, as to each parcel and item of property and the phasing-in of any subsequent reappraisal as may be authorized by the Legislature.

(e) County assessors shall convert or cause to be converted, at county expense, any current assessment information not in the data files of the Tax Commissioner for purposes of the first statewide reappraisal and the preparing of a system of assessments utilizing the results of the reappraisal, to be phased in as required in section twenty-two of this article. Such conversion shall be completed on or before July 1, 1985.

(f) The commissioner may offer to county sheriffs, as an optional service, a uniform computerized property tax billing and accounting system using the assessed values and taxpayer information generated through the statewide system. Each sheriff using such optional services shall be charged the proportionate cost for use of the host computer and related services and materials, which charge shall be paid by the county commission.

(g) The commissioner is hereby specifically authorized and empowered to enter into such contracts as may be necessary and for which funds may be available to establish the electronic data processing system provided for in this section.

(h) The cost of any service or act performed by the commissioner under the provisions of this section shall be paid by the county commission of the county for which the service or act was provided. The cost of any service or act shall be the actual cost and expense incurred by the commission to provide the service or act. The commissioner shall render to the county commission a statement of the costs as soon after the same were incurred as practicable. It shall be the duty of the county commission to allow the same and to cause it to be paid promptly in the manner that other claims and accounts are allowed and paid and the amount owed to the Tax Commissioner shall constitute a debt due the state which may be satisfied from any money owed the county commission by the state for any reason.

(i) Payments received for the cost of services or acts performed by the commissioner under this system shall be deposited in a revolving fund which shall be known as the "county tax fund," hereby created in the state Treasurer's office.

(j) As used in this section, the following terms mean:

(1) "System" means the statewide electronic data processing system network for administration of the ad valorem property tax on real and personal property provided for in this section.

(2) "Electronic data processing" means the use of the computer for operations which include the storing, retrieving, sorting, merging, calculating and reporting data for use in preparing assessment rolls, tax list, tax bills and other reports for use in property tax administration.

§11-1A-22. Phase-in, determination thereof, application and limitations.

The Legislature hereby finds that the "Property Tax Limitation and Homestead Exemption Amendment of 1982" intended to provide that the increased valuation of property, both real and personal, resulting from the first statewide reappraisal be allocated over a period of ten years in equal amounts annually.

The Legislature further finds and ascertains that the only fair and equitable manner to achieve the allocation of increased valuation over a period of ten years in equal amounts annually is to provide that upon determination by the first statewide reappraisal of the appraised value of each parcel of land or interest therein and each item of personal property, sixty percent of each appraised value shall be compared with its corresponding assessed value for the base year as adjusted to establish the assessed value for the year next preceding the first year of the phase-in. If sixty percent of the appraised value is larger than the previously assessed value for the year next preceding the first year of the phase-in, the difference shall be divided into ten equal parts. For the tax year one thousand nine hundred eighty-six and for each subsequent year through the tax year one thousand nine hundred ninety-five, the assessed value for the base year shall be increased by one such tenth part. The result plus sixty percent of any subsequent annual increases in appraised value or less sixty percent of any annual decreases in appraised value shall be the assessed value for each such year: Provided, That such assessed value shall not exceed sixty percent of the market value in any year.

§11-1A-23. Confidentiality and disclosure of property tax returns and return information; offenses; penalties.

(a) Secrecy of returns and return information. -- Property tax returns and return information filed or supplied pursuant to this article and articles three, four, five and six of this chapter and information obtained by subpoena or subpoena duces tecum issued under the provisions of this article shall be confidential and except as authorized in this section, no officer or employee of the state Tax Department, county assessors, county commissions and the board of public works shall disclose any return or return information obtained by him or her, including such return information obtained by subpoena, in any manner in connection with his or her service as such an officer, member or employee: Provided, That nothing herein shall make confidential the itemized description of the property listed, in order to ascertain that all property subject to assessment has been subjected to appraisal: Provided, however, That the commissioner and the assessors shall withhold from public disclosure the specific description of burglar alarms and other similar security systems held by any person, stocks, bonds and other personal property held by a natural person, except motor vehicles and other tangible property utilized publicly, and shall withhold from public disclosure information claimed by any taxpayer to constitute a trade secret or confidential patent information: Provided further, That such property descriptions withheld from public disclosure shall be subject to production and inspection in connection with any review, protest or intervention in the appraisal or assessment process, under such reasonable limitations as the board of review, board of equalization and review or court shall require. The term officer or employee includes a former officer, member or employee.

(b) Disclosure. -- (1) Information made confidential by subsection (a) of this section shall be open to inspection by or disclosure to officers, members and employees of the state Tax Department, county assessors, county commissions, county sheriffs, municipal financial officers and to members of the board of public works whose official duties require such inspection or disclosures for property tax administration purposes. Disclosure may be made to persons, or officers or employees thereof, who are employed by the State Tax Commissioner by contract or otherwise, provided such person, or officer or employee thereof, shall be subject to the provisions of this section as fully as if he or she was an officer or employee of the state Tax Department. Information made confidential by subsection (a) of this section shall be open to inspection by the property owner providing such information and to his or her duly authorized representative.

(2) Information made confidential by subsection (a) of this section may be disclosed in a judicial or administrative proceeding to collect or ascertain the amount of tax due, but only if: (i) The taxpayer is a party to the proceedings or; (ii) such return information directly relates to a transactional relationship between a person who is a party to the proceeding and the taxpayer which directly affects the resolution of an issue in the proceeding.

(c) Reciprocal exchange. -- The Tax Commissioner may permit the proper officer of the United States, or the District of Columbia, or any other state, or his or her authorized representative, to inspect reports, declarations or returns filed with the Tax Commissioner or may furnish to such officer or representative a copy of any such document provided such other jurisdiction grants substantially similar privileges to the Tax Commissioner or to the Attorney General of this state.

(d) Penalties. -- Any officer, member or employee of the state Tax Department, county assessors, county commissions, county sheriffs, municipal financial officers and the board of public works who violates this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned for not more than one year, or both, together with the costs of prosecution.

(e) Limitations. -- Any person protected by the provisions of this article may, in writing, waive the secrecy provision of this section for such purpose and such period as he or she shall therein state, and the officer with whom such waiver is filed, if he or she so determines may thereupon release to designated recipients such taxpayer's return or other particulars filed under the provisions of the tax articles administered under the provisions of this article.

This section shall not be construed to prohibit the publication or release of statistics so classified so as to prevent the identification of particular reports and the items thereof nor to prevent the publication and release of assessments and appraised values of property.

§11-1A-24. Creation and use of appraisal manual.

The Tax Commissioner shall develop, or cause to be developed, appraisal manuals for all species of property, for use in making statewide reappraisals. These manuals shall be used by the Tax Commissioner, county assessors, county commissions, the board of public works and any property appraisal firm or firms employed to assist in making statewide reappraisals. These manuals shall, at a minimum: (1) Provide guidelines for determining the appraised value of all species of property that are consistent with this article; (2) establish work procedures; and (3) promote uniformity of approach to tasks. The Tax Commissioner and his designated agents shall consult with each of the county assessors in the preparation of all such manuals.

§11-1A-25.

Repealed.

Acts, 1998 Reg. Sess., Ch. 285.

§11-1A-26. Appraisal of corporate property; reports to Tax Commissioner by corporations.

Each incorporated company, foreign or domestic, having its principal office or chief place of business in this state, or owning property subject to taxation in this state, shall include with the return required by this article, a list of the following items: (a) The amount of capital authorized to be employed by it; (b) the amount of cash capital paid on each share of stock; (c) the amount of credits and investments other than its own capital stock held by it on said date, with their true and actual value; (d) the quantity, location and value of all its real estate, and the tax district or districts in which it is located; and (e) the kinds, quantity and value of all of its tangible property in each tax district in which it is located.

The list required by this section shall be under oath, which oath shall be substantially as follows:

State of West Virginia, County of _________________, ss.

I, ___________________, president (treasurer or manager) of (here insert name of corporation), do solemnly swear (or affirm) that the foregoing is, to the best of my knowledge and judgment, true in all respects; that it contains a statement of all the real estate and personal property, including credits and investments belonging to said corporation; and said corporation has not, to my knowledge, during the sixty-day period immediately prior to the first day of the assessment year converted any of its assets into nontaxable securities or notes or other evidence of indebtedness for the purpose of evading the assessment of taxes thereon; so help me God.

________________________________

The officer administering such oath shall append thereto the following certificate, viz:

Subscribed and sworn to before me by __________________ this the ________ day of ___________________________, 19___.

________________________________

§11-1A-27.

Repealed.

Acts, 1997 Reg. Sess., Ch. 60.

§11-1A-28. Review appraisal requirements; qualifications of review appraisers with respect to residential property; review appraisers to be competent witnesses.

In the conduct of mass appraisal of residential real property the Tax Commissioner shall assure that the person who evaluates the collected data with respect to any parcel of real property subject to such appraisal and visits the property for the purpose of reviewing such data, actual conditions, and estimated value is in the first instance, with respect to residential property containing eight or fewer dwelling units, a bona fide resident of West Virginia for at least one year prior to employment in such capacity and is a person familiar with the area in which such property is located, including the amenities of the area and general trend of market values over the period during which the trend is required by law to be considered. Such person shall, if qualified under this section, be a competent witness in all proceedings relating to the appraisal of such property, notwithstanding any further review or refinement of the data or other consideration in such appraisement.

§11-1A-29. Requirements for state employees and employees of designated agents; legislative findings; modification of existing contract for mass appraisal; exemption of certain appraisal employees of Tax Commissioner from civil service.

Of the whole number of persons engaged in the reappraisement process, ninety-five percent of all persons employed by the state and its designated agents in this state to conduct any part of the reappraisal shall be residents of the state. The Legislature finds that the process of reappraisement, the acceptance of the results by the public, and the deeply held attitudes and outlook of the citizens of the state require, for the success of the reappraisement and the acceptance of the widespread resulting adjustments in assessment values, that this stringent requirement be strictly adhered to, to the end that school revenues and other local income and taxation have the benefit of the reappraisement as promptly as possible.

On the effective date of this section, the contract of the state for mass appraisal of residential properties and other reappraisal services shall be modified as follows:

(1) To conform with this article; and

(2) To remove from the contract data encoders and other clerical help, at an aggregate reduction in cost under the contract of at least $3 million.

After investigation, the Legislature finds that the contractor is amenable to the modification of its contract to conform with the requirements of this article. The Tax Commissioner is directed to conform such contract to the requirements of this article within ten days after the effective date of this section.

The data encoders and other clerical employee positions required to be transferred from the contract to state employment pursuant to this section, being temporary positions requiring prompt employment of limited duration are hereby classified exempt for the purposes of article six, chapter twenty-nine of this code. The Tax Commissioner is hereby granted plenary authority, subject only to the supervision of the Governor, to determine all terms and conditions of employment of such employees.

§11-1A-29a. Duty of Tax Commissioner, assessors, sheriffs and county commissions in valuation of property.

Except as to hearing and deciding petitions for review by the several county commissions, it shall be the responsibility and duty of the Tax Commissioner to see to the proper and accurate valuation of all property subject to appraisal pursuant to this article or article one-b of this chapter, except for nonutility personal property. It is likewise the duty of the several county assessors, sheriffs and county commissions to assist the Tax Commissioner in his efforts to ascertain the true value of all such property and it is likewise their individual and collective duties to see to the proper and fair valuation of property within their respective counties. It shall be the responsibility and duty of each county assessor to see to the proper and accurate valuation of all nonutility personal property appraised pursuant to this article. The assessor shall review the initial appraisal of such personal property and shall make such adjustments as will render said appraisal equal and uniform. The Tax Commissioner shall provide such necessary guidelines and instructions, in accordance with chapter twenty-nine-a of this code to assessors as will ensure fair and uniform values of such property within each county and among all counties in this state. The Tax Commissioner shall review each assessor's work to ensure that such guidelines and instructions have been uniformly followed. Any changes in appraised values shall be entered into the computer network required by section twenty-one of this article, and notice of such change shall be mailed to the property owner. The failure of any such county official so to do or to carry out his or her duties with respect thereto shall constitute grounds for the removal from office of any such official.

§11-1A-30. Severability.

The provisions of subsection (cc), section ten, article two, chapter two of this code regarding severability shall be deemed to be included herein as if set forth in extenso in this section.

§11-1B-1. Legislative findings and intent.

(a) The Legislature hereby finds that many citizens and taxpayers of this state have the belief that an unacceptable number of errors and misinformation are included within the results of the statewide appraisement of property subject to ad valorem taxes pursuant to the amendment of Article X, Section 1b of the Constitution of West Virginia, adopted in 1982, which belief is sufficient to cast doubt over the results of such reappraisal in the mind of the general public.

(b) The Legislature recognizes that the Constitutionally mandated reappraisal required an unprecedented effort to be expended by the state and counties to identify and establish the value of all the property of this state in a fair, equal and uniform manner. The Legislature also finds that the success of such an ambitious and important program depends in large measure upon public confidence and assurance as to its fairness and accuracy. The revenues produced by ad valorem taxation are vital to county government, public education, and municipalities, and only upon full compliance with the purpose and intent of the Constitutional requirements may our citizens and their representatives determine the appropriate level of ad valorem taxation.

(c) It is therefore the intent of the Legislature to provide a process by which property owners, if they so desire, may inquire of and object to the results of such reappraisement and have the same reviewed and, in the proper cases, adjusted so as to reflect the true value of all property subject to ad valorem taxes prior to the implementation of such reappraisement by the Legislature. It is further intent of the Legislature that to these ends the Tax Commissioner, the several county commissioners, assessors and sheriffs shall expend the maximum efforts to addressing the inquiries and complaints of taxpayers with respect to the reappraisal and in an expeditiously and orderly manner seek to review and ascertain fair and accurate values for all properties.

§11-1B-2. Application of article.

The provisions of this article shall apply only to the appraisement of property subject to ad valorem taxation and which was required by law to be appraised pursuant to the mandate set forth in Article X, Section 1b of the Constitution of this state as amended in the year one thousand nine hundred eighty-two, and shall not apply to any appraisement or reappraisement of any such property in any county or counties of this state prior to the adoption of such amendment nor subsequent to the year one thousand nine hundred eighty-seven.

§11-1B-3. Definitions.

As used in this article, unless the context in which used requires otherwise:

(1) "Assessed property," "taxable property" or "property" shall mean and include all real estate and personal property or interests therein which were required to be appraised pursuant to Article X, Section 1b of the Constitution of this state, as amended in 1982 (except as may be exempted from ad valorem taxation by the provisions of Article X, Section 1a of the Constitution of this state as amended in 1984) and any statute or statutes subsequently enacted which would implement such amendment and, with respect to real property, any and all improvements or structures thereon or attached thereto.

(2) References to the term or terms "the appraisal" or "the appraisement," "appraisal" or "appraisement" shall mean the appraisement of property which was made or performed following the adoption of and pursuant to the amendment to Article X, Section 1b of the Constitution of West Virginia adopted in 1982 and also pursuant to article one-a of this chapter, and any modifications and revisions made thereto prior to the effective date of this article, subject however, to those exemptions subsequently granted by the amendments to Section 1a of said Article X of the Constitution adopted in 1984.

(3) "Market value" or "true and actual value" or the unqualified word "value" shall have the same meaning ascribed thereto by the provisions of subdivision (i), section three, article one-a of this chapter.

§11-1B-4. Appraisal of property.

(a) All property as defined in section three of this article shall be appraised at its true and actual value as that term is defined in subdivision (i), section three, article one-a of this chapter.

(b) Any provision of article one-a of this chapter or of any other provision of law to the contrary notwithstanding, neither the appraisement nor the values ascertained thereby shall be used by the several county assessors, county commissions or the tax department for purposes of ad valorem tax assessments until after June 30, 1987 except in accordance with this article.

§11-1B-5. Preparation of property list by Tax Commissioner; publication by sheriff.

(a) The Tax Commissioner shall compile a list of all separately assessed property which was subject to the appraisal. A separate list shall be compiled for each county, which list shall include the district in which the property is or was located at the time of appraisals, the owner or owners of such separately assessed item or parcel at that time and the appraisal value thereof. To the extent known by the Tax Commissioner, such list shall include and reflect the name of the current property owner to the extent ownership of the subject property has changed since its reappraisal. Such list shall be delivered to the several assessors, sheriffs and county commissions on or before June 15, 1986. All proposed final appraisals shall be included in such list and shall reflect all final revisions and modifications which are made or to be made prior to such date pursuant to sections sixteen and seventeen, article one-a of this chapter with respect to property which has been subject to revisions or modifications in the value thereof, or if an appeal is pending before the county commission with respect to the value of any such property then the list shall include the last value certified by the Tax Commissioner to the county commission as to such property or if the value has been established by order of the county commission and a petition for writ of certiorari is still pending before the circuit court and shall have not been finally determined by the court, then the value last adopted by the county commission shall be included in the list and such fact or facts shall be separately noted in such list.

(b) The sheriff shall, upon receipt of the list required to be compiled and delivered by the Tax Commissioner, forthwith cause notice to be given owners that the appraisal of all property subject to ad valorem taxation within the county has been completed and that the results thereof are available to any person interested therein at the office of the assessor. Such notice shall be given in the form of a Class I-O legal advertisement in the accordance with article three, chapter fifty-nine of this code and the publication area shall be the county. The assessor shall simultaneously inform the Tax Commissioner of the fact that the notice was or has been published according to the requirements of this section.

§11-1B-6. Notice of appraised values of real property to owner by Tax Commissioner; content; form.

(a) The Tax Commissioner shall also on or before August 15, 1986, first mail to each owner, a notice of the amount of such appraised value of all real property subject to ad valorem taxation, as modified or revised. Such notice shall be addressed and mailed to the person or persons in whose name any and all such real property is assessed or was assessed in 1983, or if the property has been transferred or replaced upon the tax books of the sheriff, then at the name and address reflected upon the tax tickets in the office of the sheriff of the county wherein such property is located. If such address be unknown to the Tax Commissioner, an alphabetical listing of such properties shall be forwarded to such sheriff on or before June 15, 1986, and such sheriff shall provide the appropriate mailing address for each such property in the list, such completed list to be returned to the Tax Commissioner on or before July 1, 1986.

(b) Any notice returned by the post office as undeliverable or returned to the tax department for lack of address shall be forwarded to the office of the sheriff of the county. The sheriff shall cause such notices to be delivered by certified mail, or in any manner reasonably designed to ensure that such property owners will be properly notified. It is the duty of the county assessors to assist in the discovery of proper mailing addresses necessary in order that appraisal notices may be delivered in a timely fashion. Any additional expenses or costs incurred by the sheriff or the assessor, or both, in completing the duties assigned to each by the provisions of this subsection shall be paid or reimbursed by the county commission upon certification by the Tax Commissioner to the county commission as to the amount and the reasonableness thereof.

(c) The notice required to be mailed by the provisions of subsection (a) of this section shall be upon uniform forms prepared by the Tax Commissioner and shall be of simple and readily understandable language and design. The notice shall advise each property owner that (i) an additional opportunity and final period of review is being afforded to request a review of the appraised value of the real property before the county commission prior to the final implementation of such values for ad valorem tax purposes, (ii) that an application or request for such review must be filed with the county commission not later than September 2, 1986, (iii) that all property owners have a right to petition for review of the value placed upon such property irrespective of whether such owners had previously petitioned for review by the county commission which had finally determined such value or whether such review process was currently pending either before the county commission or upon certiorari before the circuit court as provided in section eighteen, article one-a of this chapter, (iv) that the information and data relied upon in making the appraisal and in fixing the value of such property is available in the office of the county assessor at no cost to the property owner or other interested persons, (v) that such owner may in his or her petition or at any hearing held thereon, in addition to those matters relative to the reappraisal, present such factors or circumstances as, in the judgment of the owner, may have resulted in either an increase or decrease in the value of the property in question since the appraisal, and (vi) the description of the property which shall include, but not be limited to, the acreage and general landbook description on the landbook. Such factors or circumstances may be taken into consideration by the county assessor or county commission in fixing the assessed value thereof for the tax year for which a lien attaches on July 1, 1987: Provided, That such factors shall have no bearing upon the issues involved in establishing the true value of such property as established by the appraisal. Such notice shall include the information hereinbefore required, and for notices affecting surface real property values, shall set forth at least the following information in the form shown or as near thereto as may be practicable:

"NOTICE

YOU ARE HEREBY NOTIFIED OF THE VALUE PLACED UPON YOUR PROPERTY WHICH IS IDENTIFIED BELOW. THIS VALUE RESULTS FROM THE REAPPRAISAL OF ALL PROPERTY SUBJECT TO PROPERTY TAX AS REQUIRED BY THE STATE CONSTITUTION.

COUNTY______________ DIST___________MAPPARCEL________SPID

PROPERTY LOCATION: (Including address)

DATE

TAX CLASS: ACCOUNT NO

NOTICE:

  OWNERS NAME

  MAILING ADDRESS

CITY, STATE, ZIP

DEAR PROPERTY OWNER,

IN COMPLIANCE WITH THE PROVISIONS OF THE WEST VIRGINIA STATE CONSTITUTION, ALL PROPERTY HAS BEEN REAPPRAISED BASED ON FAIR MARKET VALUE AS OF JULY, 1983.

STATE LAW REQUIRES THAT ALL ASSESSMENTS BE 60% OF FAIR MARKET VALUE AND THAT ANY INCREASES IN ASSESSMENTS BE PHASED-IN OVER A 10-YEAR PERIOD.

FOLLOWING ARE THE RESULTS OF THE REVALUATION AND THE ESTIMATED TAX IMPACT FOR THE PROPERTY LISTED ABOVE.

YOUR PROPERTY'S 1983

 MARKET/VALUE . = $ ______

X60%

 ASSESSMENT VALUE = $ ______

 LESS YOUR CURRENT

 ASSESSED VALUE = $ ______

 DIFFERENCE IN VALUE = $ ______

ASSUMING THE TAX RATES IN YOUR COUNTY DO NOT CHANGE AND ALSO ASSUMING THAT THERE HAVE BEEN NO CHANGES IN YOUR PROPERTY SINCE 1983, YOUR CURRENT ASSESSED VALUE OF $______ WILL BE INCREASED TO $______ FOR THE YEAR______ AND WILL BE INCREASED $______ EACH YEAR THEREAFTER FOR A TOTAL PERIOD OF TEN YEARS. BASED ON CURRENT ASSESSMENTS YOUR TAX FOR THE NEXT YEAR WILL BE $______. IF YOUR ASSESSOR DETERMINES THAT YOUR PROPERTY HAS THE SAME VALUATION AS IN 1983, AND THAT THE LEVY RATES REMAIN THE SAME, THEN IN THAT EVENT YOUR TAX THE TENTH YEAR WILL BE $______. THE VALUES, ASSESSMENTS AND AMOUNT OF TAXES SHOWN ABOVE DO NOT INCLUDE OR TAKE INTO ACCOUNT ANY CREDIT FOR THE HOMESTEAD EXEMPTION. IF YOU ARE ELIGIBLE FOR THE HOMESTEAD EXEMPTION, NEXT YEAR'S PROPERTY TAX SHOULD BE REDUCED OR ELIMINATED.

THE VALUES SHOWN ABOVE DO NOT INCLUDE OR REFLECT ANY INCREASES OR DECREASES IN VALUE BECAUSE OF REPLACEMENT, ADDITIONS OR OTHER FACTORS OR CIRCUMSTANCES OCCURRING SINCE 1983.

IF YOU DISAGREE WITH THE VALUE PLACED UPON THE ABOVE DESCRIBED PROPERTY OR IF YOU BELIEVE CHANGES HAVE OCCURRED IN SUCH PROPERTY SINCE 1983 WHICH WOULD IN YOUR OPINION REDUCE THE VALUE OF YOUR PROPERTY, THEN YOU SHOULD PETITION THE COUNTY COMMISSION FOR REVIEW."

(d) In addition to any other notice required to be given to property owners by any provisions of this article, the sheriff shall give or provide a notice which shall advise the property owners of the fact that the right to petition for review of the value will expire on September 2, 1986, that such petition must be filed or presented to the county commission on or before that date, and that no such petition shall be received thereafter. Such notice shall be included as a separate document within the same envelope in which tax tickets are mailed, or be delivered with such tax tickets to property owners pursuant to section eight, article one, chapter eleven-a of this code.

(e) The fact that an owner failed to receive any notice pursuant to the provisions of this article shall not affect the right of the property owner to petition for review within the time prescribed, and shall not extend the period by or during which any such petition is permitted to be filed, as provided by this article, nor serve to toll the time by which any such petition is required to be filed, nor invalidate any value otherwise correct: Provided, That nothing herein shall be construed to limit the rights and remedies provided in article three, chapter eleven: Provided, however, That the failure to receive notice shall give rise to review under section twenty-four, article three of chapter eleven.

(f) The sheriff, assessor, clerk of the county commission and all other county officers shall cooperate and assist the Tax Commissioner in locating and ascertaining proper, correct and current addresses of all owners of property subject to ad valorem taxes in order that the mailing of the notices required by the provisions of this section or of any other provision of this article may achieve the greatest degree of proficient and accurate delivery.

(g) Nothing in this article shall be construed to diminish to any extent any responsibility on the part of any property owner or taxpayer to see to the proper, accurate and timely return of any property required to be returned or to see that any such property is assessed and taxed according to law and to the extent provided by law.

§11-1B-7. Additional newspaper, radio and television advertising required.

(a) In addition to the legal advertisement required by section five of this article and the notice requirements of section six of this article, the Tax Commissioner shall cause retail display advertisements, as opposed to and other than legal and classified advertisements, to be published in every newspaper of general circulation within each county of this state which shall generally and plainly inform the property owners and taxpayers of each county that the period to file their petition for review of the appraised value of their property for ad valorem property tax purposes expires on September 2, 1986 and that such petitions must be filed with the county commission on or before that date. Such advertisements shall be of a size sufficient to be readily visible and apparent to the readers of such newspaper and shall be at least fifteen column inches or its equivalent and shall appear in each such newspaper in some portion thereof other than that portion devoted to legal and classified advertising. The Tax Commissioner shall solicit the running of such advertisement as a public service or at a reduced cost, but, in any event, the cost of all such advertising shall be paid for by the State Tax Commissioner. Such advertisements shall be run at least three times between July 1, 1986 and August 20, of said year, but not more often than once per week during such period, and shall be run a fourth and final time no earlier than August 30, or, in the case of weekly newspapers, the edition next preceding that date. Further, the commissioner shall provide news stories to be carried and asked to be published which would inform the public of the matters required to be advertised and of which notice is required to be given by this article.

(b) In addition to the advertisement required by section six of this article and subsection (a) of this section, the Tax Commissioner shall arrange for radio and television advertisements to be carried by a sufficient number of stations to assure statewide coverage, which advertisements shall be designed to plainly inform the public that the period during which property owners and taxpayers are permitted to petition for review of the appraised value of their property for ad valorem property tax purposes expires on September 2, 1986, and that such petitions must be filed with the county commission on or before that date. Such advertisements shall likewise be broadcast at least three times between July 1, 1986 and August 20, of said year and shall, if possible to arrange, be broadcast as public service advertisements, and, in any event, shall be broadcast at such hours or times calculated to maximize their exposure to the viewing and listening public. To the extent that the Tax Commissioner cannot arrange for such advertisements to be broadcast as public service advertisements, the cost shall be paid for by the Tax Commissioner.

(c) The paid advertisements required to be seen or broadcast by the provisions of this section shall not include the name of the Tax Commissioner or of any other public official or employee, whether elected or appointed, and such person may be referred to in such advertisements, if at all, by their title or office only.

(d) Failure of any newspaper, radio and television advertising to be published or broadcast as provided by subsections (a) or (b) shall not invalidate or impair the additional review of property appraisals provided for by this article.

§11-1B-8. Review by county commission; petition therefore; hearing; decision.

(a) Not later than September 2, 1986, the owner of any assessed property may petition for review of the appraised value of his or her property. Such petition shall be filed with the county commission of the county wherein such property or the greater portion thereof is situate. No hearing shall be held with respect to any such petition filed or received by the county commission after the date hereinabove specified or which has not been deposited in the regular course of the United States mail, postage prepaid, and properly addressed to the county commission on or before such date. Such county commission shall forthwith mail or deliver at least weekly true copies of all such petitions to the Tax Commissioner and to the county assessor which shall reflect the date of filing.

(b) The State Tax Commissioner shall devise and make available a form which may be used as a petition by any owner or taxpayer seeking review of the appraised value of any such property. The petition shall set forth the name of the petitioner, the address or identification of the property in question, preferably reflected upon the most recent tax ticket, and the county and district wherein such property is located and shall state in general terms all matters of or to which the owner or owners take exception or believe to be in error with respect to the proposed appraised value of such property and such other matters as the owner or petitioner deems necessary to inform the county commission and the parties of the nature of such owner's complaint. The owner may also petition with respect to and raise at any time any issue, fact or circumstance which has occurred with respect to the subject property since 1983. The petitioner may use such form as provided by the Tax Commissioner or may use his or her own petition which need not be in any specific form so long as the nature of the complaint and request for review can be ascertained. Such forms as are prepared by the Tax Commissioner shall be made available at the offices of the county commission, the county clerk, the assessor and the sheriff and at such other places in the community as the Tax Commissioner may deem appropriate and may be included in or with the notice required by section six of this article.

(c) The county commission shall sit as an administrative appraisal review board as required by the provisions of section seventeen, article one-a of this chapter in review of the appraised value of the property in question. In so doing, the county commission shall hear such testimony under oath, and receive such other evidence as the county commission may deem pertinent, as the owner, the Tax Commissioner or other interested person may offer, including the assessor, and shall make a true record of the hearing and evidence presented by nonstenographic electronic recording or other device which will assure that the recorded testimony will be accurately preserved. The county commission shall also receive evidence of any substitutions, accretions, improvements, additions, replacements, destructions, removals, casualties, acts of God, waste or any like occurrences or any similar factors or occurrences which have caused or resulted in any change in value of any property subject to reappraisal for use by the assessor and the county commission in fixing values for 1987. Copies or transcriptions of the records shall be available at the request of any of the parties who shall bear the cost thereof. The provisions of subsections (b), (c) and (d) of said section seventeen, article one-a shall apply to hearings held pursuant to this article, except to the extent the same are in direct conflict with the provisions of this article.

(d) Any other provision of present law to the contrary notwithstanding, the prosecuting attorney of the county shall serve in the capacity of law advisor only to the county commission when called upon by the county commission to assist it with respect to questions of law of which they may be concerned in any hearing held pursuant to this article and shall not represent the Tax Commissioner in any capacity with respect to any such hearing.

(e) Any other provision of present law to the contrary notwithstanding, the Tax Commissioner may, at his request, be represented in any proceeding under either article one-a or one-b of this chapter by the Attorney General, by an attorney permanently or temporarily employed by the Tax Commissioner, or by an attorney with whom the Tax Commissioner has contracted for such service.

(f) The Tax Commissioner shall be a party to every hearing held pursuant to this article and it shall be his duty in such capacity to see to the equal and uniform taxation of all species, types, items and parcels of property subject to ad valorem taxation.

(g) Upon making such true record and preserving as part of the record the other evidence presented, the county commission shall determine whether the amount of value fixed by the appraisal of the property is correct under the circumstances. If the county commission finds the appraisal to be correct it shall enter an order approving the value as appraised and adopting by reference the determination and information provided by the Tax Commissioner. If the county commission determines that the amount of value fixed by the appraisal of the property is incorrect, and if sufficient evidence has been presented to permit correction of the appraisal, the county commission shall correct the appraisal and fix the value of the appraised property. If the county commission shall find that the evidence is not sufficient to determine the correct value, the county commission shall direct the parties to develop and present such additional evidence as may be necessary and may continue the hearing to a date and time, not to exceed ten days, for the purpose of receiving such evidence sufficient to fix the true and correct appraised value. If either of the parties need more time in which to further develop or prepare such additional evidence then, upon so informing the other party or parties and the county commission, a further period of time, not to exceed an additional period of ten days, shall be granted for that purpose. Upon making its determination as to the true and correct appraised value, the county commission shall enter its order establishing such value, which order shall include the commission's findings and its reason or reasons therefor, and shall forward a true copy of such order to all the parties. The county commission shall transmit to the assessor those circumstances and matters which would cause a change in the value of any property for such use as may be appropriate in fixing assessed value in 1987. Such matters shall include, but not be limited to, those situations or circumstances required to be received by the county commission pursuant to subsection (c) of this section.

(h) Any owner whose property has been the subject of review to determine the proper value thereof pursuant to this article or article one-a of this chapter shall not be precluded from pursuing or exercising any other right or procedure, or appearing before any forum for the purpose of fixing the value of property for ad valorem tax purposes, and for that purpose neither the provisions of this article or of article one-a of this chapter shall be deemed to afford remedies which are severally or jointly exclusive.

§11-1B-9. Agreements by owner, Tax Commissioner and assessor; stipulations; agreed values to be used as appraised values.

(a) At any time prior to the rendering of a decision by the county commission pursuant to section eight of this article, if the Tax Commissioner concludes that the appraised value of any property is incorrect or improper because of a clerical error or error of fact or mistake occasioned by inadvertence or an unintentional act as distinguished from errors or mistakes resulting from the exercise of judgment, the Tax Commissioner may correct such error or mistake and give notice thereof to the property owner, the appropriate assessor, county commission and sheriff of the county wherein the property is assessed for ad valorem tax purposes.

(b) If after receipt of the copy of the owner's petition for review before the county commission, the Tax Commissioner determines that the facts set forth by the property owners in his or her petition are correct, the Tax Commissioner may modify such value accordingly. The commissioner shall notify the owner or owners of his or her action as well as the appropriate assessor, county commission and sheriff, and in such notice shall include a new appraised value. If the owner agrees to such new appraised value he or she shall so notify the Tax Commissioner and the county commission. The county commission shall enter its order adopting such value as the appraised value of the property for ad valorem tax purposes. If the owner further objects to the new appraised value arrived at by the Tax Commissioner, he or she shall forthwith so inform the Tax Commissioner and the county commission, setting forth his or her reasons therefor, and the matter shall proceed to final conclusion as provided for in section eight of this article.

(c) Nothing in this section shall prevent the owners, the Tax Commissioner, any intervenors, the assessor or any of them from stipulating any issue or issues included in the review, nor shall any provision of this article or other provision of law prevent such parties from agreeing upon a settlement of the matters and jointly recommending to the county commission such agreements and stipulations which may be accepted or rejected by the county commission. If accepted, such agreements or stipulations shall be entered by the county commission in the manner provided in subsection (d) of this section. If the county commission rejects the agreement it shall so inform the parties and proceed with the hearing.

(d) Any agreement reached or stipulation agreed upon pursuant to this section or authorized thereby shall be presented by the parties in open hearing before the county commission or be filed with the county commission in writing to be jointly agreed upon by the parties and to be made available for public inspection. Such presentation or writing shall include the reasons or rationale for the agreement or stipulation, and the county commission shall set forth the same in brief form in any order ratifying or confirming the same. Any agreement reached or stipulation agreed upon which shall have the direct effect of fixing the value of any property shall not be entered or accepted by the county commission and entered of record as finally fixing such value until a period of five days shall have elapsed since the day of presentation, nor shall the same be the subject of objection thereafter.

§11-1B-10. Property tax appraisement consultants; assignment; duties; recommendations to Tax Commissioner.

As soon as may be practicable after the effective date of this section, the Tax Commissioner may employ four persons as public property tax appraisement consultants to be of assistance to the public and available to it. The Tax Commissioner may assign such persons to any county or area of the state in which their assistance is required. Such consultants shall provide information, guidance, assistance and instructions to any residential, farm or other noncommercial owner or taxpayer regarding real estate and personal property tax appraisement matters. For this purpose, the consultant is authorized (i) to examine and review the records of the assessor, the sheriff and the Tax Commissioner upon request, (ii) to investigate matters of complaint by such residential owners or taxpayers who request his or her assistance, (iii) to make reports and recommendations to the Tax Commissioner with respect to any pertinent information or proposed corrections for consideration by the Tax Commissioner in arriving at the true and correct value of such property as hereinafter provided, and (iv) to act with respect to such other matters as may be of assistance to any such residential owners or taxpayers in understanding and resolving issues concerning such value. Such persons shall be individuals who are experienced in dealing with the public in a congenial and courteous manner and who are knowledgeable with property and property values in the area in which he or she serves.

If at any time the Tax Commissioner determines, based upon, or as a result of, reports of or consultations with the consultants, that a modification or adjustment of the appraised value of any property is indicated, the Tax Commissioner shall so notify the taxpayer, consultant and assessor of the proposed modification or adjustment. If the residential owner shall agree to the proposed modification or adjustment, the Tax Commissioner shall modify or adjust the value accordingly. If the Tax Commissioner disagrees with the recommendations or reports of the consultant, he or she shall immediately so notify the owner and consultant of that fact, and the matter shall be resolved as otherwise provided in this article.

§11-1B-11. The right of other property owners or assessor to petition for review or intervene.

(a) Any person who is a taxpayer of ad valorem property taxes in any West Virginia county may protest an appraisal of property under this article for good cause alleged and shown. A person desiring to protest an appraisal of property shall petition for a hearing before the county commission in the same manner as an owner would petition for review and hearing with regard to the appraisal of his property as provided in this article: Provided, That a petition for protest must be filed with the county commission no later than September 2, 1986. The hearing of a protest shall be governed by the same procedures described for hearings before the county commission in section eight of this article and notice of such shall be given as required by subsection (d) of this section.

(b) Upon a showing of good cause, any person who is a taxpayer of ad valorem property taxes in any West Virginia county may be permitted to intervene by petition in writing in the hearing provided for in this section.

(c) In the event any person shall petition for review of or protest to the appraisal value of or given to the property of another, or, in the event of intervention pursuant to this section, the owner of such property shall be given all rights afforded by this article, including the right to protection for review by cross petition or otherwise, to the same extent as if the owner had appealed or petitioned timely in the first instance.

(d) Any petition filed pursuant to subsection (a) or (b) of this section shall be filed in writing and shall set forth the objections of the petitioner or intervenor to the appraisal in question or at issue. A copy of such petition shall be served upon, mailed to or delivered to the property owner and the Tax Commissioner, and there shall be appended thereto the certificate of the petitioner or intervenor or of his or her attorney stating that true copies of such petition have been served upon or mailed or delivered to such property owner and Tax Commissioner no later than the same date upon which such copies were so mailed, delivered or served.

§11-1B-12. Time of decision by county commission.

All review hearings conducted by county commissions sitting for the purposes of this article shall be completed and determinations rendered thereon by December 1, 1986. The county commissioner may consolidate hearings and reviews in order to avoid duplication and unnecessary repetition where the same or similar facts or issues are in dispute.

§11-1B-13. Duty of assessor to assist county commission; inventory of flood damaged property.

(a) The county commission, sitting in review of appraisals pursuant to this article, may require the assistance of the county assessor in making its determinations under this article. Further, the assessor shall be competent to testify as to values of property generally or as to the value of a specific item or property when called upon to do so by either of the parties or the county commission.

(b) It shall be the additional duty of the assessor in the counties of Barbour, Berkeley, Braxton, Calhoun, Doddridge, Gilmer, Grant, Greenbrier, Hampshire, Hardy, Harrison, Jefferson, Lewis, Marion, Mineral, Monongalia, Monroe, Morgan, Nicholas, Pendleton, Pocahontas, Preston, Randolph, Summers, Taylor, Tucker, Tyler, Upshur and Webster to prepare an inventory of all property damaged as a result of the flood which occurred in those counties during the month of November, 1985 to the extent of damage thereto, which shall be noted for such use as maybe proper with respect to any future assessments of any such property.

§11-1B-14. Review by circuit court on certiorari.

Within thirty days after the day the county commission notifies the parties of a final determination of value made pursuant to section eight of this article, the owner, Tax Commissioner, protestor or intervenor may request the county commission to certify the evidence and remove and return the record to the circuit court of the county on a writ of certiorari instituted in accordance with the provisions of article three, chapter fifty-three of this code. For purposes of this article, the recorded testimony of the hearing, when certified by the county commission may be used by the circuit court as the transcript of testimony. If the petition for review be made by the Tax Commissioner or the assessor as to two or more separate items or parcels of property and for separate property owners, all such matters may be included within one petition if each separate owner is notified thereof and given opportunity to respond thereto. Except to the extent the same is in direct conflict with the provisions of this section, the provisions of section eighteen, article one-a of this chapter shall govern reviews by circuit courts of any proceedings brought under this article.

§11-1B-15. Right of Tax Commissioner, assessor or property owner to review of newly discovered matters; limitations.

(a) The Tax Commissioner, the assessor or any property owner at any time after September 2, 1986, and before October 1, of said year shall have the right to petition the county commission to reopen and review in accordance with the provisions of this article. In the event the Tax Commissioner or assessor so petitions the county commission, the owner of the property shall forthwith be notified of the petition by mailing or delivering a true copy thereof to such owner. Similarly, if the owner petitions the county commission in accordance herewith, he or she shall likewise notify the Tax Commissioner and the assessor of that fact. It shall be the affirmative burden of the petitioning party to clearly show that the matters raised in the petition were newly discovered since September 1, 1986, and were theretofore unknown to the parties so petitioning.

(b) The assessor shall petition the county commission to adjust the appraised value of any parcel where that value appears to be clearly in error or based upon inconsistencies in valuation procedures, trends in valuation, clerical errors or other cause. Notice of any petition filed by the assessor shall be given to any affected owner and the Tax Commissioner. A hearing held pursuant to such petition shall be governed by the same procedures described for review and hearings as provided for in section eight of this article.

(c) In the event the Tax Commissioner or assessor changes the base year value of property as a result of matters discovered subsequent to October 1, 1986, the owner of the property shall forthwith be notified of the change by mailing or delivering a notice thereof to such owner. The owner has forty-five days from the date on the notification to file an objection in writing with the county commission. The county commission may only hear and determine the matter when meeting after the year 1987 for the purpose of reviewing and equalizing in accordance with section twenty-four, article three of this chapter.

§11-1B-16. Reimbursement of costs to assessor and sheriff.

Except for the mailing required by subsection (c) of section six of this article, the assessor and sheriff shall be reimbursed by the Tax Commissioner for the postage expended by either of them to mail any notices required to be mailed by such assessor or sheriff by this article. Such forms and envelopes as may be required shall be furnished by the Tax Commissioner.

§11-1B-17. Report by county commission required; reports to Legislature.

The county commission shall make a report to the Tax Commissioner on or before June 30, 1987, of the number of hearings held by it in review of any and all appraisals and any adjustments in valuation made by the county commission. The Tax Commissioner shall provide a summary of such reports to the President of the Senate and the Speaker of the House of Delegates on or before July 15, 1987.

§11-1B-18. Appraisal of property; date of implementation; assessor to make assessments.

(a) All property as defined in section three of this article shall be appraised at its true and actual value as that term is defined in subsection (i), section three, article one-a of this chapter.

(b) County commissions shall proceed in a timely manner to hold the review hearings and issue determinations in accordance with the provisions of this article and the guidelines and regulations of the Tax Commissioner. If all hearings have not been held, or completed, or determinations thereon have not been issued, by June 1, 1987, the Tax Commissioner shall deem the values appealed from, and the results thereof, substantially correct and the review procedures substantially complied with, for purposes of subsection (c) of this section. In such instances, the county commission shall proceed to hold review hearings and issue determinations in accordance with the provisions of this article and the guidelines and regulations of the Tax Commissioner, and shall complete all hearings and issue all determinations on or before August 1, 1987, at which time it is the duty of the county commissions to have all hearings held and completed, all determinations issued, and the results thereof reported to the Tax Commissioner.

(c) Upon completion of the review procedures provided in this article, and after certification by the Tax Commissioner to the Governor, President of the Senate and Speaker of the House of Delegates that, with the exception of those matters pending under subsection (b) of this section or in the circuit courts of this state or on appeal to the Supreme Court of Appeals, said review procedures have been substantially complied with and further that the results thereof are substantially correct, the final valuations arrived at, by, and through the appraisal process to establish value of all property for the year 1983, as provided for in article one-a of this chapter and by this article, shall be and the same are hereby directed to be used for ad valorem property taxation in the year for which lien would attach on July 1, 1987. Such valuations shall be adjusted and maintained by the assessor in accordance with regulations governing the appraisal of property for property tax purposes and instructions provided by the State Tax Commissioner to reflect consideration of such substitutions, alterations, accretions, improvements, additions, replacements, destructions, removals, casualties, acts of God, waste or like occurrences or circumstances, as well as economic and other factors which result in or cause an increase or decrease in the value of any such property or any other divisions, redivision or other change in such property since its reappraisal for the year 1983.

In the implementation of such values, the assessor of each of the several counties shall assess the property subject to ad valorem taxation (other than public utility property) in the manner and subject to the procedures for return, assessment, equalization and review heretofore provided in this code, at sixty percent of the market value less such exemptions and allowance for phase-in which may be applicable.

With respect to property, the market value of which has changed since the reappraisal, the assessor shall enter on the computer network provided for by section twenty-one, article one-a of this chapter, the basis of any change in value utilized in such assessment.

With respect to property not subject to reappraisal at the time of the reappraisal, or property on which improvements have been made, the assessor shall use as a basis for phase-in of the reappraisal, the statewide phase-in rate promulgated by the Tax Commissioner for like property.

(d) The Tax Commissioner shall be provided by the assessor with any information, findings, or reasons relied upon by the assessor in increasing or decreasing values as a result of economic or other factors if applied by the assessor to any species or class of property generally or uniformly.

§11-1B-19. Extending the period for hearings in certain cases; limitations; extending period of final determination of certain cases; validation of certain determinations; duty of assessor and Tax Commissioner with respect to certain overvalued or undervalued property; construction of section.

(a) The provisions of section twelve of this article or of any other provision of this article to the contrary notwithstanding, the period during which the final determination by the county commission in any matter upon or in which a petition for review of the appraised value of any taxable property was timely filed under the provisions of either section eight or fifteen of this article or any other provision thereof, was to be finally determined is hereby extended to and through June 1, 1987. The time period during which hearings may be conducted with respect to any such timely-filed petitions for review is hereby extended until and through May 1, 1987, with respect to those matters in which hearings have not been previously concluded prior to the effective date of this section. Further, in any such matter in which the petition for review had been filed timely and in which either the hearing or the final determination or both was held or shall be made after December 1, 1986, such determination shall nonetheless be deemed timely heard or determined for all intents and purposes, including, but not limited to, the intents and purposes of this article.

(b) After the final determination of values has been made in accordance with the provision of subsection (a) of this section and the results certified for use in the tax year for which the ad valorem tax lien attaches on July 1, 1987, the assessor and the Tax Commissioner shall review the list of all property subject to ad valorem taxation (and it shall be the joint, several and coexisting duty of the assessor and the Tax Commissioner so to do) for the purpose of ascertaining, identifying and listing any and all items of such property which are obviously grossly or significantly overvalued or undervalued; which list, together with their recommendation as to the true and actual value of each such item of such property, shall be certified to the county commission not later than January 4, 1988, for the use and consideration of the respective boards of equalization and review in February of that year. The assessor shall be reimbursed by the state Tax Department in an amount not to exceed seventy-five percent of the costs and expenses incurred by the assessor in the review of such lists and the preparation and certification of such report to the board of equalization and review: Provided, That prior approval of the Tax Commissioner is obtained in advance of the incurring of such costs or expenses. The percentage of reimbursement as to each assessor shall be of a uniform amount as to all assessors.

(c) The provisions of section fourteen of this article shall apply to any matter decided or validated pursuant to this section, as shall the provisions of section eighteen, article one-a of this chapter, to the extent the same are not in conflict with this section.

(d) All other provisions of this article enacted by the Legislature, at the first extraordinary session of 1986 which are not in conflict with this section shall apply to all matters, circumstances and situations which may be subject to this article, and to the extent of any such conflict, the provisions of this section shall apply.

§11-1C-1. Legislative findings.

(a) The Legislature hereby finds and declares that all property in this state should be fairly and equitably valued wherever it is situated so that all citizens will be treated fairly and no individual species or class of property will be overvalued or undervalued in relation to all other similar property within each county and throughout the state.

(b) The Legislature by this article seeks to create a method to establish and maintain fair and equitable values for all property. The Legislature does not intend by this article to implement the reappraisal as conducted under articles one-a and one-b of this chapter nor does it intend to affect tax revenue in any manner.

(c) The Legislature finds that requiring the valuation of property to occur in three-year cycles with an annual adjustment of assessments as to those properties for which a change in value is discovered shall not violate the equal and uniform provision of section one, article ten of the West Virginia Constitution, the Legislature further finding that such three-year cycle and annual adjustment are an integral and indispensable part of a systematic review of all properties in order to achieve equality of assessed valuation within and among the counties of this state. Notwithstanding such finding, the Legislature intends to permit the assessors and the board of public works to place proportionately uniform percentage changes in values on the books during the two tax years preceding the tax year beginning on July 1, 1993, in accordance with the provisions of section seven of this article.

(d) The Legislature deems that the goal of this article is that by the end of the three-year cycle contemplated by this article, and thereafter from year to year, all property shall be annually assessed at sixty percent of its then current fair market value except for the values derived for farms and managed timberland properties, which are to be valued as prescribed by this article one-c and article four of this chapter.

§11-1C-1a. Further legislative findings and declarations; effect of declarations and clarification of chattel interests in real or tangible personal property.

(a) The Legislature hereby finds that:

(1) The voters of this state, in the general election held in the year one thousand nine hundred eighty-four, ratified amendment five to the Constitution of West Virginia which essentially provides that once the first statewide reappraisal of property pursuant to section one-b, article ten of the Constitution is implemented and first employed to fix values for ad valorem property tax purposes, no intangible personal property shall be subject to ad valorem property taxation except as provided by general law enacted after ratification of amendment five;

(2) In ratifying amendment five, the voters intended for intangible personal property to become exempt from ad valorem property tax at some point after ratification, except as provided in general legislation enacted subsequent to ratification of amendment five;

(3) Due to numerous problems, actual or perceived, with the results of the first statewide reappraisal under section one-b, article ten of the Constitution, and the public's lack of confidence in those results, the first statewide reappraisal was never implemented and results were never employed to fix values for ad valorem property tax purposes;

(4) The Legislature responded to these problems, actual or perceived, by enacting this article which, as its primary purpose, resulted in the making of the second statewide reappraisal of property for ad valorem property tax purposes, which now results in all property being assessed and taxed at sixty percent of its market value, except as otherwise provided by general law; and

(5) The intent and objective of the voters in causing the first statewide reappraisal to be made under section one-b, article ten of the Constitution, has now been achieved, although not in the manner originally intended by the voters when they ratified amendment five, and that the will and objective of the people in ratifying amendment five will unintentionally be circumvented unless the Legislature acts to prevent such a result.

(b) The Legislature, therefore, does hereby declare that:

(1) It has the power and authority under the Constitution and these circumstances to implement amendment five;

(2) The provisions of amendment five shall be implemented beginning tax year one thousand nine hundred ninety-eight and thereafter, notwithstanding any other provision in this article other than section one-b;

(3) Chattel interests in real or tangible personal property are tangible property for ad valorem property tax purposes, which shall be assessed and taxed in the levy classification in which tangible personal property is taxed for ad valorem property tax purposes, notwithstanding any other provision in this chapter; and

(4) The property of banks and savings and loans shall be assessed and taxed like that of other corporations beginning tax year one thousand nine hundred ninety-eight.

§11-1C-1b. Phase-out of taxation of intangible personal property.

Notwithstanding anything in this code to the contrary, intangible personal property with tax situs in this state that would have been taxable prior to the effective date of this act shall be exempt from ad valorem property tax beginning tax year one thousand nine hundred ninety-eight: Provided, That such property shall be subject to ad valorem property tax and taxed at fifty percent of assessed value for tax year one thousand nine hundred ninety-eight; at forty percent of assessed value for the tax year one thousand nine hundred ninety-nine; at thirty percent of assessed value for the tax year two thousand; at twenty percent of the assessed value for the tax year two thousand one; at ten percent of the assessed value for the tax year two thousand two and eliminated completely for the tax year two thousand three and thereafter.

§11-1C-2. Definitions.

For the purposes of this article, the following words shall have the meanings hereafter ascribed to them unless the context clearly indicates otherwise:

(a) “Timberland” means any surface real property except farm woodlots of not less than ten contiguous acres which is primarily in forest and which, in consideration of their size, has sufficient numbers of commercially valuable species of trees to constitute at least forty percent normal stocking of forest trees which are well distributed over the growing site.

(b) “Managed timberland” means surface real property, except farm woodlots, of not less than ten contiguous acres which is devoted primarily to forest use and which, in consideration of their size, has sufficient numbers of commercially valuable species of trees to constitute at least forty percent normal stocking of forest trees which are well distributed over the growing site and that is managed pursuant to a plan provided for in section ten of this article: Provided, That any tract or parcel of real estate, regardless of its size, which is subject to contract, agreement, a deed restriction, deed covenant, or zoning regulation which limits the use of that real estate in a way that precludes the commercial production and harvesting of timber upon it may not be considered as managed timberland within the meaning of this article: Provided, however, That a landowner whose land is subject to, or may become subject to, a conservation or preservation easement may not be prevented from entering into a timberland management plan with the West Virginia Division of Forestry.

(c) “Tax Commissioner,” “commissioner” or “tax department” means the State Tax Commissioner or a designee of the State Tax Commissioner.

(d) “Valuation commission” or “commission” means the commission created in section three of this article.

(e) “County board of education” or “board” means the duly elected board of education of each county.

(f) “Farm woodlot” means that portion of a farm in timber but may not include land used primarily for the growing of timber for commercial purposes except that Christmas trees, or nursery stock and woodland products, such as nuts or fruits harvested for human consumption, shall be considered farm products and not timber products.

(g) “Owner” means the person who is possessed of the freehold, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust securing a debt or liability is deemed the owner until the mortgagee or trust takes possession, after which such mortgagee or trustee shall be deemed the owner. A person who has an equitable estate of freehold or is a purchaser of a freehold estate who is in possession before transfer of legal title is also deemed the owner.

(h) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.

(i) “Paper” means a tax map or document that is not electronic.

The definitions in subdivisions (f) and (g) of this section shall apply to tax years beginning on or after January 1, 2001.

§11-1C-3. Property valuation training and procedures commission generally; appointment; term of office; meetings; compensation.

(a) There is hereby created, under the Department of Tax and Revenue, a property valuation training and procedures commission which consists of the State Tax Commissioner, or a designee, who shall serve as chairperson of the commission, three county assessors, five citizens of the state, one of which shall be a certified appraiser, and two county commissioners. The assessors, five citizen members and two county commissioners shall be appointed by the Governor with the advice and consent of the Senate. For each assessor to be appointed, the West Virginia assessors association shall nominate three assessors, no more than two of whom shall belong to the same political party, and shall submit such list of nominees to the Governor. For each of the two county commissioners to be appointed, the county commissioner's association of West Virginia shall nominate three commissioners, no more than two of whom shall belong to the same political party, and shall submit such list of nominees to the Governor. Except for the Tax Commissioner, there may not be more than one member from any one county. No more than seven members of the commission shall belong to the same political party: Provided, That any member of the commission who is a direct party to any dispute before the board shall excuse himself or herself from any consideration or vote regarding the dispute. By November 1, 1990, the Governor shall appoint the fifth citizen member, who shall serve a two-year term.

(b) All members, except the Tax Commissioner, shall serve for four-year terms: Provided, That of the members initially appointed, two assessors, one county commission member and two citizens shall serve two-year terms, and one assessor, one county commissioner member and three citizen members shall serve four-year terms. Any assessor member and county commissioner member ceases to be a member immediately upon leaving the office of assessor or county commissioner. Members shall remain members of the commission until their successors have been appointed. In case of a vacancy occurring prior to the end of the term of a member, a replacement shall be appointed within thirty days in the same manner as the member was appointed and shall serve until the end of the term of the member so replaced.

(c) The Tax Commissioner shall call the first meeting of the commission within thirty days of the appointment of the assessor, county commissioner and citizen members. Subsequently, meetings shall be at the call of the chairperson or at the written request of any four members, except that the commission shall meet at least twice annually. Assessor members, county commissioner members and the Tax Commissioner shall serve without compensation, and citizen members shall receive $50 per day for each day of actual service rendered. All members shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties as members of the commission.

(d) The commission shall be funded by an appropriation by the Legislature through a separate line item appropriated to the State Tax Commissioner.

§11-1C-4. Commission powers and duties; rulemaking.

(a) On or before October 1, 1990, and thereafter as necessary the Property Valuation Training and Procedures Commission shall perform the following duties:

(1) Devise training and certification criteria for county assessors and their employees and members of county commissions, which shall include a definition of “appropriate staff member” as the term is used in section six of this article relating to required training, which definition shall include deputy assessors as provided for in section three, article two of this chapter;

 (2) Establish uniform, statewide procedures and methodologies for the mapping, visitation, identification and collection of information on the different species of property, which procedures and methodologies shall include reasonable requirements for visitation of property, including a requirement that a good faith effort be made to contact any owner of owner-occupied residential property: Provided, That the commission is not authorized to establish the methods to value real and personal property, but shall have the authority to approve such methods;

(3) Develop an outline of items to be included in the county property valuation plan required in section seven of this article, which shall include information to assist the Property Valuation Training and Procedures Commission in its determination of the distribution of state funds provided pursuant to section eight of this article.

(b) On or before July 1, 1991, the commission shall establish objective criteria for the evaluation of the performance of the duties of county assessors and the Tax Commissioner.

(c) In the event the Tax Commissioner and a county assessor cannot agree on the content of the plan required under section seven of this article, the commission shall examine the plan and the objections of the Tax Commissioner and shall resolve the dispute on or before the first day of the fiscal year following the fiscal year in which the plan was submitted to the commission for resolution.

(d) The commission may make such rules as it considers necessary to carry out the provisions of this section, which rules shall include procedures for the maintenance and use of paper and electronic tax maps but specifically excluding rules that relate to the sale, reproduction and distribution of the maps and associated data. Any rules adopted by the commission prior to October 1, 1990, under subsection (a) of this section are exempt from the provisions of article three, chapter twenty-nine-a of this code: Provided, That the commission shall file a copy of any rule so exempted from the provisions of chapter twenty-nine-a of this code with the Legislative Rule-Making Review Committee created pursuant to section eleven, article three of said chapter prior to November 30, 1990.

(e) The commission may make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this article.

(f) In order to fund the costs of the requirements of this article, the valuation commission may, on a one-time basis, borrow $5 million and distribute those funds according to need and the valuation plan submitted by the counties. Upon request of the valuation commission, the State Board of Investments shall loan, under commercially reasonable terms to be determined by the parties, up to $5 million to the valuation commission, on a one-time basis, from one of the various funds administered by the State Board of Investments.

(g) The commission shall be required, if the Tax Commissioner has failed to do so, to appoint one or more special assessors if it is the determination of the commission that an assessor has substantially failed to perform the duties required by sections seven and eight of this article. A writ of mandamus shall be the proper remedy if the commission fails to perform any of its duties required by law.

§11-1C-5. Tax Commissioner powers and duties.

(a) In addition to the powers and duties of the Tax Commissioner in other provisions of this article and this code, the Tax Commissioner shall have the power and duty to:

(1) Perform such duties and exercise such powers as may be necessary to accomplish the purposes of this article;

(2) Determine the methods of valuation for both real and personal property in accordance with the following:

(A) As to personal property, the Tax Commissioner shall provide a method to appraise each major specie of personal property in the state so that all such items of personal property are valued in the same manner no matter where situated in the state, shall transmit these methods to each county assessor who shall use these methods to value the various species of personal property. The Tax Commissioner shall periodically conduct such studies as are necessary to determine that such methods are being followed. Such method shall be in accordance with the provisions of article five of this chapter: Provided, That notwithstanding any other provision of this code to the contrary, the several county assessors shall appraise motor vehicles as follows: The State Tax Commissioner shall annually compile a schedule of automobile values based upon the lowest values shown in a nationally accepted used car guide, which said schedule shall be furnished to each assessor and shall be used by the several county assessors to determine the assessed value for all motor vehicles in an amount equal to sixty percent of said lowest values.

(B) As to managed timberland as defined in section two of this article, the Tax Commissioner shall provide a method to appraise such property in the state so that all such property is valued in the same manner no matter where it is situated in the state, which shall be a valuation based on its use and productive potential as managed timberland, which may be accorded special valuation as forestlands as authorized by section fifty-three, article six of the Constitution of West Virginia: Provided, That timberland that does not qualify for identification as managed timberland shall be valued at market value: Provided, however, That the Tax Commissioner may not implement any rules or regulations in title one hundred ten, which relate to valuation or classification of timberland: Provided further, That on or before October 1, 1990, the Tax Commissioner shall, in accordance with chapter twenty-nine-a of this code, promulgate new rules relating to the valuation and classification of timberland.

(C) As to farmland used, occupied and cultivated by an owner or bona fide tenant, the Tax Commissioner shall provide a method to appraise such property in the state so that all such property is valued in the same manner no matter where it is situated in the state, which valuation shall be arrived at according to the fair and reasonable value of the property for the purpose for which it is actually used regardless of what the value of the property would be if used for some other purpose, in accordance with section one, article three of this chapter and as authorized by subsection B, section one-b, article X of the Constitution of West Virginia.

(D) As to public utility property, the Tax Commissioner shall prescribe appropriate methods for the appraisal of the various types of property subject to taxation as public utilities and the types of property which are to be included in the operating property of a public utility and thereby not subject to taxation by the county assessor. Only parcels or other property, or portions thereof, which are an integral part of the public utility's function as a utility shall be included as operating property and assessed by the board of public works under provisions of article six of this chapter;

(3) Evaluate the performance of each assessor based upon the criteria established by the commission and each county's approved plan and take appropriate measures to require any assessor who does not meet these criteria or adequately carry out the provisions of the plan to correct any deficiencies. Such evaluation shall include the periodic review of the progress of each assessor in conducting the appraisals required in sections seven and nine of this article and in following the approved valuation plan. If the Tax Commissioner determines that an assessor has substantially failed to perform the duties required by said sections, the Tax Commissioner shall take all necessary steps, including the appointment of one or more special assessors in accordance with the provisions of section one, article three of this chapter, or utilize such other authority as the commissioner has over county assessors pursuant to other provisions of this code as may be necessary to complete the tasks and duties imposed by this article: Provided, That a writ of mandamus shall be the appropriate remedy if the Tax Commissioner fails to perform his or her statutory duty provided for in section five, article one of this chapter.

(4) Submit to the Legislature, on or before February 15 of each year, a preliminary statewide aggregate tax revenue projection and other information which shall assist the Legislature in its deliberations regarding county board of education levy rates pursuant to section six-f, article eight of this chapter, which information shall include any amount of reduction required by said section six-f;

(5) Maintain the valuations each year by making or causing to be made such surveys, examinations, audits and investigations of the value of the several classes of property in each county which should be listed and taxed under the several classifications; and

(6) Establish by uniform rules a procedure for the sale of computer generated material and appraisal manuals. Any funds received as a result of the sale of such reproductions shall be deposited to the appropriate account from which the payment for reproduction is made.

(b) The Tax Commissioner may adopt any regulation adopted prior to January 1, 1990, pursuant to article one-a of this chapter, which adoption shall not constitute an implementation of the statewide mass reappraisal of property. Such adoption, including context modifications made necessary by the enactment of this article, shall occur on or before July 1, 1991, through inclusion in the plan required by section ten of this article or inclusion in the minute record of the valuation commission. Upon the adoption of any such regulations, any modification or repeal of such regulation shall be in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§11-1C-5a. Rules.

After January 1, 1996, all rules proposed or promulgated by the Tax Commissioner regarding the valuation of real or personal property within the state shall be subject to review by the legislative rule-making review committee as provided in section eleven, article three, chapter twenty-nine-a of this code, and no such rules relating to the valuation of real or personal property within the state shall be promulgated as emergency legislative rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code.

§11-1C-5b.

Repealed.

Acts, 2014 1ES Sess., Ch. 5.

§11-1C-6. Required training for assessors, their staffs and county commissioners.

(a) All county assessors and their appropriate staff members are required to participate in a training program which meets the basic criteria set by the property valuation training and procedures commission. The Tax Commissioner shall provide the training programs, which shall commence on or before December 1, 1990. The Tax Commissioner shall determine which persons have met the basic criteria established by the property valuation training and procedures commission for certification in their respective positions. Those persons who have met the basic criteria shall be issued appropriate certificates so signifying. Those persons who have failed to meet the basic criteria shall be required to take additional training in those areas in which they are deficient. Any staff person employed as of the effective date of this section who fails to meet the basic criteria within one calendar year of his or her first training shall be placed on probationary status for six months and, upon continued failure to meet the criteria, shall be dismissed of any duties related to the actual valuation of property. Any staff person employed after the effective date of this section shall become certified within six months of his or her first training, and otherwise shall be placed on probationary status for six months and, unless becoming certified, shall be dismissed of any duties related to the actual valuation of property. The Tax Commissioner shall conduct periodic training sessions of a continuing education nature for all assessors and appropriate staff members whether certified or not. These sessions shall be held at least once a year. All newly elected or newly appointed assessors shall participate in a basic training program prior to taking office. Newly appointed appropriate staff members are required to participate in the next available basic training program. The commission shall further establish requirements for minimum continuing education for each appropriate staff member in order to maintain a certification.

(b) All county commissioners are required to participate in a training program which meets the criteria set by the property valuation training and procedures commission. The Tax Commissioner shall conduct such programs to educate county commissioners in their duties as a board of equalization and review and to make them generally familiar with appraisal techniques.

§11-1C-7. Duties of county assessors; property to be appraised at fair market value; exceptions; initial equalization; valuation plan.

(a) Except for property appraised by the State Tax Commissioner under section ten of this article and property appraised and assessed under article six of this chapter, all assessors shall, within three years of the approval of the county valuation plan required pursuant to this section, appraise all real and personal property in their jurisdiction at fair market value except for special valuation provided for farmland and managed timberland. They shall utilize the procedures and methodologies established by the Property Valuation Training and Procedures Commission and the valuation system established by the Tax Commissioner.

(b) In determining the fair market value of the property in their jurisdictions, assessors may use as an aid to valuation any information available on the character and values of such property, including, but not limited to, the updated information found on any statewide electronic data processing system network established pursuant to section twenty-one, article one-a of this chapter. Valuations may not be based exclusively on the statewide electronic data processing system network and usage of the information on the files as an aid to proper valuation does not constitute an implementation of the statewide mass reappraisal of property.

(c) Before beginning the valuation process, each assessor shall develop a county valuation plan for using information currently available, for checking its accuracy and for correcting any errors found. The plan must be submitted to the Tax Commissioner on or before December 1, 1990, for review and approval and the plan must be revised as necessary and resubmitted every three years thereafter. Whenever a plan is submitted to the Tax Commissioner, a copy shall also be submitted to the county commission of that county and the Property Valuation Training and Procedures Commission and that county commission and the Property Valuation Training and Procedures Commission may forward comments to the Tax Commissioner. The Tax Commissioner shall respond to any plan submitted or resubmitted within sixty days of its receipt. The valuation process shall not begin nor shall funds provided in section eight of this article be available until the plan has received approval by the Tax Commissioner: Provided, That any initial plan that has not received approval by the commissioner prior to May 1, 1991, shall be submitted on or by such date to the valuation commission for resolution prior to July 1, 1991, by which date all counties shall have an approved valuation plan in effect.

(d) Upon approval of the valuation plan, the assessor shall immediately begin implementation of the valuation process. Any change in value discovered subsequent to the certification of values by the assessor to the county commission, acting as the board of equalization and review, in any given year shall be placed upon the property books for the next certification of values: Provided, That notwithstanding any other provision of this code to the contrary, the Property Valuation Training and Procedures Commission may authorize the Tax Commissioner to approve a valuation plan and the Board of Public Works to submit such a plan which would permit the placement of proportionately uniform percentage changes in values on the books that estimate the percentage difference between the current assessed value and sixty percent of the fair market value for classes or identified subclasses of property and distribute the change between the two tax years preceding the tax year beginning on July 1, 1993. This procedure may be used in lieu of placing individual values on the books at sixty percent of value as discovered or may be in addition to the valuation. If this procedure is adopted by a county, then property whose reevaluation is the responsibility of the Board of Public Works and the state Tax Commissioner shall have its values estimated and placed on the books in like manner. The estimates shall be based on the best information obtained by the assessor, the Board of Public Works and the Tax Commissioner and the changes shall move those values substantially toward sixty percent of fair market value, such sixty percent to be reached on or before July 1, 1993.

(e) (1) The county assessor shall establish and maintain as official records of the county tax maps of the entire county drawn to scale or aerial maps, which maps shall indicate all property and lot lines, set forth dimensions or areas, indicate whether the land is improved and identify the respective parcels or lots by a system of numbers or symbols and numbers, whereby the ownership of such parcels and lots can be ascertained by reference to the appropriate records: Provided, That all such records shall be established and maintained in accordance with legislative rules promulgated by the commission.

(2) The paper and electronic tax maps including mineral boundary maps shall be made available for sale by the assessor and the map sales unit of the Property Tax Division of the Department of Revenue. In connection with these sales the assessor and map sales unit of the Property Tax Division of the Department of Revenue shall offer the electronic tax maps in all available formats and with all underlying map data including that necessary to tie electronic parcel data to associated land book ownership and related data.  Sales of paper and electronic tax maps shall be without limitation as to the reproduction or disclosure of information contained therein or thereon by the purchaser.  The fees charged for the sale or reproduction of paper and electronic tax maps by the assessor or the map sales unit of the Property Tax Division of the Department of Revenue shall be limited to those reasonably calculated to reimburse it for its actual cost in making reproductions of the records (i.e., the charge shall be no more than what is reasonable for disclosure of the information under a Freedom of Information Act request under article one, chapter twenty-nine-b of this code).  Tax maps are prepared for taxation purposes only and the assessor and map sales unit of the Property Tax Division of the Department of Revenue may have no liability to any third party for any errors or omissions associated therewith or in connection with the use of tax maps for any other purpose.

(f) Willing and knowing refusal of the assessor or the county commission to comply with and effect the provisions of this article, or to correct any deficiencies as may be ordered by the Tax Commissioner with the concurrence of the valuation commission under any authority granted pursuant to this article or other provisions of this code, are grounds for removal from office. A removal may be appealed to the circuit court.

§11-1C-8. Additional funding for assessors' offices; maintenance funding.

(a) In order to finance the extra costs associated with the valuation and training mandated by this article, there is hereby created a revolving valuation fund in each county which shall be used exclusively to fund the assessor's office. No persons whose salary is payable from the valuation fund shall be hired under this section without the approval of the valuation commission, the hirings shall be without regard to political favor or affiliation, and the persons hired under this section are subject to the provisions of the ethics act in chapter six-b of this code, including, but not limited to, the conflict of interest provisions under chapter six-b of this code. Notwithstanding any other provisions of this code to the contrary, assessors may employ citizens of any West Virginia county for the purpose of performing, assessing and appraising duties under this chapter upon approval of the employment by the valuation commission.

(b) During the fiscal year commencing July 1, 1994, and thereafter as necessary, any county receiving moneys provided by the valuation commission under this section shall use the county's valuation fund receipts which exceed the total amount received in the fiscal year ending June 30, 1994, and such other portion of the county's valuation fund receipts that may be required by the valuation commission, to repay the valuation commission the money received plus accrued interest: Provided, That the fund should not drop below one percent of the total municipal, county commission and county school board revenues generated by application of the respective regular levy rates.

(c) (1) To finance the ongoing extra costs associated with the valuation and training mandated by this article, beginning with the fiscal year commencing on July 1,1991, and for a period of at least three consecutive years, an amount equal to two percent of the previous year's projected tax collections, or whatever percent is approved by the valuation commission, from the regular levy set by, or for, the county commission, the county school board and any municipality in the county shall be prorated as to each levying body, set aside and placed in the valuation fund. In May of each year the sheriff of each county shall make a final transfer to the assessor's valuation fund which will reflect any difference in the amount of actual collections in the previous fiscal year as opposed to those previously projected by the chief inspector's office as the basis for the contributions to the valuation fund, to bring the total transfers for that year to two percent of the previous year's actual collections. The two-percent payment shall continue in any county where funds borrowed from the state pursuant to subsection (a) of this section have not been fully repaid until such moneys, together with accrued interest thereon, have been fully repaid or until July 1, 1999, whichever comes last. Each year thereafter, for counties with loans, and each fiscal year after June 30, 1999, for those counties without loans, the valuation fund shall be continued at an annual amount not to exceed two percent, as determined by the valuation commission, of the previous year's projected tax collections from such regular levies: Provided, That on and after July 1, 1999, a valuation fund of a county with a loan shall be continued at an annual amount not to exceed three percent, as determined by the valuation commission, and any amounts received in excess of two percent of the collections shall be expended solely to repay the loan and for no other purpose. No provision of this subdivision shall be construed to abrogate any requirement imposed under subsection (b) of this section.

(2) For the fiscal year beginning on July 1, 1999, and any fiscal year thereafter, the assessors, in order to receive any percent of the previous year's projected tax collections for their valuation funds, must submit a request to the valuation commission no later than December 15, 1994, and by the same date in December each year thereafter. The submission shall include a projected expenditure budget, including any balances expected to be carried forward, with justification for the percent requested for their valuation fund for the ensuing fiscal year. A copy of the projected budget and justifications shall also be sent to the assessor's county commission, municipalities and school board. The valuation commission shall meet after January 15, but prior to February 1 each year beginning in the year 1995, and has authority to accept and confirm up to two percent as a justifiable amount for counties without loans, and to accept and confirm up to three percent for counties with loans, subject to the requirement of subdivision (1) of this subsection that any amounts received in excess of two percent of the collections shall be expended solely to repay the loan and for no other purpose. The valuation commission may establish whatever lower percent of the previous year's projected tax collections each assessor shall receive based upon the evidence at hand, and the particular reevaluation needs of the county. Absent a proper application by any assessor, the valuation commission may, after consultation with the Tax Commissioner's office, set whatever allowable percent it considers proper. Following its decisions, the valuation commission shall certify to the chief inspector's office of the Department of Tax and Revenue and the Joint Committee on Government and Finance, the percent approved for each assessor's valuation fund, and the chief inspector's office shall notify each affected sheriff and levying body of the moneys due from their levies to their respective valuation funds. County commissions, boards of education and municipalities may present written evidence, prior to January 15, 1995, and by the same date of each year thereafter, acceptable to the valuation commission showing that a lesser amount than that requested by the assessor would be adequate to fund the extra costs associated with the valuation mandated by section seven of this article: Provided, That the county commissions, in addition, shall fund the county assessor's office at least the level of funding provided during the fiscal year in which this section was initially enacted.

These additional funds are intended to enable assessors to maintain current valuations and to perform the periodic reevaluation required under section nine of this article.

(d) Moneys due the valuation fund shall be deposited by the sheriff of the county on a monthly basis as directed by the chief inspector's office for the benefit of the assessor and shall be available to and may be spent by the assessor without prior approval of the county commission, which may not exercise any control over the fund. Clerical functions related to the fund shall be performed in the same manner as done with other normal funding provided to the assessor.

§11-1C-9. Periodic valuations.

(a) After completion of the initial valuation required under section seven of this article, each assessor shall maintain current values on the real and personal property within the county. In repeating three-year cycles, every parcel of real property shall be visited by a member of the assessor's staff who has been trained pursuant to section six of this article to determine if any changes have occurred which would affect the valuation for the property. With this information and information such as sales ratio studies provided by the Tax Commissioner, the assessor shall make such adjustments as are necessary to maintain accurate, current valuations of all the real and personal property in the county and shall adjust the assessments accordingly.

(b) In any year the assessed value of a property or species of property be less than or exceed sixty percent of current market value, the Tax Commissioner shall direct the assessor to make the necessary adjustments. If any assessor fails to comply with the provisions of this section, the Tax Commissioner may, at the county commission's expense, take reasonable steps to remedy the assessment deficiencies.

§11-1C-10. Valuation of industrial property and natural resources property by Tax Commissioner; penalties; methods; values sent to assessors.

(a) As used in this section:

"Industrial property" means real and personal property integrated as a functioning unit intended for the assembling, processing and manufacturing of finished or partially finished products.

"Natural resources property" means coal, oil, natural gas, limestone, fireclay, dolomite, sandstone, shale, sand and gravel, salt, lead, zinc, manganese, iron ore, radioactive minerals, oil shale, managed timberland as defined in section two of this article, and other minerals.

(b) All owners of industrial property and natural resources property each year shall make a return to the State Tax Commissioner and, if requested in writing by the assessor of the county where situated, to such county assessor at a time and in the form specified by the commissioner of all industrial or natural resources property owned by them. The commissioner may require any information to be filed which would be useful in valuing the property covered in the return. Any penalties provided for in this chapter or elsewhere in this code relating to failure to list any property or to file any return or report may be applied to any owner of property required to make a return pursuant to this section.

(c) The State Tax Commissioner shall value all industrial property in the state at its fair market value within three years of the approval date of the plan for industrial property required in subsection (e) of this section. The commissioner shall thereafter maintain accurate values for all such property. The Tax Commissioner shall forward each industrial property appraisal to the county assessor of the county in which that property is located and the assessor shall multiply each such appraisal by sixty percent and include the resulting assessed value in the land book or the personal property book, as appropriate for each tax year. The commissioner shall supply support data that the assessor might need to evaluate the appraisal.

(d) Within three years of the approval date of the plan required for natural resources property required pursuant to subsection (e) of this section, the State Tax Commissioner shall determine the fair market value of all natural resources property in the state and thereafter maintain accurate values for all such property.

(1) In order to qualify for identification as managed timberland for property tax purposes the owner must annually certify, in writing to the Division of Forestry, that the property meets the definition of managed timberland as set forth in this article and contracts to manage property according to a plan that will maintain the property as managed timberland. In addition, each owner’s certification must state that forest management practices will be conducted in accordance with approved practices from the publication "Best Management Practices for Forestry". Property certified as managed timberland shall be valued according to its use and productive potential. The Tax Commissioner shall promulgate rules for certification as managed timberland.

(2) In the case of all other natural resources property, the commissioner shall develop an inventory on a county by county basis of all such property and may use any resources, including, but not limited to, geological survey information; exploratory, drilling, mining and other information supplied by natural resources property owners; and maps and other information on file with the state Division of Environmental Protection and office of miners’ health, safety and training. Any information supplied by natural resources owners or any proprietary or otherwise privileged information supplied by the state Division of Environmental Protection and office of miner’s health, safety and training shall be kept confidential unless needed to defend an appraisal challenged by a natural resources owner. Formulas for natural resources valuation may contain differing variables based upon known geological or other common factors. The Tax Commissioner shall forward each natural resources property appraisal to the county assessor of the county in which that property is located and the assessor shall multiply each such appraisal by sixty percent and include the resulting assessed value in the land book or the personal property book, as appropriate, for each tax year. The commissioner shall supply support data that the assessor might need to explain or defend the appraisal. The commissioner shall directly defend any challenged appraisal when the assessed value of the property in question exceeds $2 million or an owner challenging an appraisal holds or controls property situated in the same county with an assessed value exceeding $2 million. At least every five years, the commissioner shall review current technology for the recovery of natural resources property to determine if valuation methodologies need to be adjusted to reflect changes in value which result from development of new recovery technologies.

(3) Property producing oil, natural gas, natural gas liquids-

(A) The Tax Commissioner shall value property producing oil, natural gas, natural gas liquids, or any combination thereof in the state at its fair market value determined through the process of applying a yield capitalization model to the net proceeds.

(B) For the purposes of this subdivision:

(i) "Actual annual operating costs" shall include, without limitation, all lease operating expenses, lifting costs, gathering, compression, processing, separation, fractionation, and transportation costs as further defined herein.

(ii) "Capitalization rate" means a single state-wide capitalization rate for oil, natural gas, and natural gas liquids producing property, which shall be determined annually by the Tax Department based on a "Build-up-Model" of the Weighted Average Cost of Capital (WACC).

(iii) "Compression costs" are the actual costs in the process of raising the pressure of minerals.

(iv) "Fractionation costs" means the actual costs incurred by the producer in fractionation. Fractionation is the separating of components of a mixture through differences in physical or chemical properties. Fractionation is the process by which raw hydrocarbons are separated into products.

(v) "Gathering costs" means the actual costs of transportation of oil, natural gas, natural gas liquids, condensate, or any combination thereof from multiple wells by separate and individual pipelines to a central point of accumulation, dehydration, compression, separation, heating and treating or storage.

(vi) "Lease operating expenses" means the actual costs incurred to bring the subsurface minerals (oil, natural gas, and natural gas liquids) up to the surface and convert them to marketable products. Lease operating expenses refers to the costs of operating the wells and equipment. "Lease operating expenses" includes actual costs of labor, fuel, utilities, materials, rent or supplies, which are directly related to the production, processing, or transportation of oil, natural gas, natural gas liquids, or any combination thereof and that can be documented by the producer. For the purposes of this calculation, depreciation, depletion, extraordinary expenses, ad valorem taxes, capital expenditures, intangible drilling costs, expenditures relating to vehicles or other tangible personal property not permanently used in the production of oil, natural gas, natural gas liquids, or any combination thereof shall not be included as lease operating expenses.

(vii) "Lifting costs" means the actual costs incurred to operate a well during production.

(viii) "Marginal well" means in the calendar year immediately preceding the July 1 assessment date a well with an average daily production of 2 barrels of oil or less and an average daily production of 10 MCF or less of natural gas.

(ix) "Natural gas liquids" means propane, ethane, butanes, and pentanes (also referred to as condensate), or a combination of them that are subject to recovery from raw gas liquids by processing in field separators, scrubbers, gas processing and reprocessing plants, or cycling plants.

(x) "Net proceeds" means actual gross receipts on a sales volume basis determined from the actual price received by the taxpayers as reported on the taxpayer’s returns, less royalty interest receipts, and less actual annual operating costs as reported on the taxpayer’s returns.

(xi) "Processing costs" means the actual costs incurred by the producer for activities occurring beyond the inlet to an oil, natural gas, or natural gas liquids processing facility that changes the physical or chemical characteristics, enhances the marketability, or enhances the value of the separate components. Processing costs are limited to the costs for the following activities: fractionation, adsorption, flashing, refrigeration, cryogenics. sweetening, dehydration within a processing facility, beneficiation, stabilizing, compression, and separation which occurs within a processing facility.

(xii) "Processing, Separation, and Fractionation costs" means de-ethnization fees, processing or fractionation fees, pipeline or transportation fees, fuel fees, and electric fees charged by a processing or fractionation plant to the producer.

(xiii) "Royalty interest receipts" means the fractional interest in production of oil, natural gas, natural gas liquids, or any combination thereof, that may or may not be subject to development costs or operating expenses and extends undiminished over the life of the property. Typically, it is retained by the mineral owner, mineral lessor, or both.

(xiv) "Transportation costs" means the actual costs of moving oil, natural gas, natural gas liquids, unprocessed gas, residue gas, or gas plant products or any combination thereof to a point of sale.

(C) (i) For all assessments made on or after July 1, 2022, the valuation of property producing oil, natural gas, natural gas liquids, or any combination thereof shall be calculated using a yield capitalization model. The yield capitalization model shall be composed of a working interest model and a royalty interest model. The summation of the working interest model and the royalty interest model shall represent the fair market value of the property.

(I) The working interest model shall be calculated as the sum of the working interest net proceeds income series for natural gas, oil, and natural gas liquids. The net proceeds income series shall be calculated as a terminating series of net proceeds discounted by applying a capitalization rate multiplier and a decline rate multiplier. The initial term of the terminating series of net proceeds shall be the net proceeds for that product multiplied by a six month capitalization rate multiplier and an eighteen month decline rate multiplier.

In each subsequent term of the net proceeds income series, the calculation shall use the value from the previous term and multiply that term by a capitalization rate multiplier and an applicable twelve-month decline rate multiplier.

(II) The royalty interest model shall be calculated as the sum of the royalty interest receipts income series for natural gas, oil, and natural gas liquids. The royalty interest receipts income series shall be calculated as a terminating series of royalty interest receipts discounted by applying a capitalization rate multiplier and a decline rate multiplier. The initial term of the terminating series of royalty interest receipts shall be the royalty interest receipts for that product multiplied by a six month capitalization rate multiplier and an eighteen month decline rate multiplier.

In each subsequent term of the royalty interest receipts income series, the calculation shall use the value from the previous term and multiply that term by a capitalization rate multiplier and an applicable twelve-month decline rate multiplier.

(ii) For all assessments made on or after July 1, 2022, the Tax Commissioner shall annualize gross receipts and actual annual operating expenses before calculation of the working interest model and the royalty interest model for wells that produced for less than 12 months during the first calendar year of production or during the first calendar year of production after being shut-in during the previous calendar year. Companies may provide additional actual gross receipts and actual operating expense information that will be supplemented or used in lieu of the Tax Commissioner annualization calculations.

(iii) For all assessments made on or after July 1, 2024, but not before, the Tax Commissioner may not include a minimum valuation for any calculation related to determining the value of any well. For all assessments made prior to July 1, 2024, no minimum valuation shall exceed the values of $0.30 per MCF of natural gas, $10.00 per barrel of oil, or $0.30 per unit of natural gas liquids, as established in a Notice to taxpayers from the State Tax Department dated on or about December 22, 2021.

(D) Safe harbor. – The Tax Commissioner shall annually determine a safe harbor amount for actual annual operating costs to be published in the State Register for all marginal wells producing oil, natural gas, natural gas liquids, or any combination thereof. For operators of marginal wells choosing to use the safe harbor amount rather than calculate their actual annual operating costs, that safe harbor amount will be considered the costs associated with the production of the oil, natural gas, natural gas liquids, or any combination thereof, typical of the producing geographical area and geological strata.

(E) The Tax Commissioner shall collect, retain, and report to the Speaker of the House of Delegates and the President of the Senate on or before April 1, 2023, and each April 1 thereafter, all information requested by the Division of Regulatory and Fiscal Affairs regarding the valuation of property producing oil, natural gas, natural gas liquids, or any combination thereof.

(F) The Tax Commissioner shall propose rules required to administer this subdivision, including emergency rules, in accordance with §29A-3-1 et seq. of this code, regarding valuation of property producing oil, natural gas, natural gas liquids, or any combination thereof.

(e) The Tax Commissioner shall develop a plan for the valuation of industrial property and a plan for the valuation of natural resources property. The plans shall include expected costs and reimbursements, and shall be submitted to the property valuation training and procedures commission on or before January 1, 1991, for its approval on or before July 1, of such year. Such plan shall be revised, resubmitted to the commission and approved every three years thereafter.

(f) To perform the valuation duties under this section, the State Tax Commissioner has the authority to contract with a competent property appraisal firm or firms to assist with or to conduct the valuation process as to any discernible species of property statewide if the contract and the entity performing such contract is specifically included in a plan required by subsection (e) of this section or otherwise approved by the commission. If the Tax Commissioner desires to contract for valuation services only in one county or a group of counties, the contract must be approved by the commission.

(g) The county assessor may accept the appraisal provided, pursuant to this section, by the State Tax Commissioner: Provided, That if the county assessor fails to accept the appraisal provided by the State Tax Commissioner, the county assessor shall show just cause to the valuation commission for the failure to accept such appraisal and shall further provide to the valuation commission a plan by which a different appraisal will be conducted.

(h) The costs of appraising the industrial and natural resources property within each county, and any costs of defending same shall be paid by the state: Provided, That the office of the state Attorney General shall provide legal representation on behalf of the Tax Commissioner or assessor, at no cost, in the event the industrial and natural resources appraisal is challenged in court.

(i) For purposes of revaluing managed timberland as defined in section two of this article, any increase or decrease in valuation by the commissioner does not become effective prior to July 1, 1991. The property owner may request a hearing by the director of the Division of Forestry, who may thereafter rescind the disqualification or allow the property owner a reasonable period of time in which to qualify the property. A property owner may appeal a disqualification to the circuit court of the county in which the property is located.

§11-1C-11. Managed timberland; findings, purposes and declaration of legislative intent; implementation; inspection and determination of qualification; creation of online application renewal form.

(a) The Legislature finds and declares that the public welfare is enhanced by encouraging and sustaining the abundance of high quality forest land within the state; that economic pressures may force industrial, residential or other land development inconsistent with sustaining the forests; and that tax policy should provide an incentive for private owners of forest land to preserve the character and use of land as forest land and to make management decisions which enhance the quality of the future forest.

(b) In exercising the authority granted by the provisions of section fifty-three, article VI of the Constitution of West Virginia, the Legislature makes the following declarations of its intent:

(1) Notwithstanding the provisions of section twenty-four, article three of this chapter, timberland certified by the Division of Forestry as managed timberland shall be valued as managed timberland as provided in this article when it is managed under a cooperative contract with the Division of Forestry and the certification has not been surrendered by the owner of the property or revoked by the director of the Division of Forestry.

The Division of Forestry shall, at the time of contracting, notify the owner that the owner shall incur a penalty as set forth in section five-a, article three of this chapter if the owner fails to provide written notice to the county assessor of a change in use of the managed timberland.

(2) Property certified as managed timberland which prior to certification is properly taxed in Class II, as defined in section five, article eight of this chapter and section one, article X of the Constitution of West Virginia, may not be reclassified to Class III or Class IV, as defined in section five, article eight of this chapter, merely because the property is certified as managed timberland unless there is some other event or change in the use of the property that disqualifies it from being taxed in Class II.

(c) To aid the Legislature in assessing the impact of the managed timberland program on the State of West Virginia, the Division of Forestry and the Tax Commissioner, on or before December 31, 2001, and on December 31, each year thereafter, shall report in writing to the Joint Committee on Government and Finance of the Legislature or its designated subcommittee. The Tax Commissioner shall include in his or her report a complete and accurate assessment of the impact of the managed timberland program on the tax collections of the state, including projected increases or decreases in tax collection. The Division of Forestry shall include in its report detailed information on the number of acres designated as managed timberland and any identified impacts of the program on the state’s timber industry.

(d) In order to expedite the renewal process for the Managed Timberland Program, the Division of Forestry shall create and maintain an online renewal process no later than October 1, 2023.  The first question on the online renewal form shall read "Has your information from last year changed?" If the answer is no, then the individual using the online renewal form shall have to check a box and submit the form, and that shall be a completed renewal application.  If an individual’s information has changed, then the individual shall have a space on the online form to complete that summarizes those changes. There shall be no charge to the individual for any submission of an online renewal form. This section does not affect the costs associated with the initial application.

§11-1C-11a. Certification of managed timberland; assessment of property; penalty for failure to comply.

(a) Any person who owns timberland comprising ten or more contiguous acres may qualify for identification as managed timberland for property tax purposes as set forth in subdivision (1), subsection (d), section ten of this article.

(b) The assessor, upon receipt of an appraisal or certification of the timberland from the Tax Commissioner, shall assess the property as managed timberland beginning with the next ensuing assessment year. Except as otherwise provided in this section, the classification of timberland included in a certified managed timberland plan shall not change for property tax purposes until such time as there is: (1) A change in the use of the property which requires a change in classification; (2) a change in the classification of the property from Class III to Class IV; or (3) a change in the classification of the property from Class IV to Class III.

(c) If the director of the Division of Forestry determines that the owner of timberland failed to implement a certified managed timberland plan within twenty-four months of certifying that the property meets the definition of managed timberland, the director shall give written notice to the owner by certified mail, return receipt requested, that such certification is removed and the owner of the timberland shall pay to the sheriff of the county in which the property is located a fine equal to the amount of property taxes saved due to the property being assessed as managed timberland plus interest calculated at the rate of nine percent per year. Additionally, the assessor shall reassess the property. The amount of this fine is equal to the sum of the following calculations:

(1) For each assessment year, the county assessor shall determine the market value of the property and subtract from that value the value at which the property was appraised as managed timberland. This amount shall be multiplied by sixty percent. This result shall then be multiplied by the applicable levy rate.

(2) Interest shall be imposed on the amount calculated under subdivision (1) of this subsection at the rate of nine percent per annum beginning with October 1, of the tax year in which the taxes should have been paid based upon the timberland value of the property. Interest shall continue to accrue until the day the fine is paid.

(d) The sheriff shall deposit and account for the fines collected under this section in the same manner as property taxes.

§11-1C-11b. Valuation; rulemaking; aggrieved person and taxpayer protests; exhaustion of remedies; compliance inspection; notice of revocation; appeal; effective date.

(a) The Tax Commissioner shall establish by legislative rule two methodologies for determining the appraised value of managed timberland, based upon the land's potential to produce future income according to its use and productive potential as managed timberland and whether the property is classified as Class II property or as Class III or IV property for property tax purposes. These values shall be determined by discounting the potential future net income of the timberland to its present value utilizing a discounted cash flow model based upon whether the property is classified as Class II property or as Class III or IV property for property tax purposes.

(b) The Tax Commissioner shall also establish by legislative rule a method to determine the appraised value of timberland that is not certified as managed timberland. All timberland that is not certified as managed timberland shall be valued at its market value, except for farm woodlots which shall be valued as part of the farm.

(c) Notwithstanding the provisions of section five-a of this article, the legislative rules required by subsections (a) and (b) of this section may be promulgated as emergency legislative rules if they are filed in the state register on or before July 1, 1998.

(d) The value of an acre of managed timberland in a county shall always be less than the value of an acre of timberland of comparable soil quality in the county that is not certified as managed timberland.

(e) Any person aggrieved by any valuation of timberland may file a written objection to the valuation with the county assessor on or before January 15, of the assessment year. The written objection shall then be treated as a protest filed by the taxpayer under section twenty-four-a, article three of this chapter. If any person fails to exhaust the administrative and judicial remedies provided in said section, that person shall be barred from taking any further administrative or judicial action regarding the classification of the property for that assessment year.

(f) Upon request of the Tax Commissioner or the assessor or county commission of the county in which the managed timberland is located, the director of the Division of Forestry shall inspect the property and determine whether or not the property continues to qualify for preferential valuation as managed timberland under this article. In the event the director of forestry determines that a property does not qualify as managed timberland due to a change in its use, or it is discovered that a material misstatement of fact was made by the owner of the property in the certification of the property as managed timberland under subdivision (1), subsection (d), section ten of this article, or it is discovered that the property owner is not complying with the terms of the managed timberland plan, including any period of time for coming into compliance granted the owner by the director of forestry, the director shall give written notice to the owner of the property by certified mail, return receipt requested, the Tax Commissioner and the assessor of each county in which the property is located that the certification of the property as managed timberland is revoked.

(g) The aggrieved owner of the property which had its managed timberland certification revoked pursuant to any provision of this code may, at any time up to sixty days from the date of notification from the director of forestry, petition the circuit court of the county in which the property is located for relief.

(h) The provisions of this section shall apply to tax years beginning on or after January 1, 1999.

§11-1C-11c. Valuation of oil and gas drilling rigs.

Notwithstanding any provision of this code to the contrary and to facilitate the equal and uniform taxation of oil and natural gas drilling rigs throughout the state, the State Tax Commissioner shall annually compile a schedule of oil and natural gas drilling rig values based on the values shown in a nationally recognized guide or bulletin published during the calendar year that includes the assessment date, using the appropriate depth rating assigned to the drawworks by its manufacturer and the actual condition of the drilling rig. The State Tax Commissioner shall furnish the schedule to each assessor and it shall be used by him or her as a guide in placing the assessed values on all oil and natural gas drilling rigs in his or her county. This section applies to assessment years beginning on and after July 1, 2011.

§11-1C-12. Board of equalization and review; assessments; board of public works.

(a) As valuations of property in a county are completed to the extent that a total valuation of property can be determined, such valuation shall be delivered by the assessor to the county commission, and the county commission, sitting as a board of equalization and review, shall use such appraised valuations as a basis for determining the true and actual value for assessment purposes of the several classes of property.

(b) For the tax year subsequent to the end of the initial valuation period in each county, and for each year thereafter, each county shall implement a uniform assessment that is equal to sixty percent of the most current appraised value for all real and personal property situated within the county. Such implementation shall be in accordance with provisions to be included in the plan required by section seven of this article.

(c) Until such time as the uniform sixty percent assessment required in subsection (b) is effected, the total assessed valuation in each of the four classes of property shall not be less than sixty percent nor more than one hundred percent of the appraised valuation of each said class of property.

(d) The board of public works, in performing the duties required in article six of this chapter relating to the assessment of public service businesses, shall submit on or before January 1, 1991, a plan to the property valuation training and procedures commission for implementing on or before July 1, 1994, and for each year thereafter, a uniform assessment that is equal to sixty percent of the most current valuation for all property valued by the board of public works. Such plan shall be approved on or before July 1, 1991.

§11-1C-13. Severability.

If any provisions of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or its application and to this end the provisions of this article are declared to be severable.

§11-1C-14. Confidentiality and disclosure of return information to develop or maintain a mineral mapping or geographic information system; offenses; penalties.

(a) All information provided by or on behalf of a natural resources property owner or by or on behalf of an owner of an interest in natural resources property to any state or county representative, including property tax returns, maps and geological information and property tax audit information provided to the West Virginia Department of Environmental Protection, Office of Oil and Gas, and the West Virginia Geological and Economic Survey, for use in the valuation or assessment of natural resources property or for use in the development or maintenance of a legislatively funded mineral mapping or geographic information system is confidential. The information is exempt from disclosure under section four, article one, chapter twenty-nine-b of this code, and shall be kept, held and maintained confidential except to the extent the information is needed by the State Tax Commissioner to defend an appraisal challenged by the owner or lessee of the natural resources property subject to the appraisal: Provided, That this section may not be construed to prohibit the publication or release of information generated as a part of the minerals mapping or geographic information system, whether in the form of aggregated statistics, maps, articles, reports, professional talks or otherwise, presented in accordance with generally accepted practices and in a manner so as to preclude the identification or determination of information about particular property owners: Provided, however, That effective July 1, 2006, the Tax Commissioner may disclose the following specified information obtained from the West Virginia oil and gas producer/operator return to the West Virginia Geological and Economic Survey and the West Virginia Department of Environmental Protection, Office of Oil and Gas: Provided further, That the West Virginia Geological and Economic Survey and the West Virginia Department of Environmental Protection, Office of Oil and Gas, may disclose the following specified information obtained from the West Virginia oil and gas producer/operator return.

(1) The name and address of the owner of a working interest in the well for which the return is filed;

(2) The county and district within the county wherein the oil or gas well is located and taxed for ad valorem taxation purposes;

(3) The name, address and telephone number of the producer and the producer's agent;

(4) The American Petroleum Institute number assigned to each well for which the return is filed;

(5) The total barrels produced in the reporting period for each oil well for which the return is filed; and

(6) The total mcf produced in the reporting period for each gas well for which the return is filed.

(b) Any state or county representative or employee, or employee or representative of the West Virginia Geological and Economic Survey or the Department of Environmental Protection, who violates this section by disclosing confidential information 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, and shall be assessed the cost of prosecution. As used in this section, the term "state or county representative" includes any current or former state or county employee, officer, commission or board member and any state or county agency, institution, organization, contractor or subcontractor and any principal, officer, agent or employee thereof.

§11-2-1. Assessment districts and assessors.

Each county in this state shall constitute one assessment district and shall elect one assessor, whose term of office shall be four years. The assessors now in office shall serve until the expiration of the term for which they were elected, and their successors shall be elected at the general election of one thousand nine hundred thirty-six and every four years thereafter. No person shall be eligible to the office of assessor who is not a resident of the county at the time of his election. The assessor's office, properly equipped at the county seat, shall be kept open throughout the year.

§11-2-2. Deputy assessors.

The assessor in every county shall select his deputies, assistants and other employees in the same manner as is provided for the selection of deputies, assistants and employees of sheriffs and clerks of courts.

§11-2-3. Selection of deputy assessors.

The deputy assessors shall be appointed by the assessor with the advice and consent of the county commission, and may be removed at any time in the discretion of the assessor. Vacancies occurring from any cause in the office of any deputy assessor shall be filled by the assessors.

§11-2-4. Apportionment of work.

The assessor, after consulting with his deputies, shall apportion the work of assessing property for the purpose of taxation among his deputies and himself as nearly equal as possible to magisterial districts, and may, from year to year, make such changes in the apportionment of work as to him may seem proper.

§11-2-5(56). Salaries paid out of county fund.

The salaries of assessors and their deputies, assistants and employees shall be paid out of the county fund at the time and in the manner now provided by law for paying other county officers.

§11-2-5a(2). Additional compensation; additional duties -- Berkeley County.

For the county of Berkeley, one thousand six hundred dollars.

§11-2-5a.

Repealed.

Acts, 1980 Reg. Sess., Ch. 31.

§11-2-5. [Repealed].

Acts 1971, c. 23.

§11-2-6. Correction of lists by assessor.

The deputies shall perform their labors under the direction and advice of the assessor. It shall be his duty to examine and revise the lists of property taken by his deputies to see that the assessment is equal and uniform throughout his county; and if in his opinion any property, real or personal, in any of such lists, is valued at more or less than its value, according to the rule prescribed by law, he shall correct the same by giving to such property its value according to such rule. If it should appear that any property liable to taxation has been omitted from any taxpayer's list, the assessor shall list and value the same.

§11-2-7. State and local meetings.

There shall be an annual meeting of the assessors, which meeting the assessors of the several counties of the state shall attend. The date and place of such meeting shall be fixed by the Tax Commissioner and due notice thereof shall be given to the assessors of the state. The Tax Commissioner shall prepare a program of matters pertaining to assessments and work of the assessors to be discussed at such meeting and he shall attend and be ex officio chairman of the same. The meeting shall continue for a period of at least two days but not more than four days. The actual and necessary expense incurred by any assessor and not more than two deputies to be designated by him in attendance at such meeting shall be paid out of the county treasury of the county of the assessor and deputies so attending. Before such payment, however, the assessor shall file an itemized statement, which shall be sworn to, of his actual and necessary expenses, with the clerk of the county court.

In addition to the meeting hereinbefore provided for, there shall be at least two meetings of each assessor and his deputies between the first day of the assessment year and January 20, of the current year, at such time and place as the assessor shall designate, of which meeting all deputies shall have notice, for the purpose of securing uniform valuation of property, both real and personal, throughout the entire county, according to the true and actual value. The last meeting shall be held after the work of listing property has been completed, at which meeting all the lists shall be thoroughly gone over, and if found to be erroneous, either in the amount of property, real or personal, assessed to any person, firm or corporation, or in the value given to any item of property by the taxpayer shall be revised and corrected by placing on such list the omitted property and giving to it, as well as to any property that has been listed, but which has been incorrectly valued, the true and actual value thereof according to the rule prescribed by law and by omitting property improperly listed.

§11-2-8. Records of assessor.

The official books and papers of the assessor shall remain as the permanent records of his office and shall be turned over by each assessor to his successor. In event of the loss or destruction of such records the assessor, with the consent of the Tax Commissioner, may obtain copies thereof and the expense of obtaining such copies shall be paid out of the county treasury.

§11-2-9. List of violations furnished prosecuting attorney.

It shall be the duty of every assessor to furnish the prosecuting attorney of the county a list of every violation of the revenue laws committed by any person, other than himself showing the nature and character of each violation. It shall be the duty of such prosecuting attorney to deliver such list to the foreman of the grand jury, who shall treat it as having been especially delivered in charge to the grand jury. The said foreman, after the grand jury is discharged, shall return said list to the clerk of the circuit court, to be preserved and filed in his office.

§11-2-10.

Repealed.

Acts, 1971 Reg. Sess., Ch. 23.

§11-2-11. Exception.

Notwithstanding the provisions of section seven of this article, between January 1, and June 20, 1961, the assessor and his deputies shall meet for the purposes specified by section seven of this article.

§11-3-1. Time and basis of assessments; true and actual value; default; reassessment; special assessors; criminal penalty.

(a) All property, except public service businesses assessed pursuant to article six of this chapter, shall be assessed annually as of July 1 at sixty percent of its true and actual value; that is to say, at the price for which the property would sell if voluntarily offered for sale by the owner thereof, upon the terms as the property, the value of which is sought to be ascertained, is usually sold, and not the price which might be realized if the property were sold at a forced sale.

(b) Any conflicting provisions of subsection (a) of this section notwithstanding, the true and actual value of all property owned, used and occupied by the owner thereof exclusively for residential purposes shall be arrived at by also giving consideration to the fair and reasonable amount of income which the same might be expected to earn, under normal conditions in the locality wherein situated, if rented: Provided, That the true and actual value of all farms used, occupied and cultivated by their owners or bona fide tenants shall be arrived at according to the fair and reasonable value of the property for the purpose for which it is actually used regardless of what the value of the property would be if used for some other purpose; and that the true and actual value shall be arrived at by giving consideration to the fair and reasonable income which the same might be expected to earn under normal conditions in the locality wherein situated, if rented: Provided, however, That nothing herein shall alter the method of assessment of lands or minerals owned by domestic or foreign corporations.

(c) The taxes upon all property shall be paid by those who are the owners thereof on the assessment date whether it be assessed to them or others.

(d) If at any time after the beginning of the assessment year it be ascertained by the Tax Commissioner that the assessor, or any of his or her deputies, is not complying with this provision or that they have failed, neglected or refused, or is failing, neglecting or refusing after five days' notice to list and assess all property therein at sixty percent of its true and actual value as determined under this chapter, the Tax Commissioner shall order and direct a reassessment of any or all of the property in any county, district or municipality where any assessor or deputy fails, neglects or refuses to assess the property in the manner herein provided. And, if the Tax Commissioner has determined that the assessor has not complied or has so failed, neglected or refused to list and assess property as aforesaid for two or more consecutive years, for the purpose of making assessment and correction of values, the Tax Commissioner shall appoint one or more special assessors, unless the Tax Commissioner determines that such appointment should be made earlier, as necessity may require, to make assessment in any county and any such special assessor or assessors, as the case may be, has the power and authority now vested by law in assessors, and the work of such special assessor or assessors shall be accepted and treated for all purposes by the county boards of review and equalization and the levying bodies, subject to any revisions of value on appeal, as the true and lawful assessment of that year as to all property valued by him or her or them. The Tax Commissioner shall fix the compensation of all special assessors appointed, which, together with their actual expenses, shall be paid out of the county fund by the county commission of the county in which any such assessment is ordered, upon the receipt of a certificate of the Tax Commissioner filed with the clerk of the county commission showing the amounts due and to whom payable, after such expenses have been audited by the county commission. All of this subsection is subject to the following:

(1) Notwithstanding any other provision of this subsection to the contrary, if the Tax Commissioner has determined that the assessor has not complied or has so failed, neglected or refused to list and assess property as aforesaid for two consecutive years, but the assessor can show that the criteria established by rule pursuant to this subsection are met, the Tax Commissioner is not required to appoint one or more special assessors pursuant to this section, and in lieu of appointing one or more special assessors, may again order and direct a reassessment of any or all of the property pursuant to this subsection;

(2) For any third or succeeding consecutive year or years that the Tax Commissioner determines that the assessor has not complied or has so failed, neglected or refused to list and assess property as aforesaid, the Tax Commissioner shall appoint one or more special assessors pursuant to the provisions of this subsection regardless of whether or not the assessor can show that he or she will list and assess property as aforesaid the next year; and

(3) For the purposes of determining consecutive years pursuant to this subsection, only tax years beginning on and after the July 1, 2013, assessment date may be considered a first year.

(4) For purposes of subdivision (1) of this subsection, criteria for determining whether the assessor has made a satisfactory showing that he or she will list and assess property as aforesaid for the year next succeeding the two assessment years specified in subdivision (1) of this subsection, the Tax Commissioner shall apply criteria based on: (A) Sales validity; (B) appraisal uniformity; (C) appraisal evaluation; and (D) such other criteria as the Tax Commissioner may prescribe. The Tax Commissioner shall promulgate a legislative rule to specify criteria for the treatment authorized herein for any such third year or succeeding consecutive year or years, and such administrative and procedural requirements and criteria as the Tax Commissioner may prescribe.

(e) Any assessor who knowingly fails, neglects or refuses to assess all the property of his or her county, as herein provided, shall be guilty of malfeasance in office and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or imprisoned not less than three nor more than six months, or both, in the discretion of the court, and upon conviction, shall be removed from office.

(f) For purposes of this chapter and chapter eleven-a of this code, the following terms have the meanings ascribed to them in this section unless the context in which the term is used clearly indicates that a different meaning is intended by the Legislature:

(1) "Assessment date" means July 1 of the year preceding the tax year.

(2) "Assessment year" means the twelve-month period that begins on the assessment date.

(3) "Tax year" or "property tax year" means the next calendar year that begins after the assessment date.

(4) "Taxpayer" means the owner and any other person in whose name the taxes on the subject property are lawfully assessed.

§11-3-1a. Magisterial districts as tax districts; legislative findings; terms defined.

The Legislature recognizes that several counties have redistricted their magisterial districts in order to achieve as nearly as practicable equal numbers of population within each such district; that if the land books and personal property books of any such county must be changed following each such redistricting so as to reflect the newly established districts, very substantial costs to the counties would be occasioned thereby; that if the land books must be changed following each such redistricting so as to reflect the newly established districts, problems would arise in searching and abstracting titles to real property; and that there is no reason to require the land books and personal property books of a county for tax purposes to be on a magisterial district basis as such districts are established for voting purposes. Consequently, the terms "tax district" or "district," or the plural thereof, as used in this chapter, shall mean the magisterial district or districts and the subdivisions thereof as the same existed in any county on January 1, 1969: Provided, That in a county in which the county court has exercised the power formerly granted it under chapter one hundred seventeen, acts of the Legislature, regular session, 1972, by designating that county's magisterial districts as tax districts, the term "tax districts" shall mean the magisterial districts of that county as they existed on July 1, 1973.

§11-3-1b. Recordation of plat or designation of land use not to be basis for assessment; factors for valuation; legislative rule; effective dates.

(a) The recordation of a plan or plat, or the designation of proposed land use by a county or municipal planning authority, shall not be used by the assessor as a basis in the valuation or assessment of real property for the purposes of taxation, except as hereafter provided. The valuation of real property contained in a recorded plan or plat is as follows:

(1) When a lot or parcel within a recorded plan or plat is sold, that lot shall be revalued by the county assessor or Tax Commissioner. In no event may the remaining lots within the recorded plan or plat be automatically revalued solely based upon the sale of other lots within the recorded plan or plat.

(2) When land contained within a recorded plan or plat is first developed and actually used for a commercial, residential or industrial purpose, the land shall be revalued by the county assessor or the Tax Commissioner, depending upon whoever has authority over the land, but in no event may the remaining lots within the recorded plan or plat be automatically revalued solely based upon the sale of other lots within the recorded plan or plat.

(b) For valuation of the remaining lots or parcels or undeveloped portion within the recorded plan or plat, the following factors shall be taken into consideration in determining the valuation: (1) Availability of improved roads; (2) availability of sewage disposal and drinking water supply, including, but not limited to, the use of such factors as availability of public water and sewage systems, private water systems, water wells, private sewage and septic systems or potential private sewage and septic systems; (3) availability of electrical, telephone and other utility services; and (4) percentage of completion of improvements and infrastructure development. The assessor shall annually determine the percentage of completion of improvements and infrastructure development. The Tax Commissioner shall propose a legislative rule for submission to the Legislature pursuant to the provisions of article three, chapter twenty-nine-a of this code, which rule shall describe in detail the methodology and use of the factors set out above, as well as any other factors determined by the Tax Commissioner to be applicable, for valuation of percentage of completion of improvements and infrastructure development. The remaining lots or parcels or undeveloped portion within the recorded plan or plat are not managed timberland for purposes of valuation of management timberland under sections eleven and eleven-a, article one-c of this chapter. For purposes of classification of property for levy purposes under section five, article eight of this chapter, developed lots or parcels shall not be reclassified from Class III to Class II or from Class IV to Class II until the developed lot or parcel is used and occupied by the owner thereof exclusively for residential purposes as defined in section three, article four of this chapter.

(c) The designation of proposed land use by a county or municipal planning authority may not be used or considered by an assessor in determining the appraised value of property included under a designation of proposed land use by a county or municipal planning authority until such time as the actual use of the real property has changed to correspond to the proposed use. For purposes of this subsection, the actual use of real property shall be treated as having changed to correspond to the proposed use as improvements on the property necessary for the proposed use are completed: Provided, That in valuing the property before its change to actual use, the assessor may consider the factors described in subsection (b) of this section.

(d) The amendments made to this section by the Legislature in 2000 shall become effective on July 1, 2000, and shall be effective as to all plans or plats filed after June 30, 2000. The provisions of the amendments made to this section in 2000 do not apply to unsold lots or parcels or undeveloped land contained within recorded plans or plats which were recorded prior to July 1, 2000: Provided, That in no event may the appraised value of unsold lots or parcels or undeveloped land contained within these recorded plans or plats be less than their appraised value as of July 1, 2000.

§11-3-2. Canvass by assessor; lists of property.

On July 1, in each year, the assessors and their deputies shall begin the work of assessment in their respective counties, and shall, from that date, diligently and continuously pursue with all reasonable dispatch, their work of assessment until the same is completed: Provided, That the assessor and his deputies shall finish their work of assessment, and complete the land and personal property books not later than January 30. Beginning on July 1, as aforesaid, the assessor or a deputy shall obtain from every person in the county who is liable to assessment, a full and correct description of all of the personal property of which he was the owner on July 1, of the current year, fixing what he deems to be the true and actual value of each item of personal property for the guidance of the assessor, who shall finally settle and determine the actual value of each item of such property by the rule prescribed in section one of this article. The assessor or a deputy shall also obtain from such person separate, full and true statements, in like manner, and upon forms to be furnished him distinctly setting forth in each a correct description of all property, real and personal, held, possessed or controlled by him as executor, administrator, guardian, trustee, receiver, agent, partner, attorney, president or accounting officer of a corporation, consignee, broker, or in any representative or fiduciary character; and he shall fix what he deems the true and actual value thereof to each item of such property, which valuation shall be subject to revision and change by the assessor in like manner as property owned by such person in his own right: Provided, That no person shall be compelled to furnish the list mentioned in this section sooner than July 10, of the current year.

The assessor shall perform such other duties while making his assessment as may be required of him by law.

§11-3-2a. Notice of increased assessment required for real property; exceptions to notice.

(a) If the assessor determines the assessed valuation of any item of real property appraised by him or her is more than ten percent greater than the valuation assessed for that item in the last tax year, the increase is $1,000 or more and the increase is entered in the property books as provided in section nineteen of this article, the assessor shall give notice of the increase to the person assessed or the person controlling the property as provided in section two of this article. The notice shall be given on or before January 15 of the tax year and advise the person assessed or the person controlling the property of his or her right to appear and seek an adjustment in the assessment: Provided, That this notification requirement does not apply to industrial or natural resources property appraised by the Tax Commissioner under article six-k of this chapter which is assessed at sixty percent of its true and actual value. The notice shall be made by first-class United States postage mailed to the address of the person assessed or the person controlling the property for payment of tax on the item in the previous year, unless there was a general increase of the entire valuation in one or more of the tax districts in which case the notice shall be by publication of the notice by a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The area for the publication is the county. The requirement of notice under this section is satisfied and waived if personal notice of the increase is shown by:

(1) The taxpayer having signed the assessment form after it had been completed showing the increase;

(2) Notice was given as provided in section three-a of this article; or

(3) The person assessed executing acknowledgment of the notice of the increase.

(b) During the initial reappraisal of all property under section seven, article one-c of this chapter, the Tax Commissioner and each county assessor shall send every person owning or controlling property appraised by the Tax Commissioner or the county assessor a pamphlet which explains the reappraisal process and its equalization goal in a detailed yet informal manner. The property valuation training and procedures commission, created under section three, article one-c of this chapter, shall design the pamphlet for use in all counties while allowing individual county information to be included if it determines that the information would improve understanding of the process.

§11-3-3. Who to furnish property list.

The list required in the preceding section shall be made and information furnished: (a) With respect to property of a minor, by his guardian, if he has one, and if he has none, by his father, if living, or, if not, by his mother, if living, and if neither be living or be a resident of this state, by the person having charge of the property; (b) with respect to the separate property of a married woman, by herself or her husband in her name; (c) with respect to the property of a husband, who is out of the state or incapable of listing such property, by his wife; (d) with respect to the property held in trust, by the trustee, if in possession thereof, otherwise by the party for whose benefit it is held; (e) with respect to the personal property of a deceased person, by the personal representative; (f) with respect to the property of an insane person, or a person sentenced to confinement in the penitentiary, by his committee; (g) with respect to the property of a company, whether incorporated or not, whose assets are in the hands of an agent, factor or receiver, by such agent, factor or receiver, otherwise by the president or proper accounting officer, partner or agent within the state; (h) with respect to credits or investments, in the possession or under the charge of a receiver or commissioner, by such receiver or commissioner; and (i) with respect to shares in a banking institution or national banking association, by the cashier, secretary or principal accounting officer of such banking institution or national banking association, as provided in section fourteen of this article.

§11-3-3a. Building or real property improvement notice; notice filed with assessors; when not required; penalties.

Any person, corporation, association or other owner of real property, subject to the payment of property tax, who shall hereafter erect any building or structure, or who shall add to, enlarge, move, alter, convert, extend, raze or demolish any building or structure, whereby the value of the said real property shall be improved more than $1,000, shall give notice in writing to the assessor within sixty days after the commencement of the improvement of such property. The notice shall be given upon such forms as may be prescribed by the Tax Commissioner who shall furnish the same to assessors. The notice shall contain the following information: (1) A statement that improvements are being or have been made; (2) the location or address of the property; and (3) the name of the owner or owners of the property. The information contained in such notice shall be advisory in nature and may be used by the assessor in performing his duties as otherwise provided by law: Provided, however, That a report made by or on behalf of any mine, mill, factory, or other industrial establishment and filed with the assessor on or before June 15 which discloses with certainty any construction, or improvement made during the previous twelve months, shall be deemed compliance with this section: And provided further, That within the area of any county or municipality where a building permit has been obtained prior to beginning such work, the delivery of a copy of the building permit to the assessor by the owner or the issuing authority shall be sufficient notice under this section. Any person who shall violate the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $10 nor more than $100 in the discretion of the court. Justices of the peace shall have concurrent jurisdiction with other courts having jurisdiction for the trial of all misdemeanors arising under this section.

§11-3-4.

Repealed.

Acts, 1983 1st. Ex. Sess., Ch. 15.

§11-3-5. Correction of previous property books; entry of omitted property.

The assessor, in making out the land and personal property books, shall correct any and every mistake he or she discovers in the books for any previous year.

When the assessor ascertains that any real or personal property in his or her county liable to taxation, other than that mentioned in the next succeeding paragraph, has been omitted from the land or personal property books for a period of less than five years, he or she shall make an entry of the property in the proper book of the year in which the omission was discovered and assess the same, according to the rule prescribed in section one of this article, and shall charge the same with all taxes chargeable against it at the rate of levy for the year or years the same was omitted, together with interest at the rate of six percent per annum for the years the same was omitted from the books: Provided, That if the taxpayer, including any person, firm or corporation, and excluding public service corporations, requires proof of payment of personal property taxes then the taxpayer shall file a listing of all personal property owned on the assessment date preceding the tax year or years for which proof must be shown. The assessor shall then create a supplemental assessment for the year or years required for proof of payment for all personal property taxes provided on the listing and present the supplemental assessment to the sheriff who shall apply the levy rate or rates for the year or years so assessed and prepare a tax bill and collect the taxes together with interest thereon at the rate of six percent per annum for the years the same was omitted from the books and any penalties included thereon: Provided, however, That any person who has been a resident of the state less than one year prior to the assessment date is not required to pay any interest or penalty.

And when the assessor ascertains that any notes, bonds, bills and accounts receivable, stocks and other intangible personal property in his or her county liable to taxation has been omitted from the personal property books for a period of five years or less after December 31, 1932, he or she shall make entry of the property in the personal property book of the year in which the omission was discovered and assess the same at its true and actual value, according to the rule prescribed in section one of this article, and shall charge the same with all taxes chargeable against it after the year last aforesaid at the rate of levy for the year or years the same was omitted after the year aforesaid, together with interest thereon at the rate of six percent per annum for the years the same was omitted from the books.

Any assessor failing to make an entry as in this section provided, when discovered by him or her or called to his or her attention by any taxpayer interested therein, shall forfeit $100.

§11-3-5a. Notification to assessor of changed use; independent action of director; penalties; effective date.

(a) Whenever property receiving preferential valuation as managed timberland is converted to a use that disqualifies the property from treatment as managed timberland, the person converting the real estate to another use shall immediately, in writing, notify the county assessor of the change in use. The county assessor or Tax Commissioner, as the case may be, shall then determine the value and classification of the property based upon its new use.

(b) If the director of the Division of Forestry has reason to believe that managed timberland was or is being converted to a use that disqualifies the property from treatment as managed timberland, the director shall investigate. If, upon investigation, the director determines that the property no longer qualifies for treatment as managed timberland, the director shall revoke the property's certification as managed timberland. The director shall give written notice to the owner of the property by certified mail, return receipt requested, to the Tax Commissioner and to the assessor of the county in which the property is located that the property no longer qualifies for valuation as managed timberland. If the property is located in two or more counties, notice shall be given to each assessor.

(c) If any person fails to give written notice of the change in use of managed timberland as required in subsection (a) of this section, the person owning the property shall be subject to a penalty in an amount equal to the amount of additional taxes the person would have paid on the property if written notice had been timely given, plus interest calculated at the rate of nine percent per annum: Provided, That the maximum penalty under this section shall be five years of additional taxes plus interest. This penalty may be assessed in the same manner as back taxes are assessed under section five of this article for omitted property and interest shall accrue until the day the penalty is paid.

(d) This section shall apply to tax years beginning on or after January 1, 1999, and to changes in use occurring on or after that day.

§11-3-6. Statements of assessed valuations for municipalities and boards of education; extension of levies.

The assessor shall annually, not later than March 3, furnish to the recorder or clerk of the city or town council of every incorporated city and town in the county and also to the secretary of the board of Education of the county and to the state Board of Education, a certified statement, showing in separate amounts the aggregate value of all property, real and personal, and of all property within each class as provided in section five, article eight of this chapter, and the clerk of the county commission shall, in like fashion, certify the aggregate value of all property assessed by the board of public works, or other board in lieu thereof, in such city or district, as ascertained from the land and personal property books and from the statement furnished by the Auditor to the county clerk of the value of property assessed in such county by the board for the current year.

The statement so furnished shall be taken, by the council of such city or town, as the proper valuation of all property situated therein and liable for taxation for municipal purposes notwithstanding any provisions which may be contained in the charter of any city or town. Upon receiving such statement, the recorder or clerk of the council, shall present the same to the council at a meeting to be held for the purpose of making the estimate and laying the levy as hereinafter required; and, as soon as the rate shall have been determined upon, the recorder, or secretary of the council, shall furnish the officer whose duty it is to make out the land and personal property books a certified copy of the order of such city or town council fixing the rate of tax, and such officer shall thereupon extend the tax against the property situated in such city or town, in the land books and the personal property book of the county, in separate columns in such books, which columns shall be headed with the words: "Town, or city, tax for the town, or city, of ____________________."

§11-3-7. Fixtures and machinery.

In assessing the value of buildings or structures, the assessor shall ascertain the value of all machinery and fixtures attached thereto, and include the same in the value of the building charged to the owner, unless it appears that such machinery and fixtures are owned by some person other than the owner of the building, in which case the value of such machinery and fixtures shall be assessed to their owner as personal property; and the value of such machinery or fixtures shall be thereafter increased or reduced according as they may have increased or decreased in actual value.

§11-3-7a. Chattel interests in real and tangible personal property.

For ad valorem property tax purposes, chattel interests in real property and chattel interest in tangible personal property are hereby defined to be interests in tangible personal property and are to be assessed and taxed as such. As so defined, chattel interest in real property and chattel interests in tangible personal property are not intangible personal property for ad valorem property tax purposes.

§11-3-8. Who deemed owner for purposes of taxation.

As to real property the person who by himself or his tenants has the freehold in his possession, whether in fee or for life, shall be deemed the owner for the purpose of taxation. A person who has made a mortgage or trust deed to secure a debt or liability shall be deemed the owner until the mortgagee or trustee takes possession, after which such mortgagee or trustee shall be deemed the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be deemed the property of the party who has the possession: Provided, however, That the reserve funds required in compliance with the terms and conditions of policies and contracts of domestic life insurance, annuity, investment and savings contract companies, complying with the requirements of chapter thirty-three of the code, shall not be deemed taxable property of such companies.

§11-3-9. Property exempt from taxation.

(a) All property, real and personal, described in this subsection, and to the extent limited by this section, is exempt from taxation:

(1) Property belonging to the United States, other than property permitted by the United States to be taxed under state law;

(2) Property belonging exclusively to the state;

(3) Property belonging exclusively to any county, district, city, village, or town in this state and used for public purposes;

(4) Property located in this state belonging to any city, town, village, county, or any other political subdivision of another state and used for public purposes;

(5) Property used exclusively for divine worship, or used exclusively for divine worship and the operation of a pre-K school, primary school, middle school, secondary school, daycare center, or church camp for children, which school, daycare center, or church camp is operated by the church which owns the property or is operated by another not-for-profit organization or entity;

(6) Parsonages and the household goods and furniture pertaining thereto;

(7) Mortgages, bonds, and other evidence of indebtedness in the hands of bona fide owners and holders hereafter issued and sold by churches and religious societies for the purposes of securing money to be used in the erection of church buildings used exclusively for divine worship or for the purpose of paying indebtedness thereon;

(8) Cemeteries;

(9) Property belonging to, or held in trust for, colleges, seminaries, academies, and free schools, if used for educational, literary, or scientific purposes, including books, apparatus, annuities, and furniture;

(10) Property belonging to, or held in trust for, colleges or universities located in West Virginia, or any public or private nonprofit foundation or corporation which receives contributions exclusively for such college or university, if the property or dividends, interest, rents, or royalties derived therefrom are used or devoted to educational purposes of such college or university;

(11) Public and family libraries;

(12) Property used for charitable purposes and not held or leased out for profit;

(13) Property used for the public purposes of distributing electricity, water or natural gas or providing sewer service by a duly chartered nonprofit corporation when such property is not held, leased out, or used for profit;

(14) Property used for area economic development purposes by nonprofit corporations when the property is not leased out for profit;

(15) All real estate not exceeding one acre in extent, and the buildings on the real estate, used exclusively by any college or university society as a literary hall, or as a dormitory or clubroom, if not used with a view to profit, including, but not limited to, property owned by a fraternity or sorority organization affiliated with a university or college or property owned by a nonprofit housing corporation or similar entity on behalf of a fraternity or sorority organization affiliated with a university or college, when the property is used as residential accommodations or as a dormitory for members of the organization;

(16) All property belonging to benevolent associations not conducted for private profit;

(17) Property belonging to any public institution for the education of the deaf, intellectually disabled, or blind or any hospital not held or leased out for profit;

(18) Houses of refuge and mental health facility or orphanage;

(19) Homes for children or for the aged, friendless, or infirm not conducted for private profit;

(20) Fire engines and implements for extinguishing fires, and property used exclusively for the safekeeping thereof, and for the meeting of fire companies;

(21) All property on hand to be used in the subsistence of livestock on hand at the commencement of the assessment year;

(22) Household goods to the value of $200, whether or not held or used for profit;

(23) Bank deposits and money;

(24) Household goods, which for purposes of this section means only personal property and household goods commonly found within the house and items used to care for the house and its surrounding property, when not held or used for profit;

(25) Personal effects, which for purposes of this section means only articles and items of personal property commonly worn on or about the human body or carried by a person and normally thought to be associated with the person when not held or used for profit;

(26) Dead victuals laid away for family use;

(27) All property belonging to the state, any county, district, city, village, town, or other political subdivision or any state college or university which is subject to a lease purchase agreement, and which provides that, during the term of the lease purchase agreement, title to the leased property rests in the lessee so long as lessee is not in default or shall not have terminated the lease as to the property;

(28) Personal property, including vehicles that qualify for a farm use exemption certificate pursuant to §17A-3-2 of this code and livestock, employed exclusively in agriculture, as defined in article X, section one of the West Virginia Constitution: Provided, That this exemption only applies in the case of such personal property used on a farm or farming operation that annually produces for sale agricultural products, as defined in rules of the Tax Commissioner;

(29) Real property owned by a nonprofit organization whose primary purpose is youth development by means of adventure, educational, or recreational activities for young people, which real property contains a facility built with the expenditure of not less than $100 million that is capable of supporting additional activities within the region or the state and which is leased or used to generate revenue for the nonprofit organization whether or not the property is used by the nonprofit organization for its nonprofit purpose, subject to the requirements, limitations, and conditions set forth in §11-3-9(h) of this code; and

(30) Any other property or security exempted by any other provision of law.

(b) Notwithstanding the provisions of §11-3-9(a) of this code, no property is exempt from taxation which has been purchased or procured for the purpose of evading taxation whether temporarily holding the same over the first day of the assessment year or otherwise.

(c) Real property which is exempt from taxation by §11-3-9(a) of this code shall be entered upon the assessor’s books, together with the true and actual value thereof, but no taxes may be levied upon the property or extended upon the assessor’s books.

(d) Notwithstanding any other provisions of this section, this section does not exempt from taxation any property owned by, or held in trust for, educational, literary, scientific, religious, or other charitable corporations or organizations, including any public or private nonprofit foundation or corporation existing for the support of any college or university located in West Virginia, unless such property, or the dividends, interest, rents, or royalties derived therefrom, is used primarily and immediately for the purposes of the corporations or organizations.

(e) The Tax Commissioner shall, by issuance of rules, provide each assessor with guidelines to ensure uniform assessment practices statewide to affect the intent of this section.

(f) Inasmuch as there is litigation pending regarding application of this section to property held by fraternities and sororities, amendments to this section enacted in the year 1998 shall apply to all cases and controversies pending on the date of such enactment.

(g) The amendment to §11-3-9(a)(27) of this code, passed during the 2005 regular session of the Legislature, shall apply to all applicable lease purchase agreements in existence upon the effective date of the amendment.

(h) Nonprofit youth organization exemption. — Limitations, conditions, collection, and administration of one and one quarter percent fee, limitations, and distribution of moneys.

(1) The exemption from ad valorem taxation provided pursuant to the provisions of §11-3-9(a)(29) of this code does not apply to a property owned by a nonprofit organization otherwise qualifying for the exemption but which property or facilities are used for profit or outside the primary purpose of the owner which result in unrelated business taxable income as defined by Section 512 of the Internal Revenue Code of 1986, as amended, unless the income is generated by an activity upon which the one and one quarter percent fee authorized by §11-3-9(h)(2) of this code is applied as provided in §11-3-9(h)(3) of this code.

(2) The owner of real property exempt from ad valorem taxation under §11-3-9(a)(29) of this code shall pay an amount equal to one and one quarter percent of the gross revenues the owner receives in accordance with this subsection. For purposes of this subsection, "gross revenues" means the gross amount received by the owner as payment for use of the property or the facilities thereon.

(3) Gross revenues derived from the following facilities, uses, activities, and operations are subject to a fee of one and one quarter percent of such gross revenues:

(A) Gross revenues derived from the use of lodging and campground facilities by persons participating in meetings and multiday spectator sports or multiday recreational, celebratory, or ceremonial events held onsite where onsite lodging or camping is offered as part of the program. For purposes of this section the term "meeting" means, and is limited to, a gathering, assembly, or conference of two or more persons who have deliberately convened at a single specific location at a single specified time and date for a common specific purpose.

(B) Gross revenues derived from any retail store located at the facility that is open only to those persons who are attending meetings, spectator sports, recreational, celebratory, or ceremonial events held onsite at the facility.

(C) Gross revenues derived from operations of gift shops at a welcome or information center located adjacent to a public highway operated by the nonprofit organization which is open to the general public.

(D) Gross revenues derived from the leasing of zip-lines, canopy tours, wheeled sports, and climbing facilities used by the general public on a for-profit basis: (i) Under a written agreement with a licensed commercial outfitter operating a business utilizing zip-lines, canopy tours, wheeled sports, or climbing areas of a similar nature in the same or an adjacent county where the facilities are located; and (ii) when the property or facilities are used as part of a training or advanced experience offered by the licensed commercial outfitter.

(E) Gross revenues derived from the use or operation of zip-lines, canopy tours, wheeled sports facilities, or activities, climbing facilities or activities and the use or operation of other sporting facilities on the exempt property that are leased on a for-profit basis for spectator events, such as concerts, spectator sporting events, or exhibitions or similar mass gathering events.

(F) Gross revenues derived from leases or agreements for use of the property for meetings and multiday spectator sports or events or multiday recreational, celebratory, or ceremonial events, held onsite.

(4) Notwithstanding any other provision of this section to the contrary, programs or activities occurring on the property or its facilities held in conjunction with a government organization or sponsored by other nonprofit organizations serving youth, veterans, military services, public service agencies including, fire, police, emergency, and search and rescue services, government agencies, schools and universities, health care providers, and similar organizations or groups which are designed to provide opportunities for learning or training in the areas of leadership, character education, science, technology, engineering, arts, and mathematics (STEAM) programs, physical challenges, sustainability, conservation, and outdoor learning shall be considered a charitable or nonprofit use for the purposes of this section and not subject to the one and one quarter percent fee.

(5) Notwithstanding any other provision of this section to the contrary, activities open to the public through individual visitor passes allowing tours and access to the property and its facilities for the purpose of viewing or participating in demonstrations, programs, and facilities providing information and experiences consistent with the owner’s nonprofit purposes where zip-lines, canopy tours, wheeled sports, or climbing facilities are merely components of the demonstrations, programs, and facilities used shall be considered a charitable or nonprofit use for the purposes of this section and not subject to the one and one quarter percent fee: Provided, That such individual visitor passes may not include the rental or use of onsite overnight lodging or camping facilities.

(6) Administration. —

(A) The sheriff of the county wherein the majority of the acreage of the property is located as specified in the deed to such property, shall collect, on a monthly basis, all moneys derived from the fee of one and one quarter percent of the gross revenues imposed under this subsection.

(B) The sheriff of the county wherein the majority of the acreage of the property is located as specified in the deed to such property, shall prescribe such forms and schedules as may be necessary for the efficient, accurate, and expeditious payment and reporting of the one and one quarter percent fee specified in this subsection on gross revenues.

(C) The sheriff of the county wherein the majority of the acreage of the property is located as specified in the deed to such property, shall administer the fee imposed under this subsection, including refunds and adjustments.

(D) Payment, administration, and compliance of fee payers and administrators shall be subject to audit by the Office of Chief Inspector.

(E) All moneys so collected, net of refunds and adjustments, shall be paid into a special account in the State Treasury, which is hereby created, and the amount thereof shall be distributed and paid annually, by the State Treasurer, on October 1 of each year, into the funds and to the distributees specified in of this code in the amounts specified therein.

(7) Distribution. —

(A) Twenty-five percent of moneys so collected, net of refunds and adjustments, shall be paid annually to the Tourism Promotion Fund established pursuant to §5B-2-12 of this code.

(B) Twenty-five percent of moneys so collected, net of refunds and adjustments, shall be paid annually to the sheriff of the county where the property is located which, but for the exemption provided in §11-3-9(a)(29) of this code, would be entitled to receive ad valorem taxes on the property. The sheriff shall treat all such payments in the same manner as payments in lieu of taxes, and such payments are subject to the adjustment mandated under §18-9A-12 of this code. For properties located in more than one county, the amount paid to the sheriff of the county shall be in proportion to the total number of acres located in each county at the close of the fiscal year, as specified in the deed to such property.

(C) Fifty percent of moneys so collected, net of refunds and adjustments, shall be divided equally and paid annually into separate accounts established and maintained by the sheriffs of the county or counties wherein the property is located and the sheriffs of any other county that is within the jurisdiction of the same economic development authority as the county or counties wherein the property is located to be used solely for the establishment and delivery of a science, technology, engineering, art, and math (STEAM) program in conjunction with the owner of the exempt property. The funds shall be divided equally for use in each county and the programs must be approved by the respective county superintendents of schools. Expenditures from the accounts shall be authorized by the county superintendent of schools.

(8) If lodging is furnished as part of a retreat, meeting, or multiday spectator sport or event being held onsite wherein onsite lodging or camping is offered as part of the program, any applicable hotel occupancy tax and state and local consumers sales and service tax and use tax shall be paid based upon the actual location of such lodging.

(9) If merchants are allowed to do business on the property, the owner or lessee of the property shall offer space to local merchants on terms at least as favorable as are offered to other merchants.

(10) For the purposes of this subsection, owner includes the owner holding record title to the property and its affiliates to the extent they are commonly owned, controlled or have the power to appoint the governing body of the affiliate.

(11) The Tourism Commission shall include in its annual report submitted to the Governor and the Legislature a summary of funds paid into the Tourism Promotion Fund and recommendations pertaining to the administration of this section.

(12) This subsection may not be construed to prohibit the owner of property otherwise subject to this section from having portions of the property severed from the remainder of the property, assessed and taxed as if nonexempt and thereafter conducting business on such property the same as any other nonexempt property: Provided, That the area of property to be severed shall be approved by the county commission wherein the property lies so as to include in the severance all property substantially supporting the for-profit or business activity giving rise to the specific purpose of the severance and excluding all property entitled to the continued benefits of this act.

(i) To assure the implementation of §11-3-9(h) of this code does not harm local and regionally located businesses by use of the tax-exempt facility in a manner that cause unfair competition and unreasonable loss of revenue to those businesses, studies shall be periodically conducted to assure that further legislation is in order regarding the uses of the tax-exempt facility. The county commission of any county where such a property is located shall report to the Joint Committee on Government and Finance by the first day of January every five years after the effective date of this section. The report shall include information on any unfair business competition resulting from the establishment of the nonprofit status, and include a report of the costs and benefits to its county of the tax exemption and associated fee, including an audit of that county’s use of the net revenues. The West Virginia University Bureau of Business and Economic Research in coordination of the Center for Business and Economic Research at Marshall University, by January 1, 2020, shall undertake a study and report to the committee, the economic impact of this tax exemption and fee to the county and that region of the state, and make any recommendations regarding the benefits and disadvantages for continuing the provision of this tax exemption and fee, included, but not limited to, the impacts to other small and large businesses in the county, the costs to the county has incurred as a result of use of the facility, and any other relevant data that the universities may deem relevant.

§11-3-10. Failure to list property, etc.; collection of penalties and forfeitures.

(a) If any person, firm or corporation, including public service corporations, whose duty it is by law to list any real estate or personal property for taxation, refuses to furnish a proper list thereof or refuses to list within the time required by law, or if any person, firm or corporation, including public service corporations, refuses to answer or answers falsely any question asked by the assessor or by the Tax Commissioner, or fails or refuses to deliver any statement required by law, the person, firm or corporation may forfeit, at the discretion of the assessor or the Tax Commissioner for good cause shown, not less than $25 nor more than $100. If any person, firm or corporation willfully fails to furnish a proper list of real estate or personal property for taxation or refuses to answer or falsely answers any question asked by the assessor or by the Tax Commissioner, or fails or refuses to deliver any statement required by law, such person, firm or corporation shall be denied all remedy provided by law for the correction of any assessment made by the assessor or by the board of public works: Provided, That no person, firm or corporation shall be denied the remedy provided by law to contest any assessment unless the assessor or the Tax Commissioner has notified such person, firm or corporation in writing that this penalty will be asserted and the requested information is not provided within fifteen days of the date of receipt of the notice.

(b) If any person, firm or corporation, including public service corporations, required by law to make return of property for taxation, whether the return is to be made to the assessor, the board of Public Works, or any other assessing officer or body, fails to return a true list of all property which should be assessed in this state, the person, firm or corporation, in addition to all other penalties provided by law, shall forfeit one percent of the value of the property not yet returned and not otherwise taxed in this state.

(c) A forfeiture as to all property aforesaid may be enforced for any default occurring in any year not exceeding five years immediately prior to the time the default is discovered.

(d) Each failure to make a true return as herein required constitutes a separate offense, and a forfeiture shall apply to each of them, but all forfeitures, to which the same person, firm or corporation is liable, shall be enforced in one proceeding against the person, firm or corporation, or against the estate of any deceased person, and may not exceed five percent of the value of the property not returned that is required to be returned for taxation by this chapter.

(e) Forfeitures shall be collected as provided in article two, chapter eleven-a of this code, the same as any tax liability, against the defaulting taxpayer, or in case of a decedent, against his or her personal representative. The sheriff shall apportion such fund among the state, county, district, school district and municipalities which would have been entitled to the taxes upon the property if it had been assessed, in proportion to the rates of taxation for each levying unit for the year in which the judgment was obtained bears to the sum of rates for all.

(f) When the list of property returned by the appraisers of the estate of any deceased person shows an amount greater than the last assessment list of real and tangible personal property of the deceased person next preceding the appraisal of his or her estate, it is prima facie evidence that the deceased person returned an imperfect list of his or her property: Provided, That any person liable for the tax, or his or her personal representative, may always be permitted to prove by competent evidence that the discrepancy between the assessment list and the appraisal of the estate is caused by a difference of valuation returned by the assessor and that made by the appraisers of the same property or by property acquired after assessment, or that any property enumerated in the appraisers' list had been otherwise listed for taxation, or that it was not liable for taxation.

(g) Any judgment recovered under this section is a lien, from the time of the service of the notice, upon all real estate and personal property of the defaulting taxpayer, owned at the time or subsequently acquired, in preference to any other lien.

§11-3-10a.

Repealed.

Acts, 1974 Reg. Sess., Ch. 130.

§11-3-10b. Exemption of bank deposits and money from forfeitures and penalties.

No forfeiture or penalty imposed by the provisions of section ten of this article for failure to make a return of bank deposits or money shall be collectible unless the claim therefor shall have been reduced to judgment in favor of the state prior to November 4, 1958.

§11-3-11. Making or correction of list by assessor.

If any person fail to furnish a proper list, or if the list furnished be, in the judgment of the assessor, incomplete or erroneous in any respect, the assessor shall proceed to list the property and assess its value, or to supply the omission and correct the errors, upon the best information he can obtain, and for that purpose the assessor may call upon any officer of the state, county or district for such proper information as it may be in his power to give, and may require any person having possession, charge or control of any property in the county to permit him to examine the same in order that a fair valuation thereof may be made, and if any person refuse to do so, he shall forfeit not less than $10 nor more than $50.

§11-3-12. Assessment of corporate property; reports to assessors by corporations.

(a) Each incorporated company, banking institution and national banking association, foreign or domestic, having its principal office or chief place of business in this state, owning property subject to taxation in this state, except railroad, telegraph and express companies, telephone companies, pipeline, car line companies and other public utility companies, shall annually, between the assessment date and September 1, make a written report, verified by the oath of the president or chief accounting officer, to the assessor of the county in which its principal office or chief place of business is situated or in which property subject to taxation in this state is located if the corporation does not have a principal office or chief place of business in this state, showing the following items: (1) The quantity, location and fair market value of all of its real estate, and tax district or districts in which it is located; and (2) the kinds, quantity and fair market value of all its tangible personal property in each tax district in which it is located.

(b) The oath required for this section shall be substantially as follows:

State of West Virginia, County ................., ss:

I, ...................., president (treasurer or manager) of (here insert name of corporation), do solemnly swear (or affirm) that the foregoing is, to the best of my knowledge and judgment, true in all respects; that it contains a statement of all the real estate and tangible personal property that the value affixed to such property is, in my opinion, its value, by which I mean the price at which it would sell if voluntarily offered for sale on such terms as are usually employed in selling such property, and not the price which might be realized at a forced or auction sale; and said corporation has not, to my knowledge, during the sixty-day period immediately prior to the assessment date converted any of its assets into nontaxable securities or notes or other evidence of indebtedness for the purposes of evading the assessment of taxes thereon; so help me, God.

The officer administering the oath shall append thereto the following certificate:

Subscribed and sworn to before me by .................... this the .......... day of ................., 20 ......

§11-3-13. Entry of corporate property by assessor.

Upon receiving the verified report required by the preceding section, the assessor, if satisfied with the correctness thereof, shall assess the value of all the property of such corporation liable to taxation, and enter the same as follows, viz: All property in item (d) shall be entered with its valuation in the land books of the county and in the tax district in which the real estate is situated; all property mentioned in item (c) shall, together with its valuation, be entered in the personal property book of the county and in the tax district wherein is the principal office or chief place of business of such corporation, under the appropriate heads; and all property mentioned in item (e) shall, together with its valuation, be entered in the personal property book of the county and in the tax district wherein such property is on the first day of the assessment year; the property mentioned in items (c), (d) and (e) shall constitute all the property on which any such corporation shall be liable to pay taxes. If a company has branches, each branch shall be assessed separately in the county and tax district where its principal office for transacting its financial concerns is located; or, if there be no such office, then in the tax district where its operations are carried on. All locks and dams of navigation companies shall be assessed and taxed as real estate in the county and tax district wherein they are situated; and in case such locks and dams are located on any creek or river which is the dividing line between counties, or the dividing line between tax districts of the same county, one half of the value thereof shall be assessed in each of such counties or tax districts, as the case may be, and when the property of an incorporated company is assessed as aforesaid, no individual shareholder therein shall be required to list or be assessed with his share, portion or interest in the capital stock of such corporation.

§11-3-14. Assessment of stock, realty and tangible personal property of banks.

(a) Shares of stock in a banking institution, national banking association or industrial loan company shall be assessed at their true and actual value, according to the rules prescribed in this chapter, to the several holders of such stock in the county, district and town where such bank, company or association is located, and not elsewhere, whether such holders reside there or not. The real and actual value of such shares shall be ascertained according to the best information which the assessor may be able to obtain, whether from any return made by such bank, company or association to any officer of the state or the United States, from actual sales of the stock, from answers to questions by the assessor, as hereinafter provided, or from other trustworthy sources. The cashier, secretary or principal accounting officer of every such bank, company or association shall cause to be kept a correct list of the names and residences of all the shareholders therein, and number of shares held by each, which list shall be open to the inspection of the assessors of the county, and of the Tax Commissioner or assistants; and such cashier, secretary or officer shall answer under oath such questions as the assessor may ask him concerning the matters shown by such list, and concerning the value of such shares, and shall be subject to the same penalties, for failure to do so, which are imposed by law upon individuals failing to answer questions which the assessor is authorized to ask. The taxes so assessed upon the shares of any such bank, company, or association shall be paid by the cashier, secretary or proper accounting officer thereof, and in the same manner and at the same time as other taxes are required to be paid in such county, district and town. In default of such payment such cashier, secretary or accounting officer as well as such bank, company or association shall be liable for such taxes, and in addition, for a sum equal to ten percent thereof. Any taxes so paid upon any such share may, with interest thereon, be recovered from the owners thereof by the bank, company, association or officer paying them, or may be deducted from the dividends accruing on such shares. The real estate of any such bank, company or association shall be assessed as in other cases, and a proportionate share of such assessed value shall be deducted in ascertaining the market value of the shares. The tangible personal property of any such bank, company, or association shall be assessed as in other cases and a proportional share of such assessed value shall be deducted in ascertaining the market value of the shares for tax years as follows: Such deduction shall be sixteen and sixty-six one hundredth percent of the assessed value of the tangible personal property for the tax year one thousand nine hundred ninety-eight; thirty-three and thirty-two one hundredth percent of the assessed value of the tangible personal property for the tax year one thousand nine hundred ninety-nine; forty-nine and ninety-eight hundredth percent of the assessed value of the tangible personal property for the tax year two thousand; sixty-six and sixty-four hundredth percent of the assessed value of the tangible personal property for the tax year two thousand one; eighty-three and twenty one hundredth percent for the tax year two thousand two with such personal property tax deduction being eliminated entirely for the tax year two thousand three and thereafter. And if such tangible personal property or if the title to the building in which any such bank, company or association does its business and the land on which such building stands is held by separate corporation in which such bank, company or association alone or together with another such bank or banks, company or companies, association or associations owns stock, and such tangible personal property or building and land be assessed to such separate corporation, a proportionate share of the assessed value of such tangible personal property or real estate of such separate company shall be deducted in ascertaining the market value of the shares of such bank, company or association. The return shall be made as of the first day of the assessment year.

(b) This section shall become inoperative beginning tax year two thousand three and thereafter.

§11-3-14a. Taxation of building and loan associations and federal savings and loan associations.

(a) The capital of every building and loan association and federal savings and loan association shall include all of its assets and shall be assessed at its true and actual value according to the rules prescribed by this chapter, to such building and loan association or federal savings and loan association in the county, district and town where such association is located: Provided, That investment shares and investment share accounts in such associations representing money withdrawable therefrom are hereby defined as money for purposes of taxation under this section and, as such, shall not be taxed but shall be deducted by the assessor in determining the true and actual value of the capital of any such association. The real and actual value of such capital shall be ascertained according to the best information which the assessor may be able to obtain, whether from any return made by such association to any officer of this state, or the United States, or from answers to questions by the assessor, as hereinafter provided, or from other trustworthy sources.

The secretary or principal accounting officer of every such building and loan association and federal savings and loan association shall cause to be kept a complete accounting record, including a complete record of all such investment shares and investment share accounts, which shall be open to the inspection of the assessors of the counties, and the Tax Commissioner or his assistants, and such secretary or officer shall answer under oath such questions as the assessor may ask him concerning the matters shown by such records and accounts, and shall be subject to the same penalties for failure to do so, which are imposed by law upon individuals failing to answer questions which the assessor is authorized to ask. The tax levied and assessed upon the capital of every such building and loan association and federal savings and loan association shall be paid by such association in the manner and at the same time as other taxes are required to be paid in such county, district and town.

The real estate of any such building and loan association or federal savings and loan association shall be assessed as in other cases, and a proportionate share of such assessed value shall be deducted in ascertaining the value of such capital. The tangible personal property of any such building and loan association or federal savings and loan association shall be assessed as in other cases and a proportional share of such assessed value shall be deducted in ascertaining the value of the capital for tax years as follows: Such deduction shall be sixteen and sixty-six one hundredth percent of the assessed value of the tangible personal property for the tax year one thousand nine hundred ninety-eight; thirty-three and thirty-two one hundredth percent of the assessed value of the tangible personal property for the tax year one thousand nine hundred ninety-nine; forty-nine and ninety-eight hundredth percent of the assessed value of the tangible personal property for the tax year two thousand; sixty-six and sixty-four hundredth percent of the assessed value of the tangible personal property for the tax year two thousand one; eighty-three and twenty one hundredth percent for the tax year two thousand two with such personal property tax deduction being eliminated entirely for the tax year two thousand three and thereafter. If the title to the building in which any such association does its business and the land on which such building stands is held by a separate corporation, in which any such association alone or together with another such association or banking company or companies own stock, and such building and land be assessed in such separate corporation, a proportionate share of the assessed value of such real estate of such separate company shall be deducted in ascertaining the value of the capital of such association. Every such association shall make a return to the assessor as of the first day of the assessment year.

(b) This section shall become inoperative beginning tax year two thousand three and thereafter.

§11-3-15. Assessment of capital used in trade or business by natural persons or unincorporated businesses.

(a) The value of the capital used by any individual or firm, not incorporated, in any trade or business taxable by law, shall be ascertained in the following manner: The owner, agent or chief accountant of every trade or business, except the business of agriculture, carried on in any county of the state shall annually, on or after the assessment date and on or before September 1, make a written report to the assessor, verified by his or her affidavit, showing the following matter and things determined as of the assessment date:

(1) The amount, the true and actual value and classification of all tangible personal property used in connection with the trade or business, other than that regularly kept for sale therein, including chattels real and personal;

(2) The true and actual value and classification of all goods and property kept for sale and remaining unsold; and

(3) The location, quantity, the true and actual value and classification of all real estate owned by the individual or firm and used in the trade or business.

(b) The assessor shall, upon the receipt of such report, properly verified, if the assessor is satisfied with the correctness thereof, enter the real estate in the land book of the county in the tax district wherein the same is situated and assess the same with taxes, if not otherwise assessed, to the owner thereof: Provided, That the personal property mentioned in the report shall be entered in the personal property book of the county for assessment with taxes as follows: Items (1) and (2) shall be entered in the tax districts where they are for the greater part of the year kept or located; and item (3) shall be entered under its appropriate heading in the municipality or tax district wherein the property is located.

(c) If the assessor is not satisfied with the correctness of the report, the assessor may proceed to ascertain a correct list of the property on which the individual or firm is liable to be assessed with taxes, and to value the same as in other cases.

(d) The person making the report shall take and subscribe an oath in substantially the following form:

I, .................., do solemnly swear (or affirm) that the foregoing list is true and correct to the best of my knowledge; that the value affixed to the property therein listed I believe to be the true and actual value thereof; that none of the assets belonging to (here state the name of individual or firm) and used in the business of (here describe the business) have to my knowledge, since the assessment date, been converted into nontaxable securities for the purpose of evading the assessment of taxes thereon; so help me, God.

The officer administering the oath shall append thereto the following certificate:

Subscribed and sworn to before me by (here insert affiant's name) this ........... day of ..................., 20 ......

§11-3-15a. Assessment of property of limited liability companies.

Limited liability companies that elect to be treated as a corporation for federal income tax purposes shall make and file the report required of corporations in section twelve of this article. Limited liability companies treated as a partnership for federal income tax purposes shall make and file the report required in section fifteen of this article. A limited liability company that elects to be treated as a disregarded entity for federal income tax purposes shall be treated as a disregarded entity under this article and its owner shall make and file the report required by section twelve or section fifteen of this article depending upon whether the owner is a corporation, a firm or an individual.

§11-3-15b. Notice of increase in assessed value of business personal property.

(a) On or before January 15 of the tax year, the assessor shall mail a notice of assessed value to any corporation, partnership, limited partnership, limited liability company, firm, association, company or other form of organization engaging in business activity in the county showing the aggregated assessed value of taxpayer's tangible personal property situated in the county on the assessment date, if known, that is not appraised by the Tax Commissioner: Provided, That notice is only required if:

(1) The aggregated assessed value of taxpayer's tangible personal property used in business activity is more than ten percent greater than the aggregated assessed value of the property in the prior tax year; and

(2) The aggregated assessed value of property has increased by more than $100,000 since the prior tax year.

However, this notification requirement does not apply to industrial or natural resources personal property that is appraised by the Tax Commissioner under article six-k of this chapter which is assessed at sixty percent of its true and actual value.

(b) The assessor shall include in the assessment notice:

(1) The assessed value of the property for the preceding assessment year;

(2) The proposed assessed value of the property for the current assessment year;

(3) The classification of the property pursuant to section one, Article X of the Constitution of this state;

(4) The mailing date of the notice; and

(5) The last date on which the taxpayer may file a petition for review with the assessor from the valuation or classification assigned to the property.

(c) The notice required by this section shall be: (1) In writing, in the form prescribed by the Tax Commissioner, and mailed to the taxpayer's last known mailing address; or (2) by electronic notification.

(d) No later than the sixteenth day of the tax year, the assessor shall certify to the county commission and to the Tax Commissioner the date on which all notices under this section were mailed.

(e) After the mailing date of the notice any person who owns, claims, possesses or controls property that is valued by the assessor may inquire of and be advised by the assessor as to the valuation of the property determined by the assessor.

(f) The owner or person in possession of the tangible personal property may petition the assessor for review as provided in section fifteen-d of this article.

§11-3-15c. Petition for assessor review of improper valuation of real property.

(a) A taxpayer who is of the opinion that his or her real property has been valued too high or otherwise improperly valued or listed in the notice given as provided in §11-3-2a of this code may, but is not required to, file a petition for review with the assessor on a written form prescribed by the Tax Commissioner. This section shall not apply to industrial and natural resource property appraised by the Tax Commissioner.

(b) The petition shall state the taxpayer’s opinion of the true and actual value of the property and substantial information that justifies that opinion of value for the assessor to consider for purposes of basing a change in classification or correction of the valuation. For purposes of this subsection, the taxpayer shall provide substantial information to justify the opinion of value. The taxpayer may provide an appraisal of the property from a licensed real estate appraiser stating its true and actual value for its current use.

(c) The petition may include more than one parcel of property if they are part of the same economic unit according to the Tax Commissioner’s guidelines or if they are owned by the same owner, have the same use, are appealed on the same basis, and are located in the same tax district or in contiguous tax districts of the county, and are in a form prescribed by the Tax Commissioner.

(d) The petition shall be filed within eight business days after the date the taxpayer receives the notice of increased assessment under §11-3-2a of this code or the notice of increased value was published as a Class II-0 legal advertisement as provided in that section. For purposes of this section, ‘business day’ means any day other than Saturday, Sunday, or any legal holiday set forth in section one, article two, chapter two of this code.

§11-3-15d. Administrative review of tangible personal property valuation by assessor.

(a) The owner of business tangible personal property that is valued by the assessor or the person in whose possession it is found on the assessment date may appeal to the assessor within eight business days after the date the notice of increased assessment required by section fifteen-b of this article was received by filing a petition with the assessor on a form prescribed by the Tax Commissioner. For purposes of this section, >business day' means any day other than Saturday, Sunday or any legal holiday set forth in section one, article two, chapter two of this code. The petition shall set forth in writing:

(1) The taxpayer's opinion of the value of the tangible personal property; and

(2) Substantial information that justifies the opinion of value in order for the assessor to consider the information for the purpose of basing a change in the valuation.

(b) The assessor shall rule on each petition no later than February 10 of the tax year.

(c) The notice of the assessor's ruling provided under this section shall be given in the same manner as prescribed in section fifteen-h of this article.

(d) If the request of the petitioner is denied, in whole or in part, the notice required by subsection (c) of this section shall include the grounds for refusing to grant the request contained in the petition.

(e) This section shall not apply to tangible personal property appraised by the Tax Commissioner as part of an industrial or natural resource property appraisal.

§11-3-15e. Contents of petition based on income approach to value of real property.

(a) A petition that is filed with the assessor under section fifteen-c or fifteen-d of this article based on the income approach to value shall include income and expense data relating to the property for the three most recent consecutive fiscal years of the petitioner ending on or before June 30 preceding the then current assessment year. If the income and expense data is not available to the petitioner, the petitioner shall file with the petition such income and expense data as is available. The Tax Commissioner, by rule, may establish additional information to be filed if the required income and expense data are not available.

(b) If a petitioner under this article uses the income approach to determine valuation, the petitioner, an officer of a corporate petitioner, a general partner or a designated agent shall file a sworn affidavit under penalty of perjury that the information contained in the petition is true and correct to the best of the petitioner's knowledge.

§11-3-15f. Rejection of petition; amended petition; appeal options.

If the assessor rejects a petition filed pursuant to §11-3-15c, §11-3-15d, or §11-3-15e of this code, the petitioner may appeal to the county Board of Equalization and Review as provided in §11-3-24 of this code or the Office of Tax Appeals.

§11-3-15g. Meeting between assessor and petitioner.

(a) At the petitioner's written request, the assessor or a member of his or her staff shall meet with the petitioner and the petitioner's representative, if any, at a time and place designated at least three working days in advance by the assessor after the petition is filed.

(b) If the petitioner is unable to appear and meet with the assessor at the time and place set by the assessor, the petitioner may submit written evidence to support the petition if it is submitted before the date of the meeting.

§11-3-15h. Ruling on petition.

(a) In all cases the assessor shall consider the petition and shall rule on each petition filed pursuant to §11-3-15c, §11-3-15d, or §11-3-15e of this code by February 10 of the assessment year. Written notice shall be served by regular mail on the person who filed the petition.

(b) In considering a petition filed pursuant to §11-3-15c, §11-3-15d, or §11-3-15e of this code, the assessor shall consider the valuation fixed by the assessor on other similar property that is similarly situated.

(c) The consideration of a petition for review with the assessor is to be an informal process. Formal rules of evidence shall not be required; the assessor may consider all evidence presented and may give each item the weight, in his or her opinion, it commands.

(d) The standard of proof which a taxpayer must meet to defend his or her opinion of the true and actual value of the subject property during reviews by the assessor shall be no greater than a simple preponderance of the evidence standard.

§11-3-15i. Petitioner’s right to appeal.

(a) If the assessor grants the requested relief, the petitioner may not appeal the ruling of the assessor.

(b) If the petitioner and the assessor reach an agreement within five business days after the conclusion of the meeting held as provided in §11-3-15g of this code, both parties shall sign the agreement and both parties waive the right to further appeal.

(c) If all or part of the petitioner’s request under §11-3-15c, §11-3-15d, or §11-3-15e of this code is denied, the assessor shall mail, on the date of the ruling, to the petitioner at the address shown on the petition notice of the grounds of the refusal to make the change or changes requested in the petition. A petitioner whose request is denied, in whole or in part, or a petitioner who does not receive a response from the assessor by February 10, as provided in §11-3-15h of this code, may file a protest with the county commission sitting as a board of equalization and review, as provided in §11-3-24 of this code, or the Office of Tax Appeals.

§11-3-16. Totals of property books.

The assessor shall add up the columns of figures on each page of the land and personal property books so as to show, at the bottom of each page, the aggregate of each column; and at the end of each district list he shall enter the aggregate from the bottoms of the respective pages pertaining to such district, with reference to the pages from which he has transferred such aggregate, and shall there add up the same, so as to show the total of each column for the whole district. The totals thus ascertained for the several districts, shall be transferred, with proper references, to the end of such book and there added up so as to show the total of each column for the whole county.

§11-3-17. Assessment of property of assessor and deputies.

The assessor and his deputies shall make the same returns under oath, of their property, required by other persons. The assessor shall personally assess the property of his deputies and one of the deputy assessors shall assess the property of the assessor; in all other respects the assessment shall be similar to the assessment of the property of other persons.

§11-3-18. Tax assessment and collection when emergency exists.

When by reason of war, insurrection, riot, forcible resistance to the execution of the law or imminent danger thereof, an assessment in the regular way cannot be made, the assessor shall, nevertheless, either by the use of former land or personal property books, or upon the best information he can obtain, proceed to make an assessment, and in any case where in consequence of there being no assessor or from any other cause, a land or personal property book is not made out in any year, yet in either event taxes shall be extended and collected as if assessments had been regularly made or land and personal property books had been properly made out.

§11-3-19. Property books; time for completing; extension of levies; copies.

The assessor shall complete the assessment and make up the assessor's official copy of the land and personal property books in time to submit the same to the board of equalization and review not later than February 1 of the tax year. The assessor shall, as soon as practicable after the levy is laid, extend the levies on the land and personal property books, and shall forthwith make three copies of the land books and two copies of the personal property books with the levies extended. One of the copies of the land books shall be delivered to the sheriff not later than June 7; one copy shall be delivered to the clerk of the county commission not later than July 1; and one copy shall be sent to the State Auditor not later than July 1. One of the copies of the personal property books shall be delivered to the sheriff and one copy shall be delivered to the clerk of the county commission on or before the same date fixed above for the delivery of the land books. The copies shall be official records of the respective officers. The assessor may require the written receipt of each of the officers for the copy. Before delivering any of the copies the assessor shall make and subscribe the following oath at the foot of each of them:

I, ......................, assessor of the county of ......................................,do solemnly swear, (or affirm) that in making the foregoing assessment I have to the best of my knowledge and ability pursued the law prescribing the duties of assessors and that I have not been influenced in making the same by fear, favor or partiality; so help me, God.

......................................................................

Assessor.

The officer administering the foregoing oath shall append thereto a certificate in substantially the following form:

Subscribed and sworn to before me, a ..................... for the County of ..................... and State of West Virginia, by ..............., assessor for said county, this the ...... day of .........., 20 ......

§11-3-20. False entries in property books.

If any assessor knowingly make a false entry, addition or recapitulation in the personal property book or landbook, or in any copy of either, he shall for every such offense forfeit $300.

§11-3-21. Violations where no penalty prescribed.

If any officer fail to perform any duty required of him by this chapter and there be no other penalty imposed by law for such failure, he shall forfeit for every such failure not less than $10 nor more than $50.

§11-3-22. Expenses of assessors.

The county court shall pay the necessary postage and express charges incurred by the assessor in the performance of his official duties.

§11-3-23. Alterations in property books.

After the copies of the landbook or personal property book have been verified and delivered, no alteration shall be made in them, or either of them, affecting the taxes of that year, except on the final order of a successful review or appeal from the assessment.

§11-3-23a. Informal review and resolution of classification, taxability and valuation issues.

(a) General. — Anytime after real or tangible personal property is returned for taxation, the taxpayer may apply to the assessor of the county in which the property was situated on the assessment date for information about the classification, taxability, or valuation of the property for property tax purposes for the tax year following the July 1 assessment date. A taxpayer who is not satisfied with the response of the assessor and wants to further pursue the matter shall follow the procedures set forth in this section.

(b) Classification or taxability. — A taxpayer who wants to contest the classification or taxability of property must follow the procedures set forth in §11-3-24a of this code.

(c) Valuation issues - property appraised and assessed by county assessor. —

(1) A taxpayer who is dissatisfied with the response of the assessor on a question of valuation and who receives a notice of increase in the assessed value of real property as provided in §11-3-2a of this code, or a notice of increase in the assessed value of business personal property as provided in §11-3-15b of this code, who disagrees with the assessed value stated in the notice, may use the informal review process specified in this article if the taxpayer decides to challenge the assessed value.

(2) A taxpayer may apply for relief to the county commission sitting as a Board of Equalization and Review pursuant to §11-3-24 of this code, or to the Office of Tax Appeals not later than February 20 of the tax year by filing a written protest with the clerk of the county commission or the Office of Tax Appeals that identifies the amount of the assessed value the taxpayer believes to be in controversy and states generally the taxpayer’s reason or reasons for filing the protest. The board or the Office of Tax Appeals shall then set a date and time to hear the taxpayer’s protest.. The taxpayer shall timely pay first and second half installment payments of taxes levied for the current tax year on or before they become due and that any reduction in assessed value that is administratively or judicially determined in a decision that becomes final will result in a credit being established against taxes that become due for a tax year subsequent to the tax year in which the decision becomes final, except as otherwise stated in the decision or as otherwise provided in this article. In the event the Board of Equalization and Review adjourns sine die before February 20 of the tax year, a taxpayer may file its written protest and the acknowledgment described in this subdivision with the Office of Tax Appeals. If a taxpayer fails to provide its written protest on or before February 20, and the Board of Equalization and Review unilaterally increases the assessed value subsequent to that date, the taxpayer may file a written protest and the acknowledgment described in this subdivision with the Office of Tax Appeals.

(d) Valuation issues. — property appraised by Tax Commissioner and assessed by county assessor. -

(1) A taxpayer who receives a notice of tentative appraised value of natural resource property or industrial property from the Tax Commissioner pursuant to §11-6K-1 et seq. of this code.

(2) A taxpayer may apply for relief to the county commission sitting as a board of equalization and review pursuant to §11-3-24 of this code or to the Office of Tax Appeals no later than February 20 of the tax year by filing a written protest with the clerk of the county commission or to the Office of Tax Appeals that identifies the amount of the assessed value the taxpayer believes to be in controversy and states generally the taxpayer’s reason or reasons for filing the protest. The board or the Office of Tax Appeals shall then set a date and time to hear the taxpayer’s protest. The taxpayer shall timely pay first and second half installment payments of taxes levied for the current tax year on or before they become due and that any reduction in assessed value that is administratively or judicially determined in a decision that becomes final will result in a credit being established against taxes that become due for a tax year subsequent to the tax year in which the decision becomes final, except as otherwise stated in the decision or as otherwise provided in this article. In the event the Board of Equalization and Review adjourns sine die before February 20 of the tax year, a taxpayer may file its written protest and the acknowledgment described in this subdivision with the Office of Tax Appeals. If a taxpayer fails to provide its written protest on or before February 20, and the Board of Equalization and Review unilaterally increases the assessed value subsequent to that date, the taxpayer may file a written protest and the acknowledgment described in this subdivision with the Office of Tax Appeals.

(e) The standard of proof which a taxpayer must meet at all levels of review and appeal under this section shall be a preponderance of the evidence standard.

§11-3-24. Review and equalization by county commission.

(a) The county commission shall annually, not later than February 1 of the tax year, meet as a board of equalization and review for the purpose of reviewing and equalizing the assessment made by the assessor. The board shall not adjourn for longer than three business days at a time, not including a Saturday, Sunday or legal holiday in this state, until this work is completed. The board may adjourn sine die anytime after February 15 of the tax year and shall adjourn sine die not later than the last day of February of the tax year.

(b) At the first meeting of the board, the assessor shall submit the property books for the current year, which shall be complete, except that the levies shall not be extended. The assessor and the assessor’s assistants shall attend and render every assistance possible in connection with the value of property assessed by them.

(c) The board shall proceed to examine and review the property books, and shall add on the books the names of persons, the value of personal property and the description and value of real estate liable to assessment which was omitted by the assessor. The board shall correct all errors in the names of persons, in the description and valuation of property, and shall cause to be done whatever else is necessary to make the assessed valuations comply with the provisions of this chapter. But in no case shall any question of classification or taxability be considered or reviewed by the board.

(d) If the board determines that any property or interest is assessed at more or less than 60 percent of its true and actual value as determined under this chapter, it shall fix it at 60 percent of its true and actual value: Provided, That no assessment shall be increased without giving the taxpayer at least five days’ notice, in writing, of the intention to make the increase and no assessment shall be greater than 60 percent of the true and actual value of the property.

(e) Service of notice of the increase upon the taxpayer shall be sufficient, or upon his or her agent or attorney, if served in person, or if sent by registered or certified mail to the property owner, his or her agent, or attorney, at the last known mailing address of the person as shown in the records of the assessor or the tax records of the county sheriff. If such person cannot be found and has no last known mailing address, then notice shall be given by publication thereof as a Class I legal advertisement in compliance with the provisions of §59-3-1, et seq. of this code and the publication area shall be the county. The date of the publication shall be at least five days, not including a Saturday, Sunday or legal holiday in this state, prior to the day the board acts on the increase. When the board intends to increase the entire valuation in any one tax district by a general increase, notice shall be given by publication thereof as a Class II-0 legal advertisement in compliance with the provisions of §59-3-1, et seq. of this code and the publication area shall be the county. The date of the last publication shall be at least five days, not including a Saturday, Sunday or legal holiday in this state, prior to the meeting at which the increase in valuation is acted on by the board. When an increase is made, the same valuation shall not again be changed unless notice is again given as provided.

The clerk of the county commission shall publish notice of the time, place, and general purpose of the meeting as a Class II legal advertisement in compliance with the provisions of §59-3-1, et seq. of this code and the publication area shall be the county. The expense of publication shall be paid out of the county treasury.

(f) Any person who receives notice as provided in subsection (e) of this section may appear before the board at the time and place specified in the notice to object to the proposed increase in the valuation of taxpayer’s property. After hearing the board’s reason or reasons for the proposed increase, the taxpayer may present his or her objection or objections to the increase and the reason or reasons for the objections.

(g) The board may approve an agreement signed by the taxpayer or taxpayer’s representative and the assessor, and by a representative of the Tax Commissioner when the property is industrial property or natural resources property, that resolves a valuation matter while the land and personal property books are before the Board for Equalization and Review.

(h) If any person fails to apply for relief at this meeting, he or she shall have waived the right to ask for correction in the assessment list for the current year, and shall not thereafter be permitted to question the correctness of the list as finally fixed by the board, except on appeal to the Office of Tax Appeals, or as otherwise provided in this article.

(i) After the board completes the review and equalization of the property books, a majority of the board shall sign a statement that it is the completed assessment of the county for the tax year. Then the property books shall be delivered to the assessor and the levies extended as provided by law.

(j) A taxpayer who elects to have a hearing before the Board of Equalization and Review may appeal the board’s order to the Office of Tax Appeals.

(k) The standard of proof which a taxpayer must meet at all levels of review and appeal under this section shall be a preponderance of the evidence standard.

§11-3-24a. Protest of classification or taxability to assessor; appeal to Tax Commissioner, appeal to Office of Tax Appeals.

(a) At any time after property is returned for taxation, and up to and including the time the property books are before the county commission sitting as a board of equalization and review, any taxpayer may apply to the assessor for information regarding the classification and taxability of the taxpayer’s property. In case the taxpayer is dissatisfied with the classification of property assessed to the taxpayer or believes that the property is exempt or otherwise not subject to taxation, the taxpayer shall file objections in writing with the assessor. The assessor shall decide the question by either sustaining the protest and making proper corrections, or by stating, in writing if requested, the reasons for refusal to grant the protest.

(b) The assessor may, and if the taxpayer requests, the assessor shall, certify the question to the State Tax Commissioner in a statement sworn to by both parties, or if the parties are unable to agree, in separate sworn statements, giving a full description of the property and any other information which the Tax Commissioner requires. The Tax Commissioner shall prescribe forms on which the question shall be certified and the Tax Commissioner may pursue any inquiry and procure any information necessary for the disposition of the issue.

(c) The Tax Commissioner shall, as soon as possible on receipt of the question, but in no case later than February 28 of the assessment year, instruct the assessor as to how the property shall be treated. The instructions issued and forwarded by mail to the assessor shall be binding upon the assessor, but either the assessor or the taxpayer may apply to the Office of Tax Appeals within 30 days after receiving written notice of the Tax Commissioner’s ruling for review of the question of classification or taxability.

(d) The amendments to this section enacted in the year 2010 apply to classification and taxability rulings issued for taxes levied after December 31, 2011.

(e) The standard of proof which a taxpayer must meet at all levels of review and appeal under this section shall be a preponderance of the evidence standard.

§11-3-24b. Board of Assessment Appeals.

[Repealed.]

§11-3-25. Relief in circuit court against erroneous assessment.

[Repealed.]

§11-3-25a. Payment of taxes that become due while appeal is pending.

(a) All taxes levied and assessed against the property for the year on which a protest or an appeal has been filed by the taxpayer as provided in §11-3-24 or §11-3-24a of this code shall be paid before they become delinquent. If the taxes are not paid before becoming delinquent, the governing body having jurisdiction of the appeal, as appropriate, shall dismiss the appeal unless the delinquent taxes and interest due are paid in full within 30 days after taxes for the second half of the tax year become delinquent.

(b) In the event the order of a court or other governing body becomes final and the order results in an overpayment of taxes levied for the tax year that have been paid to the sheriff, the amount of the overpayment shall be refunded to the taxpayer if the overpayment is $25,000 or less within 30 days after the time for appealing the decision or order expires or, if the decision or order is appealed, within 30 days of the date the appeals court or other governing body turns down the appeal. If the overpayment is more than $25,000, a credit in the amount of the overpayment shall be established by the county sheriff and allowed as a credit against taxes owed up to the following two tax years: Provided, That the county commission may elect to refund the amount of overpayment rather than having a credit established as provided in this section: Provided, however, if any portion of the overpayment remains unused after the date on which taxes payable for the second half of the second tax year following the tax year of the overpayment become delinquent, that portion shall be refunded to the taxpayer by the county sheriff no later than 30 days after that date, or 30 days from the date that the order becomes final, whichever date occurs later. Whenever an overpayment is refunded or credited under this section, the county shall pay interest at the rate established in §11-10-17 and §11-10-17a of this code  for overpayments of taxes collected by the Tax Commissioner, which interest shall be computed from the date the overpayment was received by the sheriff to the date of the refund check or the date the credit is actually taken against taxes that become due after the order of the court becomes final.

§11-3-26. Contents and effect of order granting relief.

Whenever the circuit court, on appeal, shall grant relief to any such applicant against the taxes, or any part of them, assessed against him either on the land or the personal property books, an order shall be made by such court exonerating such applicant from the payment of so much of such taxes as are erroneously charged against him if the same have not been paid; and if paid, that the sum so erroneously charged be refunded to him Such order, delivered to the assessor, sheriff or other collecting officer shall restrain him from collecting so much as is erroneously charged, and, if the same has been already collected, shall compel him to refund the money, if such officer has not already paid it into the treasury, and in either case, when indorsed by the person exonerated, it shall be a sufficient voucher to entitle the officer to a credit for so much in his settlement, which he is required to make. If what was erroneously charged has been paid into the state Treasury, the order of the circuit court, attested by its clerk, shall entitle the claimant to a warrant on the state Treasury for the amount thereof, if application for the same be made to the Auditor within one year after the date of such order.

§11-3-27. Relief in county commission from erroneous assessments.

(a) Any taxpayer, or the prosecuting attorney or Tax Commissioner, upon behalf of the state, county and districts, claiming to be aggrieved by any entry in the property books of the county, including entries with respect to classification and taxability of property, resulting from a clerical error or a mistake occasioned by an unintentional or inadvertent act as distinguished from a mistake growing out of negligence or the exercise of poor judgment, may, within one year from the time the property books are delivered to the sheriff or within one year from the time such clerical error or mistake is discovered or reasonably could have been discovered, apply for relief to the county commission of the county in which such books are made out: Provided, That upon the discovery of any such clerical error or mistake by the sheriff or assessor, or either officer having knowledge thereof, the sheriff or assessor shall initiate an application for relief from the erroneous assessment on behalf of the taxpayer or cause notice to be sent to any taxpayer affected by the clerical error or mistake by first-class United States mail advising the taxpayer of the right to make application for relief from the erroneous assessment. Before the application is heard, the taxpayer shall give notice to the prosecuting attorney of the county, or the state shall give notice to the taxpayer, as the case may be. The application, whether by the taxpayer or the state, shall have precedence over all other business before the court; but any order or judgment shall show that either the prosecuting attorney or Tax Commissioner was present defending the interests of the state, county and districts: Provided, however, That the provisions of this section shall not be construed as giving county commissions jurisdiction to consider any question involving the classification or taxability of property which has been the subject matter of an appeal under the provisions of section twenty-four-a of this article; and any other such clerical error or mistake involving the classification or taxability of property, may be corrected by the county commission under the provisions of this section only when approved, in writing, by the county assessor.

(b) In the event it is ascertained that the taxpayer is entitled to relief, any excess taxes already paid shall be refunded and, if charged but not paid, the applicant shall be released from the payment of such excess: Provided, That in the event a mistake or error is discovered more than one year after the property books for the year or years in question are delivered to the sheriff, any relief granted to the taxpayer shall be in the form of a credit against taxes owing for up to the following two years: Provided, however, That if there are insufficient future taxes to credit or if the sheriff or county commission determines that a refund is appropriate, then the sheriff or county commission shall refund the uncredited balance to the taxpayer.

(c) Whenever any correction is made by the county commission, the clerk shall certify copies of the order to the Auditor, sheriff and assessor, and in the case of real estate, the assessor shall thereupon make a correction in accordance with the order in his or her landbook for the next year. Any such order delivered to the sheriff or other collecting officer shall restrain him or her from collecting so much as is erroneously charged against the taxpayer, and, if already collected, shall compel him or her to refund the money if such officer has not already paid it into the treasury. In either case, when endorsed by the person exonerated, it shall be sufficient voucher to entitle the officer to a credit for so much in his or her settlement which he or she is required to make. If the applicant is the state, the order certified to the sheriff shall show the correct amount of taxes due the state, county and districts and shall be sufficient to authorize collection in the same manner as for other state, county and district taxes.

§11-3-28. Definitions.

The words "tax," "taxes," "taxable," and "taxation," in this chapter, shall be deemed to include county, district, independent school district and municipal corporation levies in all cases not inconsistent with the context.

§11-3-29. Levies to be based only on values ascertained.

Taxes for county, district, independent school district and municipal purposes shall be levied only upon the value of property ascertained under the provisions of this chapter.

§11-3-30. Exception.

Notwithstanding the provisions of sections one, two, six, twelve, fifteen, nineteen, twenty-four and twenty-four-a of this article, the provisions of this article as of January 1, 1961, shall govern assessment generally for the assessment year 1961.

§11-3-31. Generally applied, and usual and customary practices and procedures utilized by assessors prior to July 2, 1982; limit of liability.

To the extent that any generally applied, usual and customary practice or procedure utilized by the assessors of the several counties prior to July 2, 1982, for the return, listing, appraisement and assessment of property for ad valorem property taxation did not violate the then existing statutory law, interpretations thereof by the courts or the State Tax Commissioner, or regulations promulgated under such statutory law, and to that extent only, the use of such practice or procedure, in good faith, shall not be the sole basis for, or be considered in, the removal of any public officer or the imposition of any civil liability upon such official. The State Tax Commissioner shall be competent to offer testimony as to whether the practice or procedure utilized was generally applied, was a usual and customary practice among the several counties, and may offer testimony regarding formal or informal interpretations, rules or practice employed by him and his predecessors in office at the time such alleged usual and customary practice or procedures were utilized in several counties.

§11-3-32. Effective date of amendments.

(a) Unless specified otherwise in this article, all amendments to this article adopted in the year 2010 apply to the assessment years beginning on or after July 1, 2011.

(b) Unless specified otherwise in this article, all amendments to this article adopted in the year 2021 apply to the assessment years beginning on or after July 1, 2022.

§11-3-33. Rules.

The Tax Commissioner is hereby authorized to promulgate emergency rules and other rules in accordance with the provisions of article three, chapter twenty nine-a of this code as necessary or convenient for administration and interpretation of this article.

§11-4-1. Land books to contain separate lists; entry of town lots; entry separately for districts.

The assessor shall make out the land books, including all extensions, in such form as the Tax Commissioner may prescribe. Such land books shall contain separate lists for the different tax districts and separate lists for the municipalities of the county. There shall, for the purpose of taxation, be entered on the land books the town lots in the alphabetical order of the names of the owners thereof in the list arranged for them, and the assessor shall designate such list as "town (or city) lots of the town (or city) of __________________." There shall also be entered in like alphabetical order in the separate lists for the tax districts, the tracts of land, the whole or greater part of which is situated therein; but no tract or lot of land shall be entered in more than one of such lists, and no part of any tract or lot of land which does not lie within the incorporated limits of a town shall be entered in the list or charged with municipal taxes for such town.

§11-4-2. Form of landbooks.

The Tax Commissioner shall prescribe a form of landbook and the information and itemization to be entered therein, which shall include separate entries of: (1) All real property or whatever portion thereof in square feet that is owned, used, and occupied by the owner exclusively for residential purposes, including mobile homes, permanently affixed to the land and owned by the owner of the land; (2) all real property or whatever portion thereof in square feet that is owned by an organization that is exempt from federal income taxes under 26 U. S. C. §501(c)(3) or 501 (c)(4) and used primarily and immediately for a purpose that is exempt from tax under §11-3-9 of this code; (3) all real property or whatever portion thereof in square feet that is owned by an organization that is exempt from federal income taxes under 26 U. S. C. §501(c)(3) or 501 (c)(4) and that is not used primarily and immediately for a purpose that is exempt from tax under §11-3-9 of this code; (4) all farms including land used for agriculture, horticulture, and grazing occupied by the owner or bona fide tenant; (5) and all other real property. For each entry there shall be shown: (A) The value of land, the value of buildings, and the aggregate value; (B) the character and estate of the owners, the number of acres or lots, and the local description of the tracts or lots; and (C) the amount of taxes assessed against each tract or lot for all purposes.

§11-4-3. Definitions.

(a) For the purpose of giving effect to the Tax Limitations Amendment, this chapter shall be interpreted in accordance with the following definitions, unless the context clearly requires a different meaning:

“Owner” means the person, as defined in §2-2-10 of this code, who is possessed of the freehold, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust securing a debt or liability is considered the owner until the mortgagee or trustee takes possession, after which the mortgagee or trustee shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title is also considered the owner. Owner includes the corporation or other organization possessed of the freehold of a qualified continuing care retirement community. Owner includes homeowners who have vacated their owner-occupied, single-family, residential property, which was their most recent primary residence, and have listed that property for sale with a licensed real estate broker, and have not leased said property to anyone since vacating said property. Owner means the person who is using and occupying all or a portion of a parcel of real estate the freehold of which is possessed by a family trust: Provided, That the parcel is used and occupied by the owner thereof exclusively for residential purposes.

“Used and occupied by the owner thereof exclusively for residential purpose” means actual habitation by the owner, or the owner’s spouse, an immediate family member of the owner, or a qualified resident of all or a portion of a parcel of real property as a place of abode to the exclusion of any commercial use: Provided, That if the parcel of real property was unoccupied at the time of assessment and either:

(A) Was used and occupied by the owner thereof exclusively for residential purposes on July 1, of the previous year assessment date;

(B) Was unimproved on July 1, of the previous year but a building improvement for residential purposes was subsequently constructed thereon between that date and the time of assessment; or

(C) Is retained by the property owner for noncommercial purposes and was most recently used and occupied by the owner, or the owner’s spouse, or an immediate family member of the owner as a residence and the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident in a nursing home, personal care home, rehabilitation center or similar facility, then the property shall be considered “used and occupied by the owner thereof exclusively for residential purpose”: Provided, That nothing herein contained permits an unoccupied or unimproved property to be considered “used and occupied by the owner thereof exclusively for residential purposes” for more than one year unless the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility. Except in the case of a qualified continuing care retirement community, if a license is required for an activity on the premises or if an activity is conducted thereon which involves the use of equipment of a character not commonly employed solely for domestic as distinguished from commercial purposes, the use may not be considered to be exclusively residential. I Qualified continuing care retirement community uses attendant to the functioning of the qualified continuing care retirement community, including, without limitation, cafeteria, laundry, personal and health care services, may not be considered commercial uses even if such activity or equipment requires a separate license or payment.

“Family member” means a person who is related by common ancestry, adoption or marriage including, but not limited to, persons related by lineal and collateral consanguinity.

“Family trust” means a trust the beneficiaries of which include only the person who is possessed of the freehold and his or her immediate family members.

 "Immediate family member" means a spouse, child, sibling, parent, grandparent, or grandchild. This includes stepparents, stepchildren, stepsiblings, sons-in-law, daughters-in-law, fathers-in-law, mothers-in-law, brothers-in-law, sisters-in-law, and adoptive relationships.

 “Farm” means a tract or contiguous tracts of land used for agriculture, horticulture or grazing and includes all real property designated as “wetlands” by the United States Army Corps of Engineers or the United States Fish and Wildlife Service.

“Occupied and cultivated” means subjected as a unit to farm purposes, whether used for habitation or not, and although parts may be lying fallow, in timber or in wastelands.

 “Qualified continuing care retirement community” means a continuing care retirement community:

(A) Owned by a corporation or other organization exempt from federal income taxes under the Internal Revenue Code;

(B) Used in a manner consistent with the purpose of providing housing and health care for residents; and

(C) Which receives no Medicaid funding under the provisions of §9-4B-1 et seq. of this code. For purposes of this section, a continuing care retirement community is a licensed facility under the provisions of §16-5C-1 et seq. and §16-5D-1 et seq. of this code at which independent living, assisted living, and nursing care, if necessary, are provided to qualified residents.

“Qualified resident” means a person who contracts with a qualified continuing care retirement community to reside therein, in exchange for the payment of an entrance fee or deposit, or payment of periodic charges, or both.

(b)(1) Amendments to this section enacted during the 2006 regular session of the Legislature shall have retroactive effect to and including July 1, 2005, and shall apply in determining tax for tax years beginning January 1, 2006, and thereafter.

(2) Amendments to this section enacted during the 2007 regular session of the Legislature shall take effect on July 1, 2007.

(3) Amendments to this section enacted during the 2024 regular session of the Legislature shall take effect on July 1, 2024.

§11-4-4. Making out land books; using copy of last landbook; correcting errors.

The landbooks for every county shall be made out by the assessor of such county. In making such landbooks in each year such officer shall be governed, as far as is proper, by the copy of the landbooks last made out in his county. But he shall correct errors and mistakes which he may have made in any such landbooks as to the names of persons properly chargeable with taxes on any tract or lot of land therein, and enter and charge the same with taxes thereon to the person or persons properly chargeable therewith, whether such correction be rendered necessary by the conveyance of such tract or lot by the person last charged with taxes thereon or otherwise. He shall also correct all errors and mistakes he may find in such landbooks as to the local description thereof, and all clerical errors of every sort which he may find therein.

§11-4-5. Information to be obtained from landowners by assessor; corrections in landbook of previous year.

The assessor and his deputies shall annually, when listing and assessing personal and real property, make diligent inquiry of every resident landowner, and of the resident agents of any nonresident landowner, as to the number of acres of land owned by them, the number of acres in each tract, and the number of town lots owned by them, and the value per acre of each tract and the local description thereof, and the value and location of the town lots.

They shall determine the nature and extent of the interest of the owner, whether in fee and undivided or otherwise, and the character of use to which the property is put, whether residential or agricultural or otherwise. They shall also inquire of such owners or agents whether the entries charged against them in the landbooks of the previous year are correct, whether any part thereof ought to be transferred to any other person, and if so to whom, and the nature of the evidence to authorize such transfer; also, whether any other land in the county ought to be charged to such resident or nonresident, and whether the description given to any tract of land or town lot in the book of the previous year is incorrectly given. It shall be the duty of such owners and agents to answer all of such inquiries on oath. The assessor shall provide for himself and for each one of his deputies, a copy of so much of the landbook of the previous year as contains a list of the land in the tax districts severally apportioned to them, and shall note in such copies such changes and corrections as ought to be made in the landbook of the previous year, according to the information obtained. The deputy assessor shall report any such changes and corrections, as appear to them should be made, to the assessor at some of the stated meetings provided for. The assessor shall make such use of the information so obtained as he can properly make, consistent with the other provisions of this chapter, in making out the landbook of the county for the current year.

§11-4-6. Transfers on books.

Land which has been properly charged to one person upon the landbook for any assessment year shall not afterwards, within that assessment year, be transferred on such book to another person.

§11-4-7. Entry of lands acquired from different sources.

If the owner of a tract or lot of land has derived title thereto by several conveyances from the same person, or from different persons, such tract or lot shall be entered and charged with taxes on the land books as a whole, and not in different parcels.

§11-4-8. Lists of transfers of title for assessors.

The clerk of the county court shall, not later than the tenth day of each and every month, make out and deliver to the assessor a certified list showing all the transfers of title of land made in his county during the preceding month; such list shall show whether the transfer was made by will or by deed of conveyance, or by judgment or decree, the names of the devisors and devisees, the names of the grantors and grantees and the names of the parties in favor of and against whom such judgment or decree was rendered, with the title of the cause, the nature of the estate transferred, the character of interest in the land conveyed, the quantity and location of the land or interest transferred, and, if a part of a tract, of what tract it was a part when the whole tract was transferred, and reference to the book and page showing such transfer. From the list thus furnished, the assessor shall make the necessary changes in the land books for the current year, and shall value each tract of land or interest therein so transferred, at its true and actual value according to the rule established in this chapter. The clerk shall also, not later than the tenth day of each and every month, make out a list of all lands, if any, lying in another county and devised by wills recorded in his office during the preceding month, and not before reported, stating in such list the date of the will in each case, when admitted to record, the names of the devisor and the devisee, and the description of the land devised; and, upon completion, and not later than the tenth day of each and every month, the clerk shall deliver or mail such list to the assessor of the county or counties where such lands are situated.

§11-4-9. Assessment of different estates; undivided interests.

Whenever in chapter eleven or chapter thirty-seven, the words land or lands or tract or tracts of lands, or lot or lots, or real estate, or part or parcel of a tract or lot, or estate or estates in land or aliquot part of land, are used, they shall be read to include an undivided interest in land and an undivided interest in any estate in land, and such interests may be by the assessor charged to such owner on the landbooks separately to each owner according to his interest therein and shall be subject to all the provisions of chapters eleven and thirty-seven in relation to assessments, advertisements, delinquencies, sales, forfeitures, redemptions and tax deeds as now apply to entire tracts, so far as the state is concerned. Each such undivided interest so separately assessed shall be considered as if such undivided interest were a separate tract. And any such assessment of an undivided interest heretofore made upon which the taxes shall have been duly paid, and any return of delinquency or sale for taxes based on such an assessment, shall, so far as the state is concerned, be treated and held as valid and sufficient; and in such case any and all title which has become vested in the state because of any forfeiture or sale of any such interest when so assessed shall be vested in the party who would have had the title and been entitled to said interest if this section had been valid and in force when such assessment was made, but such validation shall not extend to the deprivation of title of such a third party as shall have meanwhile acquired valid title thereto by virtue of other provisions of law. Upon proper showing to the assessor, such an undivided interest shall be entered on the landbooks at the instance of the owner or the state and be back taxed as if it were a separate tract; but any person whose land or undivided interest therein is delinquent or as to which there is a purported assessment on which the taxes are unpaid for any of the years 1926 to 1934, inclusive, shall be estopped from pleading at law or in equity any defect in the assessment, advertisement, delinquency, sale, forfeiture, redemption or tax deed so long as the taxes or any part of same on such land or undivided interest therein are unpaid. When any person becomes the owner of the surface, and another or others become the owner of the coal, oil, gas, ore, limestone, fireclay, or other minerals or mineral substances in and under the same, or of the timber thereon, the assessor shall assess such respective estates, or any undivided interest therein, to the respective owners thereof, or to groups of same requesting such group assessment, at their true and actual value, according to the rule prescribed in this chapter. When any person or persons are, or become, the owner or owners of any undivided interest or interests in land, or in the surface, coal, oil, gas, ore, limestone, fireclay, timber or other estate or estates therein, the owner or owners of such undivided interest or interests shall have their land, or estate or interest or undivided interest in such land, or in such estate in land, entered on the landbooks of the county in which it or a part of it is situated, and cause himself to be charged with taxes legally levied on such interest or undivided interest, but may on request of such owner to the assessor, and without consent or acquiescence of the other joint owner or owners of the other undivided interest or interests have such undivided interest or interests assessed to him or them separately and independently of the other undivided interest or interests therein; and all such assessments of undivided interests heretofore entered on the assessment books are hereby validated insofar as the same are now in, or liable to vest in the state. The words "owner or owners" as used in this section shall include any claimant or claimants who now appear as such on the assessment books or are entitled to have the land or interest in land or interest in an estate in land claimed by him or them to be entered and assessed for taxation. All acts and parts of acts relating to the taxation, delinquency, sale, procuring of tax deeds by individual purchasers, advertisement, forfeiture and redemption of lands or real estate shall also apply with the same force to said estates in land, and any cotenant, coparcener or joint tenant, in the absence of satisfactory proof of a fiduciary relationship, shall be entitled to acquire by tax purchase for his own account the interest of any, or all of his coowners in any tract, lot, estate or parcel of land, without being required to hold the same under any constructive trust; and the burden of proof shall rest on any person alleging such a constructive trust, and such a constructive trust shall prima facie be nonexistent.

In any tax sale by a sheriff, school commissioner or commissioner of forfeited lands, only the tract, lot, estate, interest or undivided interest proceeded against in that particular instance shall pass to the purchaser, so far as the state is concerned, so that any other estate, interest or undivided interest in the same tract not embraced in such sale shall not be affected by such sale, nor shall the title, or rights of the owners or claimants of such other estate, interest, or undivided interest in land be affected thereby.

When for any year or years after 1925, the undivided interest of any person shall not have been entered and taxed on the landbooks, or where such interest may have been assessed, and taxes thereon for any one or more, or all, of said years shall not have been paid to the state, such person, or his successor in title, or a coowner of same, shall be entitled to redeem his and/or any or all of his coowners' interest from the state, so far as the state has title or claim thereto by reason of such nonentry or nonpayment of taxes, and the same has not been vested in third persons under the laws of West Virginia, upon application to the Auditor in writing, and payment of such amount as the Auditor shall find to be due the state on account of taxes that should have been paid; and in such cases the Auditor shall issue certificates of redemption in manner and form provided by law for redemption of land, and such redemption shall thereafter estop the state from asserting any claim to such interest on account of such nonentry or nonpayment of taxes: Provided, however, That redemption under this section shall be made prior to the time the state shall sell the same, in any proceeding for the purpose, or before January 1, 1939, whichever first occurs; but the failure of any person, owning, claiming, or having the right to redeem any other undivided interest in the land, or estate in land, to redeem as aforesaid, shall in no wise affect, impair the right of, or preclude any coowner from redeeming his interest under this section. The owner may be permitted by the Auditor, upon application in writing, to redeem said land or estate in land or his undivided interest therein, to the extent that the title thereto has not passed to strangers, by payment of such an amount as the taxes on same respectively would have been with interest and penalties. If one coowner redeems the undivided interest of one or more of his coowners by paying the taxes on same as above, such coowner so redeeming shall be subrogated to the lien of the state for so much of such taxes as should have been paid by such other coowner against the interest of such other coowner in such property. He shall lose his right to such lien, however, unless within one year after such redemption by him he shall file with the clerk of the county court his claim in writing against such other coowner, accompanied by the tax receipt or a duplicate thereof. The clerk shall docket such claim on the judgment lien docket in his office and properly index the same. Such lien may be enforced as other liens are enforced.

Nothing in this section shall affect the right of any party to any action or suit heretofore finally adjudicated, or that may be now pending or that may be instituted on or before July 1, 1935.

§11-4-10. Land and buildings assessed separately; town lots; back taxing of omitted buildings.

Land and the buildings or structures erected thereon shall be assessed separately and the value of each entered separately in the landbooks. Land, except town lots, shall be valued by the acre, and town lots shall be designated by the number of the lot and the name of the street on which it fronts, provided the lots be numbered and the streets of the town designated by name. Every assessor shall, in each year, in arriving at the value of the buildings, including mobile homes used for residential purposes permanently affixed to the land and owned by the owner of the land, take into account any improvements or changes affecting the value of such buildings. If the assessor shall discover any building which has been omitted from the landbook for any previous years, he may back tax the same in the same manner and to the same extent as in the case of personal property.

§11-4-11. New buildings.

No new building, mobile home used for residential purposes permanently affixed to the land and owned by the owner of the land, addition or improvement shall be assessed until it is so far finished as to be fit for use, but the material in the same shall be entered in the personal property books and assessed as provided by this chapter.

§11-4-12. Assessment of decedent's lands.

When the owner dies intestate his undivided real estate may be listed to his heirs, without designating any of them by name, until division of same and each heir shall be liable for the whole tax assessed upon such land while it is so listed; but when he pays the same he may recover of the others their proper proportion of the amount so paid, and the proportion thereof for which such other or others are liable shall be a lien on the interest owned by him or them in such lands; and such liens, when the amount so paid exceeds $20 in all, may be enforced in a court of equity. When the owner has devised the lands or a freehold estate therein absolutely, such land shall be charged to the devisee. If under the will the land is to be sold, it shall be charged to the decedent's estate and the assets in the hands of the personal representative shall be liable for the taxes until a sale and conveyance thereof be made.

§11-4-13. Lands purchased at tax sale for state or by an individual.

Real estate purchased for the state at a sale for taxes shall not be omitted from the landbooks but the officer whose duty it is to make out the same, shall duly enter, classify and value annually such real estate, as though no such sale had occurred, until such real estate is redeemed or otherwise disposed of by the state, but no taxes shall be extended thereon while the same remains the property of the state; and there shall be noted on the landbooks by the officer whose duty it is to make out the same, opposite the name of the former owner, the time when the same was purchased by the state and for what year's taxes sold, and such officer shall continue such memorandum in the landbooks for succeeding years and until such real estate is redeemed or otherwise disposed of by the state; the Auditor shall also keep a record of such purchase. When real estate so purchased has been redeemed the officer whose duty it is to make out the landbooks shall note the fact therein for the year in which the redemption was made and shall classify and value the same at its true and actual value according to the rule prescribed in this chapter, and taxes shall thereafter be assessed and extended against the same; the Auditor shall, in the first month of the assessment year, certify to the officer whose duty it is to make out the landbooks, a list of such lands in his county as have been so redeemed within the preceding year. When real estate is sold to an individual for taxes, the officer whose duty it is to make out the landbooks shall continue to enter, classify and value such real estate annually in the landbooks in the name of the former owner until the purchaser obtains a deed therefor; such officer shall then enter the real estate so purchased in the name of the purchaser and shall classify and value the same according to the rule prescribed by this chapter. The assessor in listing, classifying and valuing property sold to the state, shall list the same alphabetically in said property books in such manner, preferably at the end of the list for each district, that such valuation shall not be included in the totals certified to the levying bodies for levy purposes.

§11-4-14. Assessment of lands lying in more than one county.

Every tract of land of one thousand acres or less, lying in more than one county, may be entered for taxation on the land book of the county where the greater part thereof in value lies, but the entry thereof and payment of taxes thereon, in any county where any part thereof is situated, shall, for the time during which the same is so entered and paid, be a discharge of the whole of the taxes and levies charged and chargeable thereon. Every tract of land of more than one thousand acres, lying in two or more counties, shall, for the purpose of taxation, be entered and charged with all taxes in each tax district of the several counties in which any part of it is, to the extent, as near as may be, that the same lies in such district. When any such tract of more than one thousand acres is thus assessed, partly in one county and partly in another, the several officers of such counties whose duty it is to make out the landbooks of the respective counties shall value the part lying in his county without regard to the value of the whole tract, and he shall ascertain its value, as in other cases, according to the rule prescribed in this chapter.

§11-4-15. Assessment upon conveyance of part of tract lying in more than one county.

When land lying in more than one county has been assessed in one of such counties only, if the owner convey that portion, or any part thereof, lying in the county wherein the same is not assessed, such officer in such county shall enter the part so conveyed in the land books of his county, and shall assess it to its owner at its proper value according to the rule prescribed in this chapter. And such officer of the county in which the whole of such land has been previously assessed shall deduct the part so conveyed and assess the remainder according to its proper value.

§11-4-16. Assessment upon conveyance of part of tract lying in more than one district.

In like manner, when a tract or lot of land lies in more than one district, and the owner conveys any portion thereof situated in a district wherein such land was not assessed, the part so conveyed shall be thereafter entered in the proper district, and the proper value thereof ascertained, as in other cases, according to the rule prescribed in this chapter, and the quantity thereof shall be deducted from the entire tract or lot as it was before entered.

§11-4-17. Consolidation of contiguous tracts or mineral or timber interests.

Any owner of two or more contiguous tracts of land, or the surface of land, or of any estate in the coal, oil, gas, ore, limestone, fireclay, or other minerals or mineral substances, in and under the same, or of the timber thereon, situated in whole or in part in the same tax district of any county, may upon application to the county court of such county and duly showing the relative location of such tracts, their ownership and present description on the land book, have the same, by order of such court, consolidated with other like tracts or parts of tracts, and charged by aggregating the quantities thereof, so far as lying in the same tax district, as one tract upon the landbook of such county for the succeeding year and thereafter: Provided, That for the purpose of consolidation of lands or the surface of lands or any estate in the coal, oil, gas, ore, limestone, fireclay, or other minerals or mineral substances in and under the same, or of the timber thereon, on the landbooks, any tract heretofore charged separately thereon, whether as fee (by which is meant not only the estate of the owner therein, but also the entire body of the land), or as one or more mineral interests, or other interests herein specified, or surface, or timber only, may be divided, and the divisions thereof be charged separately or be consolidated with other like tracts or parts of tracts.

In every case of consolidation the order directing the consolidation to be made shall so describe the several properties consolidated as to enable the same to be therein identified as separate parcels or to be so identified by reference therein made to a recorded instrument, or recorded instruments, or both by description and reference to such instrument or instruments.

The officer whose duty it is to make out the landbooks, upon presentation to him of a certified copy of such order showing the consolidation or designation of such several tracts or parts of tracts of land, surface or timber, or estates in the coal, oil, gas, ore, limestone, fireclay, or other minerals or mineral substances herein mentioned, shall enter the same as one upon the landbook for the year next ensuing, and make a proper note opposite the last entry of each of such several tracts so consolidated or designated in whole or in part, referring to such order, and a like note opposite the entry of the tract so consolidated or designated. He shall value such tract at its proper value according to the rule prescribed in this chapter. Any such officer, failing to comply promptly with any of the several duties imposed by this section, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $25 nor more than $50: Provided, however, That this section shall not apply to any undivided interest in any estate in any land, coal, oil, gas, ore, limestone, fireclay, or other mineral substances in or under lands or of the timber on land.

§11-4-18. Division or consolidation of tracts for segregation.

In the manner prescribed in section seventeen of this article, the county court may, upon the application of the owner, divide, consolidate, or both, as the case may be, any tracts or lots for the purpose of entry upon the land books of the county. This shall apply solely to the segregation of real property according to the classification contemplated by the "Tax Limitation Amendment." No such division shall be made unless there is in actual fact a distinction in use, and unless the division requested is one which the owner would make for the separate conveyance of portions of the tract or lot, but in no case shall any single structure be divided and only contiguous tracts or lots shall be consolidated.

§11-4-19. Land taken for public road or railroad.

Any person through whose lands a public road has been or may hereafter be established according to law, or through whose lands a railroad company has acquired or may hereafter acquire a right-of-way, by purchase or condemnation, may have the number of acres so taken for such public road or railroad deducted from the whole number of acres in the tract of land, and if such deduction is made on account of land taken for a railroad, the amount so deducted shall be transferred and charged to the railroad company until such time as the railroad is constructed and assessed by the board of public works under the provisions of this chapter, and when such railroad is so assessed by the board of public works the land occupied by its right-of-way and assessed to it under the provisions of this section shall be stricken from the landbooks, and be no longer assessed under this section. The reduction, provided for in this section, shall be made only by the county court of the county wherein such land is assessed at the time the reduction is applied for, after ten days' notice in writing to the prosecuting attorney of such county and upon satisfactory proof of the number of acres in any such public road or railroad, and of the number of acres in the whole tract or tracts of land from which the deduction is desired to be made. If the reduction is made on account of land taken for a public road, such reduction shall continue only so long as the land is used as a public highway, after which time the officer, whose duty it is to make out the landbooks, shall increase the quantity of land in the tract by adding to it the number of acres included in that part of the public road running through such land, with the proper value thereof, which has ceased to be used as such public road. Any order made by the county court upon such application shall direct such officer to correct the landbooks according to the facts established by such order.

§11-4-20. Ferries.

The assessor shall, upon the best information he can obtain, ascertain for the purpose of taxation, the annual value of all ferries upon which a toll or fare is charged, located in his county, except such as are by law exempt from taxation; he shall value each of such ferries each year at ten times its annual value, and enter the same in the landbook in the name of the owner in the tax district wherein the same is located; and if such ferry is on a line dividing two counties, or two districts in the same county, one half of the value so ascertained shall be assessed in each county or district as the case may be.

§11-4-21.

Repealed.

Acts, 1981 Reg. Sess., Ch. 197.

§11-5-1. What personal property taxable.

All personal property belonging to persons residing in this state, whether such property be in or out of the state, and all personal property in the state, though owned by persons residing out of the state, shall be entered in the personal property book, and be subject to equal and uniform taxation, except as classified in section four, article eight of this chapter, unless especially exempted by law; but personal property of all classes, except as hereinbefore provided, belonging to the residents of this state, which is actually and permanently located in another state, and by the laws of such other state is subject to taxation and is actually taxed in such other state, shall not be entered on the personal property book, or be taxed in this state. But the shares of capital stock owned by residents of this state in corporations actually located in other states, and whose property is taxed by the laws of such other state, shall not be required to be listed for taxation. Any person who at any time before the assessment year transfers by loan, deposit or gift, any notes, bonds, bills and accounts receivable, stocks and other intangible personal property, which are subject to taxation to anyone, who does not return a list of taxation as of the day on which the assessment year commences including such property, transfers, loans, deposits or gifts, if made with intention of evading taxation, shall be deemed and treated as illegal and fraudulent and the assessor shall assess such property for taxation to the party who makes such transfers, loans, deposits or gifts as aforesaid.

§11-5-2. Personal property books.

In his personal property books the assessor shall enter the names and post-office addresses of the owners of personal property alphabetically arranged by districts, showing separately the values of:

(1) All tangible personal property employed exclusively in agriculture including horticulture and grazing;

(2) All products of agriculture (including livestock) while owned by the producer;

(3) All notes, bonds, bills and accounts receivable, stocks and any other intangible personal property;

(4) The total of one, two and three;

(5) All other tangible personal property.

The Tax Commissioner may prescribe such itemization and further information as he deems necessary. The assessor shall make the same number of copies and extend the levies in the same way as he does with the landbook.

§11-5-3. Definitions.

The words "personal property," as used in this chapter includes all fixtures attached to land, if not included in the valuation of such land entered in the proper landbook; all things of value, moveable and tangible, which are the subjects of ownership; all chattels real and personal; all notes, bonds, and accounts receivable, stocks and all other intangible property.

"Agriculture" means the cultivation of the soil, including the planting and harvesting of crops and the breeding and management of livestock.

"Horticulture" means plant production of every character except forestry.

"Grazing" means the use of land for pasturage.

"Products of agriculture" means those things the existence of which follows directly from the activity of agriculture, horticulture or grazing, including dairy, poultry, bee and any other similar products, whether in the natural form or processed as an incident to the marketing of the raw material.

"Producer" means the person who is actually engaged in the agriculture, horticulture and grazing which gives existence and fruition to products of agriculture as distinguished from the broker or middleman.

"Tax year" means the calendar year following the July first assessment day or, in the case of a public service business assessed pursuant to article six of this chapter, the calendar year beginning on the January first assessment day.

"While owned by the producer" means while title is in the producer as above defined.

"Employed exclusively" means that the preponderant and the sole gainful use is for the designated purpose.

§11-5-4. In what district personalty assessed.

Every person required by law to list personal property for taxation shall list the tangible personal property in the tax district wherein it is on the first day of the assessment year, and chattels real in the tax district wherein the land to which they relate is located; and he shall list for taxation in the tax district in which he resides the notes, bonds, bills, and accounts receivable, stocks and other intangible personal property subject to taxation belonging to himself or under his charge or control, whether the same, or the evidence thereof be in or out of the state; but capital, and intangible property (except real estate and chattels real) employed in any trade or business (other than agriculture) belonging to a company whether it is incorporated or not, or to an individual, shall be assessed for taxation in the tax district wherein the principal office for the transaction of the financial concerns pertaining to such trade or business is located; or, if there be no such office, then in the district where the operations are carried on. Goods and chattels and other tangible personal property not exempt from taxation which may not be assessed for taxation in the tax district where the same were on the first day of the assessment year, but which have been removed therefrom, shall be assessed in the tax district where the same were on the first day of the assessment year; but the assessment and payment of taxes in any county or district in any year shall exonerate the owner of such property in any other county or district for such year: Provided, That in cases of the assessment of leasehold estates a sum equal to the valuations placed upon such leasehold estates shall be deducted from the total value of the estate, to the end that the valuation of such leasehold estate and the remainder shall aggregate the true and actual value of the estate.

§11-5-5. Valuation of credits and investments.

The value of any credit, if the solvency of the party liable therefor be doubtful or if the claim be disputed, shall be estimated at its probable worth; if it be payable in anything but money, its probable value in money, to be fixed by the assessor, is to be listed; if a solvent credit bear interest which has not been paid, the amount of principal and interest, calculated up to the first day of the assessment year of the year for which the assessment is made shall be listed; but if it do not bear interest, and be not due, the interest for the time it has run from the first day of the assessment until it be due and payable, may be deducted. Investment, in notes, bonds, bills, stocks and other intangible property, shall be rated by the assessor at their market price, or if there be no known market price, then at their proper value, according to the rule prescribed in this chapter.

§11-5-6. Property or stock of corporations.

When the property, stock or capital of any company, whether incorporated or not, is assessed to such company, no person owning any share, portion or interest therein, shall be required to list the same or be assessed with the valuation thereof.

§11-5-7. Household furniture.

Nothing contained in this chapter shall be construed to require any person to furnish, or the assessor to take, a list of the several articles of such person's household and kitchen furniture, except as required under the provisions of section two of this article.

§11-5-8. Assessment of transients selling goods.

Any transient person desiring to offer or furnish for sale, either by auction or otherwise, any goods or merchandise not assessed for the purpose of taxation in any county in this state, shall apply to the assessor of the county in which such goods or merchandise is about to be offered or furnished for sale, and have the value thereof ascertained and assessed with taxes, as like property is valued and assessed, and shall, before selling any of such goods or merchandise, pay to such assessor the taxes levied for the current year. If at the time of such valuation and payment of taxes the levies for the current year shall not have been ascertained, the assessor shall assess such valuation according to the rate of taxation levied for the previous assessment year, for all purposes for which such goods or merchandise is liable to be assessed for the current year, in the place where they are to be offered or furnished for sale. If the amount thus ascertained and paid is afterward ascertained to be in excess of the taxes levied for the current year, he shall have such excess refunded to him The assessor shall at the time he so values such goods or merchandise and collects the taxes thereon, if his personal property book has not been completed and certified, enter such valuation therein, under the appropriate heading in the name of the owner of such goods or merchandise. If at the time of such valuation and collection of taxes thereon such personal property books shall have been completed and certified, he shall enter the same in the supplement to the copy of such book retained by him and in either event he shall furnish to the Auditor, to the clerk of the county court and to the municipality, if any, interested therein, respectively, certificates of such valuation and of the amount of taxes collected thereon by him The Auditor and such clerk shall preserve such certificates in their respective offices, and, if the entry of such valuation and assessment of taxes thereon shall not have been made in the personal property book before copies thereof have been certified, they shall also enter the amount of such valuation so certified to them in the supplements to their respective copies of such personal property book. The assessor shall deliver to such person a receipt for the amount of taxes paid by him stating therein the character of the goods or merchandise on which such taxes were paid, the value assessed thereon, and the amount of taxes and the year for which the same were paid. Such receipt shall be signed by the assessor and attested by the clerk of the county court, and when so signed and attested shall operate as a discharge to such person holding the same for any further liability for taxes in any county of the state on account of such goods or merchandise for that year; but it shall not relieve him from all liability for taxes on account of goods or merchandise which he has not reported to the assessor to be valued, and on which he has not paid the taxes as herein provided. The assessor shall report to the clerk of the county court all taxes collected by him under this and the preceding section, upon property assessed by him after he has completed and certified his personal property book, and it shall be the duty of such clerk to charge the same against him in the supplement to the personal property book filed with such clerk. Any such person who shall violate any of the provisions of this section shall be guilty of a misdemeanor and, shall be fined not less than $50 nor more than $500. The assessor shall apportion the taxes collected by him under the provisions of this section, and shall account therefor to the county, district and municipality entitled thereto, according to the rate levied for the current year for each of them. Any assessor who shall fail to perform the duty required of him by this section shall forfeit not less than $25 nor more than $100. If he shall fail to account for any taxes collected by him under the provisions of this section he shall be guilty of embezzlement, and shall, in addition to the foregoing penalty, be punished therefor according to law.

§11-5-9. Ascertainment of property held under order of court.

The assessor shall ascertain from each person in his county, who acts under the order of any court as receiver or commissioner, the amount of all bonds, or other evidence of debt, under his control, and the style of the suit in which such fund belongs.

§11-5-10. Entry of omitted personalty taxes.

If the assessor discovers that any taxes on personal property, other than bank deposits and money, were omitted in any former years, he shall proceed as provided in section five of article three of this chapter.

§11-5-10a. Release of taxes, interest and charges, on bank deposits and money not assessed prior to November 4, 1958.

In view of the adoption of section one-a, amending article X of the Constitution of West Virginia, at the general election held on November 4, 1958, without any saving clause therein, and in order to give effect to the mandate of the people of the state, it is the intent and purpose of the Legislature to, and it hereby does, release all ad valorem taxes, interest, and charges on bank deposits and money unless an assessment therefor shall have been made, as provided in article three of this chapter, prior to November 4, 1958.

§11-5-11. Mobile homes used by the owner for residential purposes and located on land not owned by the mobile homeowner.

Mobile homes used and occupied by the owner thereof exclusively for residential purposes and located on land not owned by the owner of the mobile home shall be assessed on the personal property books as Class II property.

§11-5-12. Mobile homes situate upon property owned by a person other than owner of mobile home.

Mobile homes situated upon property owned by a person other than the owner of the mobile home are classified as personal property whether or not the mobile home is permanently affixed to the real estate and, unless subject to assessment as Class II property under section eleven of this article or section two, article four of this chapter, are assessed as Class III or Class IV personal property, as may be appropriate in the circumstances.

A mobile home permanently attached to the real estate of the owner may not be classified as personal property if the owner has filed a canceled certificate of title with the clerk of the county commission and the clerk has recorded it in the same manner as deeds are recorded and indexed.

§11-5-13. Exemption of inventory and warehouse goods.

(a) Tangible personal property which is moving in interstate commerce through or over the territory of the State of West Virginia, or which was consigned from a point of origin outside the state to a warehouse, public or private, within the state for storage in transit to a final destination outside the state, whether specified when transportation begins or afterward, but in any case specified timely for exempt status determination purposes, shall not be deemed to have acquired a tax situs in West Virginia for purposes of ad valorem taxation and shall be exempt from such taxation, except as otherwise provided herein.

(b) Such property shall not be deprived of such exemption because while in the warehouse the personal property is assembled, bound, joined, processed, disassembled, divided, cut, broken in bulk, relabeled, or repackaged for delivery out of state, unless such activity results in a new or different product, article, substance or commodity, or one of different utility.

(c) Personal property of inventories of natural resources shall not be exempt from ad valorem taxation unless required by paramount federal law.

(d) The exemption allowed herein shall be phased in over a period of five consecutive assessment years, at the rate of one fifth of the assessed value of the property per assessment year, beginning July 1, 1987.

§11-5-13a. Application of exemption to finished goods in warehouse.

(a) This section is intended to clarify the intent of the Legislature and the citizens in establishing the exemption from ad valorem property taxation granted by section one-c, article ten of the West Virginia Constitution and section thirteen of this article as it pertains to goods held in warehouse facilities in this state awaiting shipment to a destination outside this state. This section codifies policies applied by agencies and departments of this state upon which persons have relied. It is the intent of the Legislature that the provisions of this section are to be liberally construed in favor of a person claiming exemption from tax pursuant to section one-c, article ten of the West Virginia Constitution, this section and section thirteen of this article.

(b) Goods which have been moved to a warehouse or storage facility, at which no substantial alteration takes place, to await shipment to a destination outside this state are deemed to be moving in interstate commerce over the territory of the state and therefore are exempt from ad valorem property tax and do not have a tax situs in West Virginia for purposes of ad valorem taxation.

(c) Notwithstanding subsection (b) of this section, personal property of inventories of natural resources shall not be exempt from ad valorem taxation unless required by federal law.

(d) This section is intended to be declarative of the law as of the enactment hereof and shall be fully retroactive.

§11-5-14. Assessment of motor vehicles previously titled jointly by married couples following final divorce order.

Beginning July 1, 1999, upon the presentment to the assessor of a certified copy of a final divorce order, entered under the provisions of section fifteen, article two, chapter forty-eight of this code, which grants the possession of a jointly titled motor vehicle to one of the parties of the divorce, the assessor shall list and assess that motor vehicle in the name of the person awarded possession of the vehicle in the final divorce order. If two jointly owned motor vehicles are involved in the divorce order and the vehicles are awarded exclusively to be titled one in the name of the husband and one in the name of the wife, the assessor shall apportion the assessment of the taxes owed on the vehicles between the husband and wife for the purposes of taxation on the vehicles so that the husband or wife will be responsible for the payment of taxes only on the vehicle awarded to him or her by the final divorce order. The assessor shall file notice of the apportionment with the county commission. Upon receipt of the notice, the county commission shall order that the taxes on the vehicles be apportioned in accordance with the apportionment set forth in the notice. The clerk of the county commission shall certify a copy of the order to the sheriff. Upon receipt of the order, the sheriff shall accept payment of the amount of tax apportioned to the motor vehicle awarded to the former spouse determined in the county commission's order, and the receipt issued by the sheriff for such payment shall constitute payment in full of the taxes due for the motor vehicle. No provision of this section may be construed to relieve the former spouse from liability for payment of any tax imposed on any other property of the former spouse.

§11-5-15.  Dealer collection of fees on heavy equipment rental inventory.

1. Definitions – When used in this section, or in the administration of this section, the terms defined in this subsection shall have the meanings ascribed to them by this subsection, unless a different meaning is clearly required by the context in which the term is used or by specific definition.

(1) “Dealer of heavy equipment rental inventory” means a person or entity principally engaged in the business of short-term rental of property as described under North American Industrial Classification System code 532412, as published by the Bureau of Census.

(2) “Heavy equipment rental inventory” means the inventory of any construction, earthmoving or industrial equipment that is mobile and rented by a dealer of heavy equipment rental inventory including attachments for the equipment or other ancillary equipment or tools.  Qualified heavy equipment property is mobile if it is not permanently affixed to real property and is capable of being moved to work sites.

(3) “Rental” or “renting” means the rental by a dealer of heavy equipment rental inventory:

(A) For period of less than one (1) year or for an undefined period; or

(B) Under a contract with unlimited terms.

(4) “Rental charge” means the total charge for the rental of heavy equipment rental inventory.

(b) For the purpose of the collection and remittance of property taxes on heavy equipment rental inventory, each dealer of heavy equipment rental inventory may, with respect to each rental of heavy equipment rental inventory, assign a fee to each item of heavy equipment rental inventory, state the amount of the fee assigned to the item of heavy equipment rental inventory as a separate line item on the invoice or other billing statement issued by the dealer to the renter, and collect the fee from the renter at the time the renter makes a rental payment to the dealer.  The fee shall be in any amount not greater than two and one-half percent of the rental charge of each item of heavy equipment rental inventory.  

(c) Any dealer of equipment rental inventory collecting the fee pursuant to subsection b of this section shall account for and hold those amounts separately from all other business receipts and shall use such amounts solely and exclusively for purposes of paying the property taxes levied upon its heavy equipment rental inventory.  

(d) Any dealer collecting fees pursuant to subsection a of this section shall remit such amounts annually to the appropriate county sheriff on or before the thirtieth of September immediately following receipt of annual tax statements for the year in which the taxes collected pursuant to subsection a of this section took place.  Any such remittances shall be credited against the dealer’s property taxes attributable to the heavy equipment rental inventory for that year.  Any fees remitted to any county in excess of the dealer’s actual property tax liability in the applicable tax year attributable to the heavy equipment rental inventory in that county shall be retained by the county having received the payments and no such excess shall be refunded to the dealer.  

(e) Nothing in this section may be construed to exempt such heavy equipment rental inventory from property taxes.  

(f) All fees collected from renters shall be excluded from any amounts subject to state or municipal sales or use taxes.

§11-6-1. Returns of property to board of public works.

(a) On or before May 1 in each year a return in writing shall be filed with the board of public works: (1) By the owner or operator of every railroad, wholly or in part, within this state; (2) by the owner or operator of every railroad bridge upon which a separate toll or fare is charged; (3) by the owner or operator of every car or line of cars used upon any railroad within the state for transportation or accommodation of freight or passengers, other than the owners or operators as may own or operate a railroad within the state; (4) by the owner or operator of every express company or express line, wholly or in part, within this state, used for the transportation by steam or otherwise of freight and other articles of commerce; (5) by the owner or operator of every pipeline, wholly or in part, within this state, used for the transportation of oil or gas or water, whether the oil or gas or water be owned by the owner or operator or not, or for the transmission of electrical or other power, or the transmission of steam or heat and power or of articles by pneumatic or other power; (6) by the owner or operator of every telegraph or telephone line, wholly or in part, within this state, except private lines not operated for compensation; (7) by the owner and operator of every gas company and electric lighting company furnishing gas or electricity for lighting, heating or power purposes; (8) by the owner or operator of hydroelectric companies for the generation and transmission of light, heat or power; (9) by the owner or operator of water companies furnishing or distributing water; and (10) by the owner or operator of all other public service corporations or persons engaged in public service business whose property is located, wholly or in part, within this state.

(b) The words "owner or operator," as applied herein to railroad companies, shall include every railroad company incorporated by or under the laws of this state for the purpose of constructing and operating a railroad, or of operating part of a railroad within this state, whether the railroad or any part of it be in operation or not; and shall also include every other railroad company, or persons or associations of persons, owning or operating a railroad or part of a railroad in this state on which freight or passengers, or both, are carried for compensation. The word "railroad," as used herein includes every street, city, suburban or electric or other railroad or railway.

(c) The words "owner or operator," as applied herein to express companies, shall include every express company incorporated by or under the laws of this state, or doing business in this state, whether incorporated or not, and any person or association of persons, owning or operating any express company or express line upon any railroad or otherwise, doing business partly or wholly within this state.

(d) The return shall be signed and sworn to by the owner or operator if a natural person, or, if the owner or operator shall be a corporation, shall be signed and sworn to by its president, vice president, secretary or principal accounting officer.

(e) The return required by this section of every owner or operator shall cover the year ending on December 31, next preceding, and shall be made on forms prescribed by the board of public works, which board is hereby invested with full power and authority and it is hereby made its duty to prescribe the forms as will require from any owner or operator herein mentioned information as in the judgment of the board may be of use to it in determining the true and actual value of the properties of the owners or operators.

§11-6-2. Same -- Railroads.

In the case of a railroad, such return shall show for every such owner or operator: (a) The whole number of miles of railroad owned, leased or operated within this state; (b) if such railroad be partly within and partly without this state, the whole number of miles within this state, and the whole number of miles without the same, including its branches in and out of the state, (c) the railroad track in each county in this state through which it runs; giving the whole number of miles of road in the county, including the track and its branches and side and second tracks, switches and turnouts therein, and the true and actual value per mile of such railroad in each county, stating the valuation of main track, second main track, branches, sidings, switches and turnouts separately; (d) all rolling stock owned, leased or operated, showing in separate classes: (1) The rolling stock owned; (2) the rolling stock leased or held under any conditional sale or other contract, giving such owner or operator the possession or control thereof; (3) the rolling stock used upon the line of such owner or operator, but owned by other railroad companies not owning or operating a railroad wholly or in part within this state; and (4) the rolling stock used upon such line, but owned, held or operated by corporations or companies not railroad companies, or by individuals and for each of such classes giving a detailed statement of the number and ownership of engines, car lines and cars, including passenger, mail, express, baggage, freight, sleeping, dining, parlor, refrigerator, stock and other cars of every description, and the names and addresses of the owners, and the true and actual value of all such cars used wholly or in part in this state, distinguishing between those used wholly in this state and those used partly within and partly without the state; the whole number of engines, including their appendages, used wholly or in part within this state, distinguishing between those used wholly within this state and those used partly within and partly without the same, and the true and actual value of those used wholly within the state and those used partly within and partly without the state; and the proportional value of cars and engines used partly within and partly without the state, according to the time used and the number of miles run by such cars and engines in and out of the state; and the proportional value thereof in each county in this state within which such railroad runs; (e) the depots, station houses, section houses, freight houses, machine and repair shops and machinery therein, and all other buildings, structures and appendages connected thereto or used therewith, including tool houses, and the tools usually kept therein, together with all other real estate, other than railroad track, owned or used in connection with the railroad, and not otherwise taxed, including telegraph and telephone lines, owned or used, and the true and actual value of all buildings and structures, and all such machinery and appendages, and each parcel of such real estate, including such telegraph or telephone lines, and the true and actual value thereof in each county in this state in which it is located; (f) personal property, of every kind whatsoever, including money, credits and investments wholly held or used in this state, showing the amount and value thereof in each county; (g) an itemized list of all other real property, with the location thereof, which list shall show as to each parcel whether it is assessed for taxation, and if so, by what officer or authority; (h) the capital actually employed; the total amount of bonded indebtedness, and of indebtedness not bonded; gross earnings for the year, including earnings from telegraph lines, which shall be stated separately, on the whole length of road, including the branches thereof, in and out of the state, and also such earnings within the state on way freight and passengers, and the proportion of such earning in this state on through freight and passengers carried over lines in and out of the state, to be ascertained by the number of miles the same was carried within and the number of miles without the state; and, if such owner or operator be a corporation, its actual capital stock, and the number, character, amount and market value of the shares thereof, and the amount of capital stock actually paid in; (i) gross expenditures for the year, giving a detailed statement thereof under each class or head of expenditures.

§11-6-3. Same -- Toll bridges.

In the case of any bridge upon which a separate toll or fare is charged, such return shall show: (a) The location of the same; (b) for what used; and, if used by a railroad, what railroad uses it; (c) the length of such bridge; and, if used by a railroad, the number of tracks on it; (d) all other property owned by such owner or operator and used in connection with such bridge; (e) the capital actually invested; the amount of capital stock authorized and issued, the par value and the market value of the shares into which the capital stock is divided, and the amount of dividends declared on the capital stock within the twelve months preceding the first day of the current assessment year; the total amount of bonded indebtedness and of indebtedness not bonded; gross earnings for the year from all sources; (f) gross expenditures for the year, giving a detailed statement thereof under each class or head of expenditure; (g) any other information requested by the board of public works which the board deems may be of use to it in determining the actual value of such bridge or bridges.

§11-6-4. Same -- Car line companies.

In the case of car lines used for the transportation or accommodation of passengers or freight by owners or operators, other than railroad companies making their return under this law, such return shall show for every such owner or operator: (a) All cars and other rolling stock, giving a detailed statement of the number of cars, including passenger, mail, express, baggage, freight, sleeping, dining, parlor, refrigerator, stock or other cars of every description, and the true and actual value of all such cars used wholly or in part in this state, distinguishing between those used wholly in this state and those used partly within and partly without the state, and the true and actual value of those used wholly within the state and those used partly within and partly without the state, and the proportional value of such cars used partly within and partly without the state, according to the time used and the number of miles run by such cars in and out of the state, the railroad over which they were run, and the proportional value in each county within this state within which such cars were run; but in any case where it may appear to the board of public works that from the nature of the employment of such cars, or otherwise, it is not practicable to show the matters hereinbefore required in this section as to the cars used in this state, and the proportional value of the cars used partly within and partly without this state and each county thereof, the board may, as to such matters, accept such other information as it may be practicable to obtain, or in its discretion the board may dispense with such showing as to any such matter; (b) real and personal property of every kind, whatever, including money, credits and investments and the amount thereof, wholly held or used in this state, showing the amount and the true and actual value in each county; (c) the actual capital employed in the business of such owner or operator, the total amount of bonded indebtedness with respect to such line, and of indebtedness not bonded; the whole length of the several lines of railroad over which such cars run, including branches and connecting lines in and out of the state; and, if such owner or operator be a corporation, its actual capital stock and the number, character, amount and market value of the shares thereof, and the amount of capital stock actually paid in; its bonded indebtedness and its indebtedness not bonded. The board of public works shall have the right to require any such owner or operator to furnish such other and further information as, in the judgment of the board, may be of use to it in determining the true and actual value of the property to be assessed to such owner or operator.

§11-6-5. Same -- Pipeline companies.

In the case of a pipeline, such return shall show for each owner or operator: (a) The number of miles of pipeline owned, leased or operated within this state, the size or sizes of the pipe composing such line, and the material of which such pipe is made; (b) if such pipeline be partly within and partly without this state, the whole number of miles thereof within this state and the whole number of miles without this state, including all branches and connecting lines in and out of the state; (c) the length, size and true and actual value of such pipelines in each county of this state, including in such valuation the main line, branches and connecting lines, and stating the different values of the pipe separately; (d) its pumping stations, machine and repair shops and machinery therein, tanks, storage tanks and all other buildings, structures and appendages connected or used therewith, together with all real estate, other than its pipeline, owned or used by it in connection with its pipeline, including telegraph and telephone lines, and the true and actual value of all such buildings, structures, machinery and appendages and of each parcel of such real estate, including such telegraph and telephone lines, and the true and actual value thereof in each county in this state in which it is located; and the number and value of all tank cars, tanks, barges, boats and barrels; (e) its personal property of every kind whatsoever, including money, credits and investments, and the amount thereof wholly held or used in this state, showing the amount and value thereof in each county; (f) an itemized list of all other real property within this state, with the location thereof; and (g) the actual capital employed in the business of such owner or operator, the total amount of the bonded indebtedness of such owner or operator with respect to such line, and of indebtedness not bonded; and, if such owner or operator be a corporation, its capital stock, the character, number and amount and the market value of the shares thereof, and the amount of capital stock actually paid in; its bonded indebtedness and its indebtedness not bonded. The board of public works shall have the right to require such owner or operator to furnish such other and further information as, in the judgment of the board may be of use in determining the true and actual value of the property to be assessed to such owner or operator.

§11-6-6. Same -- Express companies.

In case of an express company or express line, such report shall show for every such owner or operator: (a) The whole number of miles of railroad over which such express company operates its cars within this state; (b) if such railroad be partly within and partly without this state, the whole number of miles of such railroad over which such express company runs its cars within this state, and the whole number of miles without the same, including its branches in and out of this state; (c) the whole number of miles of railroad in each county in this state over which such express company runs its cars; (d) the whole number of cars used or run by it within the limits of this state; (e) the gross and net earnings of such express company wherever its business is carried on, and the gross and net earnings within the limits of this state; (f) the personal property of every kind whatsoever, including the number of horses, drays, wagons, carts, money, credits and investments wholly held or used in this state, showing the amount and value thereof in each county; (g) an itemized list of all its real property, with the location thereof; which list shall show, as to each parcel, whether it is assessed for taxation, and if so, by what officer or authority; (h) the capital actually employed and the amount of indebtedness; and, if such owner or operator be a corporation, its actual capital stock, and number, character, amount and market value, of the shares thereof, and the amount of capital stock actually paid in; (i) the gross expenditures for each year, giving a detailed statement thereof under each class or head of expenditure.

§11-6-7. Same -- Telegraph and telephone companies.

In the case of a telegraph or telephone line, the report shall show for every owner or operator: (a) The number of miles of lines owned, leased or operated within this state, the gauge of the wire, the number of strands of wire, the material of which it is made and, as accurately as may be, the time when the line or any material part thereof was constructed or last replaced; (b) if such lines be partly within and partly without the state, the whole number of miles thereof within this state and the whole number of miles without this state, including all branches and connecting lines in and out of the state; (c) the true and actual value per mile of such line in each county of this state; (d) its stations, shops and machinery therein, and all buildings, structures and appendages connected or used therewith, together with all real estate, other than its telegraph or telephone line, owned or used by it in connection with its line, and of each parcel of such real estate and the true and actual value thereof in each county in this state in which it is located; (e) its personal property of every kind whatsoever, including money, credits and investments, and the amounts thereof wholly held or used in this state, showing the amount and value thereof in each county; (f) an itemized list of all other real property within this state, with the location thereof; and (g) the actual capital employed in the business of such owner or operator, the total amount of the bonded indebtedness of the owner or operator, with respect to the line, and of all indebtedness not bonded; and, if the owner or operator be a corporation, its capital stock, the character, number, amount and the market value of the shares thereof, and the amount of capital stock actually paid in; its bonded indebtedness and its indebtedness not bonded. The board of public works shall have the right to require any such owner or operator to furnish such other and further information as, in the judgment of the board, may be of use to it in determining the true and actual value of the property to be assessed to the owner or operator.

§11-6-7a.

Repealed.

Acts, 1999 Reg. Sess., Ch. 265.

§11-6-7b.

Repealed.

Acts, 1999 Reg. Sess., Ch. 265.

§11-6-8. Form and manner of making return; failure to make return; criminal penalty.

All returns to be made to the board of public works, under this chapter, shall be made in conformity with any reasonable requirement of the board of which the person making the return shall have had notice, and shall be made upon forms which may be furnished by the board, and according to instructions which the board may give relating thereto, and to the description and itemizing of the property. Such owner or operator, whether a natural person, or a corporation or company, failing to make such return as herein required shall be guilty of a misdemeanor and, fined $1,000 for each month such failure continues.

§11-6-9. Compelling such return; procuring information and tentative assessments by Tax Commissioner.

(a) If any owner or operator fails to make such return within the time required by section one of this article, it shall be the duty of the Tax Commissioner to take such steps as may be necessary to compel such compliance, and to enforce any and all penalties imposed by law for such failure.

(b) The return delivered to the Tax Commissioner shall be examined by him and if it be found insufficient in form or in any respect defective, imperfect or not in compliance with law, he shall compel the person required to make it to do so in proper and sufficient form, and in all respects as required by law.

(c) If any such owner or operator fails to make such return, the Tax Commissioner shall proceed, in such manner as to him may seem best, to obtain the facts and information required to be furnished by such returns.

(d) The Tax Commissioner may send for persons and papers, and may compel the attendance of any person and the production of any paper necessary, in the opinion of said Tax Commissioner, to enable him to obtain the information required for the proper discharge of his duties under this section.

(e) The Tax Commissioner shall arrange, collate and tabulate such returns and all pertinent information and data contained therein, such further evidence or information as may be required by the Tax Commissioner of such owner or operator, and all other pertinent evidence, information and data he has been able to procure, upon suitable work sheets, so that they may be conveniently considered, and shall on or before September 15, lay such returns and work sheets, together with his recommendations in the form of a tentative assessment of the property of each such owner or operator, before the board of public works. And as soon as the Tax Commissioner has completed the preparation of such work sheets and tentative assessments, he shall notify the owner or operator affected thereby of the amount of such tentative assessment by written notice deposited in the United States post office, addressed to such owner or operator at the principal office or place of business of such owner or operator, and the Tax Commissioner shall retain in his office true copies of such work sheets which shall be available for inspection by any such owner or operator or his duly authorized representative.

§11-6-10. Failure to give information required by board of public works; criminal penalty.

If any person shall refuse to appear before the board when required to do so, as aforesaid, or shall refuse to testify before the board in regard to any matter as to which the board may require him to testify, or if any person shall refuse to produce any paper in his possession or under his control, which the board may require him to produce, every such person shall be guilty of a misdemeanor and, fined $500, and may be imprisoned not less than one nor more than six months, at the discretion of the court.

§11-6-11. Valuation of property by board.

Upon the fifteenth day after giving the notices required by section nine of this article, or as soon thereafter as reasonably convenient but not later than October 1, the board of public works shall proceed to access and fix the true and actual value of all property of such owner or operator hereinbefore required to be returned, in each county through which the railroad, car line, cars, express, telegraph, telephone, or pipeline of such owner or operator runs, and in which any property to be assessed is located. In ascertaining such value the board shall consider the return, if any, made by the owner or operator, and any return which may have been previously made by such owner or operator, the work sheets and tentative assessment recommended by the Tax Commissioner, such evidence or information as may be offered by such owner or operator, such further evidence or information as may be required by the board of such owner or operator, and any other pertinent evidence, information and data. Any and all evidence, information and data, at a regular meeting of the board held for such purpose at least fifteen days after giving the notice required by section nine of this article. Before any assessment shall be made by the board, any and all evidence, information and data considered by the board shall be available for inspection by any such owner or operator or his duly authorized representative, and an opportunity given to be heard thereon when the board of public works has assessed any property hereby required to be returned, and has determined the valuation thereof, such assessment and valuation shall be entered of record in the book of minutes of its proceedings, and shall be certified by the secretary of the board to the Auditor.

Nothing in this chapter contained shall be construed to require the assessment by the board of public works of any part of a railroad, telegraph, telephone or pipeline until such part is so far completed as to be fit for use. But material held by any railroad, telegraph, telephone or pipeline company shall be returned to the board of public works for assessment as personal property. As soon as such assessment is made, the secretary of the board shall notify the owner or operator affected thereby of the amount thereof by written notice deposited in the United States post office, addressed to such owner or operator at the principal office or place of business of such owner or operator. Such assessment and valuation shall be final and conclusive, unless the same be appealed from in the manner following, within fifteen days after such notice is so deposited.

§11-6-11a. Adjustment of valuation by board.

Any time before an owner or operator appeals a valuation to circuit court, as provided for in section twelve of this article, the board of public works may, after consideration of all relevant facts and evidence, adjust the valuation made by the board pursuant to section eleven of this article.

§11-6-11b.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-11c.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-11d.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-11e.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-12. Appeal from valuation by board.

Any owner or operator claiming to be aggrieved by any such decision may, within the time aforesaid, apply by petition in writing, duly verified, to the circuit court of the county in which the property so assessed is situated, or if such property be situated in more than one county then in the county in which the largest assessment of such owner or operator was made in the next preceding year, for an appeal from the assessment and valuation so made of all such property, and jurisdiction is hereby conferred upon and declared to exist in the court, in which such application is filed, to grant, docket and hear such appeal; and such appeal, as to all of the property so assessed, as well as that situated in the county of the court so applied to, as that situated in the several other counties, shall forthwith be allowed by such court so applied to, and be heard by such court as to all of such property as soon as possible after the appeal is docketed, but notice in writing of such petition shall be given to the Secretary of State, as secretary of the board of public works, by mailing a copy of the petition for an appeal filed as aforesaid, which said petition shall recite the fact that copies of such petition have been sent by registered mail. Notice in writing of the hearing upon such petition shall be given to the State Tax Commissioner at least fifteen days beforehand. Likewise, the State Tax Commissioner may, by giving notice in writing at least fifteen days beforehand to the petitioner, bring on such appeal for hearing. Upon such hearing the court shall hear all such legal evidence as shall be offered on behalf of the state or any other county, district or municipal corporation interested, or on behalf of the appealing owner or operator. If the court be satisfied that the value so fixed by the board of public works is correct, it shall confirm the same, but if it be satisfied that the value so fixed by the board is either too high or too low, the court shall correct the valuation so made and shall ascertain and fix the true and actual value of such property according to the facts proved, and shall certify such value to the Auditor and to the secretary of the board of public works. The state or the owner or operator may appeal to the Supreme Court of Appeals if the assessed value of the property be $50,000 or more.

If the court to which an application for appeal would properly be made as aforesaid shall not be in session, the judge thereof in vacation shall forthwith allow the appeal, and if the judge thereof be disqualified or for any reason not be available, the filing of the aforesaid petition in the office of the clerk of the circuit court of the county in which the largest assessment of such owner or operator was made in the preceding year, within the time of aforesaid, shall constitute sufficient compliance with this section, and the appeal shall thereafter be proceeded with as otherwise provided in this section.

§11-6-12a. Relief from erroneous assessments.

(a) Any owner or operator claiming to be aggrieved by an assessment of the board of public works, including matters relating to the valuation of property resulting from a clerical error or a mistake occasioned by an unintentional or inadvertent act as distinguished from a mistake resulting from negligence or the exercise of poor judgment may, within sixty days of the effective date of this section and thereafter within one year from the date upon which the board of public works has set final values or within one year from the time such clerical error or mistake is discovered or reasonably could have been discovered, apply for relief to the board of public works as provided in this section.

(b) Upon the discovery of any such clerical error or mistake, the secretary of the board of public works shall send notice to the owner or operator affected by the clerical error or mistake by first class mail advising the owner or operator of the right to make application for relief from the erroneous assessment.

(c) Except as otherwise provided in subsection (a) of this section, the application for relief shall be presented to the secretary of the board of public works no later than one year from the date upon which the error or mistake is discovered.

(d) If the board of public works determines that the applicant is entitled to relief, any excess taxes already paid shall be refunded or, if the taxes are charged but not paid, the applicant shall be released from the payment of such excess: Provided, That except for an application for relief filed within sixty days of the effective date of this section, in the event a mistake or error is discovered more than one year from the date the board has set final values, and the board determines the applicant is entitled to relief, then any correction under this section shall be in the form of a credit against future years' taxes.

(e) Whenever any correction is made by the board of public works, the secretary of the board of public works shall direct that the adjustments be made by the State Tax Commissioner and communicated to the Auditor for correction of the tax statements. The Auditor shall thereafter cease any attempt to collect any amounts erroneously charged against the owner or operator and, if already collected, shall refund any excess taxes paid: Provided, That except for an application for relief filed within sixty days of the effective date of this section, in the event a mistake or error is discovered more than one year from the date the board has set final values, and the board determines the applicant is entitled to relief, then any correction under this section shall be in the form of a credit against future years' taxes.

(f) The provisions of this section shall not be construed to authorize the board of public works to consider any question involving the assessment or valuation of property which has been the subject matter of an appeal under the provisions of section twelve of this article.

(g) Any owner or operator may appeal the decision of the board of public works with respect to an application made for relief under this section in the same manner as appeals are authorized under the provisions of section twelve of this article.

§11-6-13. Apportionment of value among counties, districts and municipalities.

In case the list and valuation of the property filed with the Tax Commissioner be satisfactory to the board of public works, or upon assessment of the property of such owner or operator being made by the board of public works the Auditor shall immediately apportion to each county, in which any part of such property is situated, the value of the property therein of every such owner or operator as valued or assessed hereunder and the relative value of such operating property within each county compared to the value of the total operating property within the state, to be determined upon such factors as the Auditor shall deem proper; and further shall apportion such values among the several districts, being school districts, and a proportional valuation to each municipality therein, in which any part of such property is situated, according to the value thereof, as near as may be, and forthwith shall certify to the county commission of such county the values so apportioned. The clerk of the county commission shall forthwith certify such values to the school district and to the several municipalities, respectively, in such county.

Inasmuch as there was litigation challenging the long term apportionment method consistently used by the State Auditor under the provisions of this section by which distribution was made of the ad valorem tax values of the operable properties and assets of public service businesses attributable to more than one county, and with the Legislature subsequently approving, codifying and ordering the continuance of such method of apportionment; and inasmuch as the Legislature having changed such apportionment method and having vested the authority to accomplish such and to issue assessments under this article through actions of the State Tax Commissioner rather than assessment by the board of public works and apportionment by the State Auditor, pursuant to chapter one hundred fifty-nine, acts of the Legislature, 1985 regular session,; and in light of the Legislature being unaware of the dramatic shifting of valuations among counties as a result of application or use of such new apportionment method and thus desiring to return to the former method of apportionment and that the same be performed by the State Auditor, as formerly and that final assessment activity, as such, and hearings in respect thereof be performed by the board of public works, as formerly; therefore, the Legislature finds and determines that apportionment and distribution of ad valorem tax valuations hereunder should and are to be performed by the State Auditor promptly and for current periods and on the basis of the above-mentioned long-term apportionment method used consistently by the State Auditor and with the valuations as determined by the application of such apportionment method to be certified forthwith to the county commissions. Specifically, as to the true and actual values of the property of public service businesses reported on their tax returns required to be filed by May 1, 1985 and as thereafter determined by tentative assessment and final assessment by the Tax Commissioner or by court decision for tax fiscal year 1986, the State Auditor shall, by March 1, 1986, or as soon as may be practicable, apportion and distribute such values, as required, to the respective levying bodies and on the basis of his using the long-term, consistent apportionment method of his office as long engaged in the applied under the provisions of this section and article.

§11-6-13a.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13b.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13c.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13d.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13e.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13f.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13g.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13h.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13i.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-13j.

Repealed.

Acts, 1986 Reg. Sess., Ch. 156.

§11-6-14. Certification of levies to Auditor.

The clerk of the county court of every county in which any property lies which was so assessed shall, within thirty days after the county and district levies are laid by such court, certify to the Auditor the amount levied upon each $100 value of the property of each class in the county for county purposes, and on each $100 of the value of the property of each class in each magisterial district for the district purposes. It shall be the duty of the secretary of the board of Education of every school district and independent district in which any part of the property lies, within thirty days after the levies are laid therein for free school and building purposes, or either, to certify to the Auditor the amount so levied on each $100 value of the property of each class therein for each of such purposes; and it shall be the duty of the recorder, clerk or other recording officer of every municipal corporation in which any part of the property lies, within the same time, after levies are laid therein for any of the purposes authorized by law, to certify to the Auditor the amount levied upon each $100 value of the property of each class therein for each and every purpose.

§11-6-15. Failure of officers to perform duties as to property of public service corporations.

Any clerk of a county court, secretary of the board of Education, or recorder, clerk or other recording officer of a municipal corporation, who shall fail to perform any of the duties herein required of him shall be guilty of a misdemeanor, and, upon conviction thereof, fined not less than $100 nor more than $500. In case of the failure of any such officers to furnish to the Auditor the certificate herein required, the Auditor may obtain the rate of taxation for any of said purposes from the copies of the land books on file in his office, if the same be found in such books, if not, in such other way or manner as he may deem necessary or proper for the purpose.

§11-6-16. Entry of assessment by Auditor of property of such public service businesses.

As soon as possible after the valuation of the property of such owner or operator is fixed by the board of public works or by the circuit court on appeal as aforesaid, and after he shall have obtained the information herein provided for to enable him to do so, the Auditor shall assess and charge each class of property of every such owner or operator with the taxes properly chargeable thereon, in a book to be kept by him for that purpose, as follows: (a) With the whole amount of taxes upon such property for state and state school purposes, if any such taxes are levied; (b) with the whole amount of taxes on such property in each county for county purposes; (c) with the whole amount of taxes on such property in each school district for free school and building purposes; and (d) with the whole amount of taxes on such property in each municipal corporation for each and all of the purposes for which a levy therein was made by the municipal authorities of such corporation.

§11-6-17. Injunction to restrain collection of tax.

No injunction shall be awarded by any court or judge to restrain the collection of the taxes, or any part of them, so assessed upon the property of such owner or operator, except upon the ground that the assessment thereof was in violation of the Constitution of the United States, or of this state; or that the same were fraudulently assessed, or that there was a mistake made by the Auditor in the amount of taxes properly chargeable on the property of such owner or operator; and in the latter case no such injunction shall be awarded unless application be first made to the Auditor to correct the mistake claimed, and the Auditor shall refuse to do so, which fact shall be stated in the bill, nor unless the complainant pay into the treasury of the state all taxes appearing by the bill of complaint to be owing.

§11-6-18. Payment of assessment by owner or operator.

The Auditor shall, as soon as possible after such assessment is completed, make out and transmit by mail or otherwise, to such owner or operator, a statement of all taxes and levies so charged, and it shall be the duty of such owner or operator, so assessed and charged, to pay one half of the amount of such taxes and levies into the treasury of the state by September 1, and the remaining one half by the first day of the following March, subject to a deduction of two and one-half per centum if the taxes be paid on or before the date due. If such owner or operator fail to pay such taxes and levies when due, interest thereon at the rate of nine per centum per annum until paid shall be added, and the Auditor shall certify, after the date the second installment is due, to the sheriff of each county, the amount of such taxes and levies assessed within his county; and it shall be the duty of every sheriff to collect and account for such taxes and levies in the same manner as other taxes are levied or collected and accounted for by him The payment of such taxes and levies by any such owner or operator shall not prejudice or affect the right of such owner or operator to obtain relief against the assessment or valuation of its property in proceedings now pending or hereafter brought under the provisions of section twelve of this article, or in any suit, action or proceeding in which such relief may be obtainable; and if under the provisions of said section twelve or in any suit, action or proceeding, it be ascertained that the assessment or valuation of the property of such owner or operator is too high and the same is accordingly corrected, it shall be the duty of the Auditor of the state to issue to the owner or operator a certificate showing the amount of taxes and levies which have been overpaid, and such certificate shall be receivable thereafter for the amount of such overpayment in payment of any taxes and levies assessed against the property of such owner or operator, its successors or assigns. It shall likewise be the duty of said Auditor to certify to the county court, school districts and municipalities, the amounts of the respective overpayments distributable to such counties, school districts and municipalities. All moneys received by the Auditor under the provisions of this section shall be transmitted to the several counties within twenty days from receipt thereof.

§11-6-19. Accounting by sheriff for district and municipal taxes from public service corporations.

When the district and independent school district taxes and levies are collected by the sheriff, he shall account for and pay the same as treasurer of such district. When such taxes and levies due to a municipal corporation are collected by the sheriff he shall pay the same to the proper collecting officer, or treasurer, of such municipal corporation, or otherwise, as the council or other proper authority thereof may direct.

§11-6-20. No release of taxes assessed against such corporations.

Neither the county court of any county, nor any Board of Education, nor the municipal authorities of any incorporated town, shall have jurisdiction, power or authority, by compromise or otherwise, to remit or release any portion of the taxes so assessed upon the property of any such owner or operator, and when such taxes or levies are certified to the sheriff of any county for collection, as aforesaid, it shall be his duty to collect the whole thereof, regardless of any order or direction of any such county court, Board of Education or municipal authority to the contrary; and, if he fail to do so, he and his sureties in his official bond shall, unless he be restrained or prohibited from so doing by legal process from some court having jurisdiction to issue the same, be liable thereon for such taxes and levies he may so fail to collect, if he could have collected the same by the use of due diligence. Any member of the county court or Board of Education, or of the council of a municipal corporation, who shall vote to remit or release any part of the taxes, so assessed on the property of any such owner or operator, shall be guilty of a misdemeanor and, fined $500, and shall be removed from his office by the court by which the judgment of such fine is rendered, in addition to such fine.

§11-6-21. Accounting for levies against public service corporations.

When such taxes and levies are paid into the treasury, as herein provided, the Auditor shall account to the sheriff of each of the counties, to which any sum so paid in for county levies belongs, for the amount due such county, and may arrange the same with such sheriff in any settlement for state taxes in such a way as may be most convenient; and the sheriff shall account to the county court of his county for the amount so received by him in the same manner as for other county levies. The amount so paid for each district and independent school district shall be added to the distributable share of the school fund payable to such district, and shall be paid upon the requisition of the county superintendent of free schools in like manner as other school moneys are paid.

§11-6-22. Certification by Auditor of amount chargeable to sheriff from levies against public service corporations; payment of amount due municipality.

The Auditor shall certify to the county court and the county superintendent of schools of every such county, on or before February 1 in each year, the respective amounts with which the sheriff thereof is chargeable on account of the various levies upon the property of such owner or operator. The amount so paid in for each municipal corporation shall, as soon as received by the Auditor, be paid over to the sheriff, or the treasurer of such municipal corporation, or to such other officer of the municipality as the council may designate, and the Auditor shall report such payment to the council. But the failure of the clerk of any county court, or the secretary of any Board of Education, or the proper officer of any municipal corporation, to certify the levies to the Auditor within the time herein prescribed shall not invalidate or prevent the assessment required by this article, but the Auditor shall make the assessment and proceed to collect or certify the same to the sheriff as soon as practicable after he shall have obtained the information necessary to make such assessment.

§11-6-23. Lien of taxes; notice; collection by suit.

(a) The amount of taxes and levies assessed under this article shall constitute a debt due the state, county, district, or municipal corporation entitled thereto, and shall be a lien on all property and assets of the taxpayer within the state.

(b) The lien shall attach December 31, following the commencement of the assessment year, and shall be prior to all other liens and charges.

(c) The auditor shall, between May 1 and May 15 of each year, prepare a list of the taxpayers delinquent in the payment of the taxes and levies, setting forth their respective addresses and the amount of state, county, district, and municipal taxes due from each, which list shall be certified by the Auditor to the Board of Public Works and filed in the Office of the Secretary of State.

(d) The Secretary of State shall preserve the list in his or her office, and a certificate from him or her that any taxpayer mentioned in the list is delinquent in the amount of taxes assessed under this article shall be prima facie evidence thereof.

(e) Within 10 days after the filing of the list, the Secretary of State shall give final written notice of any delinquency of $1,000 or greater by registered or certified mail to each of the delinquent taxpayers at his or her, or its, last known post office address; the Secretary of State may give final written notice of any delinquency of less than $1,000 by first class mail to each of the delinquent taxpayers at his or her, or its, last known post office address; and upon the failure of any delinquent taxpayer to pay the taxes within 30 days from the mailing of the notice.

(f) The Attorney General shall enforce the collection of the taxes and levies, and for that purpose he or she may distrain upon any personal property of the delinquent taxpayer, or a sufficient amount thereof to satisfy the taxes, including accrued interest, penalties, and costs.

(g) The Attorney General may also enforce the lien created by this section on the real estate of the delinquent taxpayer by instituting a suit, or suits, in equity in the Circuit Court of Kanawha County.

(h) In the bill filed in the suit it shall be sufficient to allege that the defendant or defendants have failed to pay the taxes and that each of them justly owes the amount of property taxes, levies, and penalties, which amount shall be computed up to the first day of the month in which the bill was filed.

(i) No defendant may plead that the Secretary of State failed to give notice as prescribed by this section.

(j) If, upon the hearing of the suit, it shall appear to the court that any defendant has failed to pay the taxes and accrued penalties, the court shall enter a decree against the defendant for the amount due, and if the decree is not paid within 10 days, the court shall enter a decree directing a sale of the real estate subject to the lien, or so much as may be necessary to satisfy the taxes, including interest, penalties, and costs.

(k) When two or more taxpayers are included in one suit, the court shall apportion the cost among them as it may deem just.

§11-6-24. Assessment of buildings and real estate of public service corporations.

All buildings and real estate owned or held by such owner or operator, and used or occupied for any purpose immediately connected with the property, shall be included in such assessment by the board of public works; but all real estate owned or held by any such owner or operator and not used or occupied for purposes immediately connected with the property, shall be assessed as otherwise provided in this chapter.

§11-6-25. Exception.

Notwithstanding the provisions of sections one, nine, eleven, eighteen, twenty-two and twenty-three of this article, the provisions of this article as of January 1, 1961, shall govern the assessment of public service corporations for the assessment year beginning December 31, 1960.

§11-6-26. Operating fund for public utilities division in Auditor’s Office.

The Auditor shall establish a special operating fund in the state Treasury for the public utilities division in his or her office. The Auditor shall pay into the fund one and three eighths percent of the gross receipts of all moneys collected as provided for in this article. Up to one percent of the gross receipts shall be transferred from the operating fund to the tax loss restoration fund created in §11-6-27. From the operating fund, the Auditor shall reimburse the Tax Division for the actual operating expenses incurred in the performance of its duties required by this article not to exceed 50 percent of the fund balance after annual transfers to the tax loss restoration fund. Any moneys remaining in the special operating fund after annual transfers to the tax loss restoration fund shall be used by the Tax Division and the Auditor for funding the operation of their offices. If, at the end of any fiscal year, the balance in the special operating fund established under this section exceeds 20 percent of the gross revenues from the special operating fund operations, the excess shall be transferred to the General Revenue Fund.

§11-6-27. Public utilities tax loss restoration fund.

(a) The Auditor shall establish a special revenue fund in the state Treasury entitled the “Public Utilities Tax Loss Restoration Fund”. The Auditor shall pay into the fund up to one percent of the gross receipts deposited in the public utilities operating fund created in §11-6-26 of this code and up to one percent of the gross receipts deposited in the operating fund of the interstate commerce division created in §11-6G-17 of this code. The proceeds of the tax loss restoration fund shall be distributed quarterly on a proportional basis to counties, districts and municipalities that have lost assessed value from the prior year’s assessment and the method of distribution is based upon the county, district or municipality’s percentage loss compared to the total loss of all counties, districts and municipalities that have lost assessed value from the prior year’s assessment: Provided, That the calculation to the adjustments shall exclude loss in tax revenue attributed to the school current levy, as set forth in §11-8-6c of this code: Provided, however, That the proceeds received by any county, district or municipality shall not be greater than the loss of tax revenue caused by the decrease in assessed value.

(b) The Auditor shall request the State Treasurer to invest the balance of the Public Utilities Tax Loss Restoration Fund pursuant to §12-6C-6 of this code. The Auditor may use the earnings from investments to support any provisions of this code administered by the Auditor related to local government oversight or the general operations of the office.

§11-6A-1. Declaration of policy.

It is declared to be the public policy of the State of West Virginia to maintain reasonable standards of purity and quality of the water of the state and a reasonable degree of purity of the air resources of the state. In the exercise of the police power of the state to protect the environment and promote the public health, safety and general welfare, the Legislature has enacted the Water Pollution Control Act as article eleven, chapter twenty-two of this code and the Air Pollution Control Act as article five, chapter twenty-two thereof. It is recognized and declared by the Legislature that pollution control facilities, as hereinafter defined, are required for the protection and benefit of the environment and the general welfare of the people, are nonproductive, do not add to the economic value of a business enterprise and do not have a market value after installation in excess of salvage value.

§11-6A-2. Definition.

As used in this article, "pollution control facility" means any personal property designed, constructed or installed primarily for the purpose of abating or reducing water or air pollution or contamination by removing, altering, disposing, treating, storing or dispersing the concentration of pollutants, contaminants, wastes or heat in compliance with air or water quality or effluent standards prescribed by or promulgated under the laws of this state or the United States, the design, construction and installation of which personal property was approved as a pollution control facility by either the office of water resources or the office of air quality, both of the Division of Environmental Protection, as the case may be.

§11-6A-3. Tax treatment of pollution control facilities.

The value of a pollution control facility first placed in operation subsequent to July 1, 1973, shall, for the purpose of ad valorem property taxation under this chapter, be deemed to be its salvage value, that is to say, the price for which such facility would sell in place if voluntarily offered for sale by the owner thereof.

§11-6A-4. Regulations.

The State Tax Commissioner shall have the power and authority to promulgate regulations for the administration of this article. Such regulations may provide, among other things, for the identification and certification of pollution control facilities, the determination of the date upon which such facilities were first placed in operation, the determination of whether such facilities are real or personal property, a method for the allocation or separation of values where the pollution control facility produces a profitable by-product or where a part of such facility is required for the operation of the business without regard to the requirements of state or federal air or water quality standards and such other matters as may be related to the administration of this article.

§11-6A-5. Coal waste disposal power projects.

(a) Notwithstanding any other provisions of this article, a coal waste disposal power project designed, constructed or installed to reclaim, burn and dispose of coal wastes in compliance with applicable air and water quality standards and which meets the criteria for financing under section twenty-one, article two-c, chapter thirteen of this code shall, for purposes of section three of this article, be subject to the provisions of this section.

(b) All items of personal property installed at a coal waste disposal power project shall be deemed a pollution control facility for purposes of this article, subject to an allocation of value as contemplated by section four of this article, as provided by this subsection. In allocating value, the Tax Commissioner shall accord salvage valuation to a portion of the total personal property at the project. The portion shall be equal to the ratio of tons of West Virginia coal waste burned and disposed of at the project to the total tons of coal and coal waste burned and disposed at the project during the previous calendar year: Provided, That with respect to a project placed in service prior to the effective date of this section at which project such ratio for the year ended the December 31, 1994, was less than seventy percent, the Tax Commissioner shall award salvage valuation to sixty-three percent of the total personal property at the project for tax years after the effective date of this section, notwithstanding the actual ratio for any calendar year. The remaining portion of the personal property at the project, but in no event less than twenty-five percent of that total, shall be valued without regard to this article: Provided, however, That the facility shall not qualify as a pollution control facility under this subsection if it burns coal, coal waste or fuel waste from outside the State of West Virginia after the effective date of this section.

This provisions of this section are not intended to be applied retroactively.

§11-6A-5a. Wind power projects.

(a) Notwithstanding any other provisions of this article, a power project designed, constructed or installed to convert wind into electrical energy shall be subject to the provisions of this section.

(b) Each wind turbine installed at a wind power project and each tower upon which the turbine is affixed shall be considered to be personal property that is a pollution control facility for purposes of this article and, subject to an allocation of the value of project property determined by the Tax Commissioner in accordance with this section, all of the value associated with the wind turbine and tower shall be accorded salvage valuation: Provided, That the portion of the total value of the facility assigned salvage value in accordance with this section shall, on and after July 1, 2007, be no greater than seventy-nine percent of the total value of the facility. All personal property at a wind power project other than a wind turbine and tower shall not be accorded salvage valuation and shall not be considered to be personal property that is a pollution control facility. For purposes of this section, "wind turbine and tower" is limited to: The rotor, consisting of the blades and the supporting hub; the drive train, which includes the remaining rotating parts such as the shafts, gearbox, coupling, a mechanical brake and the generator; the nacelle and main frame, including the wind turbine housing, bedplate and the yaw system; the turbine transformer; the machine controls; the tower; and the tower foundation.

§11-6B-1. Purpose.

This article is enacted to implement the amendment to article X, section one-b of the Constitution increasing the ad valorem property tax homestead exemption, which was ratified by the people at the general election held on November 4, 1980.

§11-6B-2. Definitions.

For purposes of this article, the term:

(1) "Assessed value" means the value of property as determined under article three of this chapter.

(2) "Claimant" means a person who is age sixty-five or older or who is certified as being permanently and totally disabled, and who owns a homestead that is used and occupied by the owner thereof exclusively for residential purposes: Provided, That: (1) If the property was most recently used and occupied by the owner or the owner's spouse thereof exclusively for residential purposes; (2)the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility; and (3) the property is retained by the owner for noncommercial purposes, then the owner of that property may continue to claim a homestead property tax exemption on the property.

(3) "Family member" means a person who is related by common ancestry, adoption or marriage including, but not limited to, persons related by lineal and collateral consanguinity.

(4) "Homestead" means a single family residential house, including a mobile or manufactured or modular home, and the land surrounding such structure; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned or leased.

(5) "Owner" means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be considered the property of the party in possession.

(6) "Permanently and totally disabled" means a person who is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental condition which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.

(7) "Sixty-five years of age or older" includes a person who attains the age of sixty-five on or before June 30 following the July first assessment day.

(8) "Used and occupied exclusively for residential purposes" means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use: Provided, That failure to satisfy this six-month period shall not prevent allowance of a homestead exemption to a former resident in accordance with section three of this article.

(9) "Tax year" means the calendar year following the July first assessment day.

(10) "Resident of this state" means an individual who is domiciled in this state for more than six months of the calendar year.

§11-6B-3. Twenty thousand dollar homestead exemption allowed.

(a) General. -- An exemption from ad valorem property taxes shall be allowed for the first $20,000 of assessed value of a homestead that is used and occupied by the owner thereof exclusively for residential purposes, when such owner is sixty-five years of age or older or is certified as being permanently and totally disabled provided the owner has been or will be a resident of the State of West Virginia for the two consecutive calendar years preceding the tax year to which the homestead exemption relates: Provided, That an owner who receives a similar exemption for a homestead in another state is ineligible for the exemption provided by this section. The owner's application for exemption shall be accompanied by a sworn affidavit stating that such owner is not receiving a similar exemption in another state: Provided, however, That when a resident of West Virginia establishes residency in another state or country and subsequently returns and reestablishes residency in West Virginia within a period of five years, such resident may be allowed a homestead exemption without satisfying the requirement of two years consecutive residency if such person was a resident of this state for two calendar years out of the ten calendar years immediately preceding the tax year for which the homestead exemption is sought. Proof of residency includes, but is not limited to, the owner's voter's registration card issued in this state or a motor vehicle registration card issued in this state. Additionally, when a person is a resident of this state at the time such person enters upon active duty in the military service of this country and throughout such service maintains this state as his or her state of residence, and upon retirement from the military service, or earlier separation due to a permanent and total physical or mental disability, such person returns to this state and purchases a homestead, such person is deemed to satisfy the residency test required by this section and shall be allowed a homestead exemption under this section if such person is otherwise eligible for a homestead exemption under this article; and the Tax Commissioner may specify, by regulation promulgated under chapter twenty-nine-a of this code, what constitutes acceptable proof of these facts. Only one exemption shall be allowed for each homestead used and occupied exclusively for residential purposes by the owner thereof, regardless of the number of qualified owners residing therein.

(b) Attachment of exemption. -- This exemption shall attach to the homestead occupied by the qualified owner on the July first assessment date and shall be applicable to taxes for the following tax year. An exemption shall not be transferred to another homestead until the following July first. If the homestead of an owner qualified under this article is transferred by deed, will or otherwise, the $20,000 exemption shall be removed from the property on the next July first assessment date unless the new owner qualifies for the exemption.

(c) Construction. -- The residency requirement specified in subsection (a) is enacted pursuant to the Legislature's authority to prescribe by general law requirements, limitations and conditions for the homestead exemption, as set forth in section one-b, article ten of the Constitution of this state. Should the Supreme Court of Appeals or a federal court of competent jurisdiction determine that this residency requirement violates federal law in a decision that becomes final, this section shall then be construed and applied, beginning with the July first assessment day immediately following the date the decision became final, as if the residency requirement had not been enacted, thereby preserving the availability of the homestead exemption and the fiscal integrity of local government levying bodies.

§11-6B-4. Claim for exemption; renewals; waiver of exemption.

(a) General. -- No exemption shall be allowed under this article unless a claim of exemption is filed with the assessor of the county in which the homestead is located, on or before December 1, following the July first assessment day. In the case of sickness, absence or other disability of the claimant, the claim may be filed by the claimant or his or her duly authorized agent.

(b) Claims for disability exemption. -- Each claim for exemption based on the owner being permanently and totally disabled shall include one of the following forms of documentation in support of said claim: (1) A written certification by a doctor of medicine or doctor of osteopathy licensed to practice their particular profession in this state that the claimant is permanently and totally disabled; (2) a written certification by the social security administration that the claimant is currently receiving benefits for permanent and total disability; (3) a copy of the letter from the social security administration originally awarding benefits to the claimant for permanent and total disability and a copy of a current check for such benefits, marked void; (4) a current social security health insurance (Medicare) card in the name of the claimant and a copy of a current check to the claimant, marked void, for benefits from the social security administration for permanent and total disability; (5) a written certification signed by the veterans administration certifying that a person is totally and permanently disabled; (6) any lawfully recognized workers' compensation documentation certifying that a person is totally and permanently disabled; (7) any lawfully recognized pneumoconiosis documentation certifying that a person is totally and permanently disabled; or (8) any other lawfully recognized documentation certifying that a person is totally and permanently disabled.

(c) Renewals. --

(1) Senior citizens. -- If the claimant is age sixty-five or older, then after the claimant has filed for the exemption once with his or her assessor, there shall be no need for that claimant to refile unless the claimant moves to a new homestead.

(2) Disabled. -- If the claimant is permanently and totally disabled, then after the claimant has filed for the exemption once with his or her assessor, and signed a statement certifying that he or she will notify the assessor if he or she is no longer eligible for an exemption on the basis of being permanently and totally disabled and that the claimant will notify the assessor within thirty days of the discontinuance of the receipt of benefits for permanent and total disability, if the claimant originally claimed receipt of said benefits to document his or her claim for exemption, there shall be no need for that claimant to refile, unless the claimant moves to a new homestead.

(3) Waiver of exemption. -- Any person not filing his or her claim for exemption on or before December 1, shall be determined to have waived his or her right to exemption for the next tax year.

(4) Residential care exception. –- For purposes of this section, an otherwise qualified claimant who, as a result of illness, accident or infirmity, resides with a family member or is a resident at a nursing home, personal care home, rehabilitation center or similar facility is not considered to have moved to a new homestead.

§11-6B-5. Determination; notice of denial of claim or exemption.

(a) The assessor shall, as soon as practicable after a claim for exemption is filed, review that claim and either approve or deny it. If the exemption is denied, the assessor shall promptly, but not later than January 1, serve the claimant with written notice explaining why the exemption was denied and furnish a form for filing with the county commission should the claimant desire to take an appeal. The notice required or authorized by this section shall be served on the claimant or his or her authorized representative either by personal service or by certified mail.

(b) In the event that the assessor shall have information sufficient to form a reasonable belief that a claimant, after having been originally granted an exemption, is not eligible for said exemption, he or she shall deny the exemption on the next assessment date and shall promptly, but no later than January 1, serve the claimant with written notice explaining the reasons for the denial and furnish a form for filing with the county commission should the claimant desire to take an appeal.

§11-6B-6. Appeals procedure.

(a) Notice of appeal; thirty days. -- Any claimant aggrieved by the denial of his or her claim for exemption or the subsequent denial of his or her exemption may appeal to the county commission within thirty days after receipt of written notice explaining why the exemption was denied.

(b) Review; determination; appeal. -- The county commission shall complete its review and issue its determination as soon as practicable after receipt of the notice of appeal, but in no event later than the twenty-eighth day of February of the tax year for which the exemption is first applied. In conducting its review, the county commission may hold a hearing on the claim. The assessor or the claimant may apply to the circuit court of the county for review of the determination of the county commission in the same manner as is provided for appeals from the county commission in section twenty-five, article three of this chapter.

§11-6B-7. Property tax books.

(a) Property book entry. -- The exemption of the first $20,000 of assessed value shall be shown on the property books as a deduction from the total assessed value of the homestead.

(b) Levy; statement to homestead owner. -- When the $20,000 exemption is greater than the total assessed value of the eligible homestead, no taxes shall be levied. The sheriff shall issue a statement to the owner showing that no taxes are due.

§11-6B-8.

Repealed.

Acts, 1983 1st. Ex. Sess., Ch. 15.

§11-6B-9. Forms, instructions and regulations.

The Tax Commissioner shall prescribe and supply all necessary instructions and forms for administration of this article. Additionally, the Tax Commissioner may make all necessary rules and regulations for this article as provided in the state administrative procedure act in chapter twenty-nine-a of this code.

§11-6B-10. Criminal penalties; restitution.

(a) False or fraudulent claim for exemption. -- Any claimant who willfully files a fraudulent claim for exemption, and any person who knowingly assisted in the preparation or filing of such fraudulent claim for exemption or who knowingly supplied information upon which the fraudulent claim was prepared or allowed, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $50 nor more than $150, or imprisoned in the county jail for not more than six months, or both fined and imprisoned.

(b) Fraudulent assessments. -- (1) An assessor or employee of a county who, with intent to defraud the state, assesses the value of the eligible claimant's homestead for an amount which is in excess of its true and actual value or is in excess of the assessed value of similar property in his county, in order to increase the cost of the homestead exemption to his county and to thereby secure a larger reimbursement from the state, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or imprisoned in the county jail for not more than one year, or both fined and imprisoned. Each violation of this subsection shall constitute a separate offense.

(2) An assessor or employee of a county who, with intent to defraud a claimant, assesses the value of the eligible claimant's homestead for an amount which is in excess of its true and actual value or is in excess of the assessed value of similar property in his county, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or imprisoned in the county jail for not more than one year, or both fined and imprisoned. Each violation of this subsection shall constitute a separate offense.

(c) Failure to notify assessor. -- A claimant or his legal representative, who, prior to the next first day of July, fails to notify the assessor of the county wherein property subject to the homestead property tax exemption is located, that title to that property or a portion thereof was transferred by deed, grant, sale, gift, will or by the laws of this state regulating descent and distribution, that the property is no longer used and occupied for residential purposes exclusively by the claimant or that the claimant is no longer permanently and totally disabled, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned for not more than one year or both.

(d) In addition to the criminal penalties provided above, upon conviction of any of the above offenses, the court shall order that the defendant make restitution unto the state for all taxes not paid due to an improper exemption for the claimant and interest thereon at the legal rate until paid.

§11-6B-11. Severability.

If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect, impair or invalidate other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.

§11-6B-12. Effective date.

(a) The provisions of this article enacted in the year 1981 took effect on July 1, 1981.

(b) Amendments to this article enacted in the year 1990 shall, regardless of the effective date of this act, be used to determine the assessed value of property on which ad valorem property taxes are levied for tax years beginning on or after January 1, 1990. assessors and county commissioners are hereby authorized and directed to review the claims for homestead exemption for the current tax year filed in their counties prior to October 2, 1989, and to make such changes in their books for the current tax year as may be needed to give these amendments their intended effect, regardless of any other provision in this chapter that may prohibit such action. Any person who has already paid property taxes for tax year 1990, and who is considered eligible for homestead exemption under this article, may apply pursuant to section twenty-seven, article three of this chapter for a refund for property taxes erroneously paid.

§11-6C-1. Inventory included within scope of article.

Notwithstanding any other provisions of law, inventory of vehicles, as that term is defined in section one, article one, chapter seventeen-b of this code that is held for sale or lease by new or used vehicle dealers licensed under the provisions of article six, chapter seventeen-a of this code, or held for sale or lease by daily passenger car rental businesses licensed under the provisions of article six-d of said chapter, inventory of motorboats, as that term is defined in section one, article six of said chapter, that is held for sale or lease by a recreational vehicle dealer, as that term is defined in said section, that is licensed under the authority of section three, article six of said chapter, and farm equipment dealers' inventory, consisting of individual units of personal new or used property, each unit of which, upon its sale to a retail purchaser, must, as a matter of law, be titled in the name of the retail purchaser and registered with the Division of Motor Vehicles, shall be appraised for assessment purposes, as set forth in this article: Provided, That house trailers and factory-built homes shall be included within the scope of this article.

For the purposes of this article, "farm equipment" means equipment exclusively used in planting, cultivating, irrigation, and harvesting of agricultural products, but not marketing of such products. The term "farm equipment" includes, but is not limited to, the following equipment, and also includes attachments and repair parts for the following equipment: tractors; crawler tractors (other than bulldozers); walking tractors; cultivators; plows; harrows; power tillers; rotary tillers; spading machines; subsoilers; plastic mulch layers; planters and planting machines; seeders; mechanical transplanters; manure spreaders; fertilizer spreaders; insecticide and fertilizer sprayers; irrigation equipment; harvesters; fixed and portable belt and screw type conveyors exclusively used in agriculture; cotton pickers; hullers; swathers; windrowers; balers; bale movers exclusively used in agriculture; hay conditioners; hay mowers; mowing machines; mower/conditioners; hay rakes; hay tedders; feed grinders; grain carts; rock pickers; milking machines and milking machine components, animal trailers, to the extent that they constitute tangible personal property, apiary equipment: Provided, That the term "farm equipment" does not include: (1) Property that is not tangible personal property, (2) building materials and equipment that is installed into a building or structure so as to be converted upon installation into a fixture or into real property, (3) cars, trucks, motorcycles and any other self-propelled machines designed primarily for the transportation of persons or property on a street or highway, (4) trailers, or towed machines or apparatus designed primarily for the transportation of persons or property on a street or highway, (5) fork lifts, backhoes, earth movers, bulldozers, end loaders, power shovels, excavators or other equipment primarily designed to be used in earth moving, excavation or construction activity, or in the activity of warehouse materials handling and (6) airplanes, and other aircraft, and (7) all terrain vehicles, motorcycles and other off road vehicles primarily designed for recreational use; and >farm equipment dealers' means a person, partnership, corporation, association or other form of business enterprise which primarily sells farm equipment as defined above.

This article does not apply to units of inventory which are included in fleet sales, transactions between dealers or classified as heavy duty trucks of sixteen thousand pounds or more gross vehicular weight. For purposes of this article, inventory subject to the provisions of this article shall be denoted "dealer vehicle inventory", "dealer motorboat inventory", "daily passenger rental car inventory", "farm equipment dealers inventory" and "house trailer and factory-built homes inventory".

§11-6C-2. Method for determining market value of dealer vehicle inventory, dealer motorboat inventory, farm equipment dealers inventory, daily passenger rental car inventory and house trailer and factory-built homes inventory.

(a) For purposes of appraisal, the market value of dealer vehicle inventory, dealer motorboat inventory and farm equipment dealers inventory, as of July 1, of each year, shall be the gross sales or total annual sales of such inventory made by such dealer during the preceding calendar year, divided by twelve, for a dealer with respect to which or whom sales were made during the entire preceding year. For the purposes of this article, "gross sales" or "total annual sales" means the amount received in money, credits, property, services or other consideration from sales within this state without deduction on account of the cost of the property sold, amounts paid for interest or any other expenses whatsoever. Gross sales or total annual sales shall not be reduced by the value of an item of tangible personal property which is traded in for the purpose of reducing the purchase price of the item purchased. In the case of dealers who were not in business during the entire calendar year immediately preceding July 1, of that calendar year, the assessor shall estimate the market value of such inventory based on such data as may be available to him or her: Provided, That the assessor may extrapolate estimates using such sales data as may be available and reliable when sales are made for a period of three months or more during the prior year: Provided, however, That there shall be excluded from the appraisal calculations the value of those units which were not physically held as inventory by the owner of the inventory at any time during the preceding year. In all cases, the market value, so derived, shall serve as the basis for calculating the appraised value.

(b) For purposes of appraisal, the market value of daily passenger rental car inventory, as of July 1, of each year, shall be the gross value of all daily passenger rental cars made available by a daily passenger rental car business on the first day of each month of the immediately preceding calendar year: Provided, That the daily passenger rental car business shall add together the gross values and divide that sum by twelve. For purposes of this article, "gross value" means the lowest value for each vehicle as shown in a nationally accepted used car guide determined by the Tax Commissioner. To calculate the "gross value" of any vehicle that does not appear in a nationally accepted used car guide, the Tax Commissioner shall determine the percent of the manufacturer's suggested retail price for each such vehicle held as a daily passenger rental car without deduction on account of the cost of any inventory, amounts paid for interest or any other expenses whatsoever. In the case of daily passenger rental car businesses that were not in business during the entire calendar year immediately preceding July 1, of that calendar year, the assessor shall estimate the market value of such daily passenger rental car inventory based on such data as may be available to him or her: Provided, however, That the assessor may extrapolate estimates using the daily passenger rental car data that is made available and reliable when rentals were made for a period of three months or more during the prior year: Provided further, That there shall be excluded from the appraisal calculations the value of those units which were not physically held as daily passenger rental car inventory by the owner of the daily passenger rental car inventory at any time during the preceding year. In all cases, the gross value of daily passenger rental car inventory, so derived, shall serve as the basis for calculating the appraised value of the inventory. For purposes of this article, "daily passenger rental car inventory" includes all motor vehicles licensed as a Class A motor vehicle as defined in section one, article ten, chapter seventeen-a of this code.

(c) For purposes of appraisal, the market value of house trailer and factory-built homes inventory, as of July 1, of each year, shall be the gross sales or total annual sales of such inventory made by such dealer during the preceding calendar year, divided by twelve, for a dealer with respect to which or whom sales were made during the entire preceding year. For the purposes of this article, "gross sales" or "total annual sales" means the amount received in money, credits, property, services or other consideration from sales within this state without deduction on account of the cost of the property sold, amounts paid for interest or any other expenses whatsoever. Gross sales or total annual sales shall not be reduced by the value of an item of tangible personal property which is traded in for the purpose of reducing the purchase price of the item purchased. In the case of dealers who were not in business during the entire calendar year immediately preceding July 1, of that calendar year, the assessor shall estimate the market value of such inventory based on such data as may be available to him or her: Provided, That the assessor may extrapolate estimates using such sales data as may be available and reliable when sales are made for a period of three months or more during the prior year: Provided, however, That there shall be excluded from the appraisal calculations the value of those units which were not physically held as inventory by the owner of the inventory at any time during the preceding year. In all cases, the market value, so derived, shall serve as the basis for calculating the appraised value.

§11-6C-3. Owner to file return estimating market value.

The owner of dealer vehicle inventory, daily passenger rental car inventory, dealer motorboat inventory, farm equipment dealers inventory, or house trailer and factory-built homes inventory shall report the market value of such inventory, derived as set forth in section two of this article, to the assessor, as a part of the return required by law to be filed annually pursuant to the provisions of this chapter.

§11-6C-4. Determination of tax on dealer vehicle inventory, daily passenger rental car inventory, dealer motorboat inventory, farm equipment dealers inventory or house trailer and factory-built homes inventory.

The annual amount of tax levied upon the dealer vehicle inventory, daily passenger rental car inventory, dealer motorboat inventory, farm equipment dealers inventory or house trailer and factory-built homes inventory pursuant to article eight of this chapter shall be based upon the market value as determined pursuant to this article, times the assessment percentage then provided by law.

§11-6C-5. Intent of this article; Tax Commissioner to promulgate rules.

(a) This article is adopted to address the lack of uniformity, audit difficulties and business management issues arising in this state with respect to the assessment of the personal property held as new and used dealer vehicle inventory, daily passenger rental car inventory, dealer motorboat inventory, farm equipment dealers inventory or house trailer and factory-built homes inventory. Accordingly, the Legislature finds and declares that the adoption of this article will provide a more reliable and uniform method of determining market value of dealer vehicle inventory, daily passenger rental car inventory, dealer motorboat inventory, farm equipment dealers inventory or house trailer and factory-built homes inventory; minimize audit problems associated with such property; provide a predictable revenue stream for levying bodies; maximize the owner's ability to manage inventory; and provide clear guidance to local authorities by superseding the wide variety of otherwise lawful appraisal methods now in use in this state.

(b) The Tax Commissioner shall have the power to promulgate such rules as may be necessary to implement the provisions of this article.

§11-6D-1. Legislative findings and purpose.

Consistent with the public policy as stated in section one, article two-d, chapter twenty-four of this code, the Legislature hereby finds that the use of natural gas-based alternative fuels is in the public interest and promotes the general welfare of the people of this state insofar as it addresses serious concerns for our environment and our state's and nation's dependence on foreign oil as a source of energy. The Legislature further finds that by encouraging the use of natural gas-fueled and liquefied petroleum gas-fueled motor vehicles, the state will be reducing its dependence on foreign oil and attempting to improve its air quality. The Legislature further finds that the wholesale cost of fuel for certain natural gas-fueled and liquefied petroleum gas-fueled motor vehicles is significantly lower than the cost of fuel for traditional motor vehicles.

However, because the cost of motor vehicles which utilize natural gas-fueled or liquefied petroleum gas- fueled technologies remains high in relation to motor vehicles that employ more traditional technologies, citizens of this state who might otherwise choose a natural gas- fueled or liquefied petroleum gas-fueled motor vehicle are forced by economic necessity to continue using motor vehicles that are fueled by more conventional means. Additionally, the availability of commercial infrastructure to support natural gas-fueled and liquefied petroleum gas-fueled vehicles available to the public is inadequate to encourage the use of natural gas-fueled and liquefied petroleum gas-fueled motor vehicles. It is the intent of the Legislature that the alternative-fuel motor vehicle tax credit previously expired in 2006 be hereby reinstated with changes and amendments as set forth herein. Therefore, in order to encourage the use of natural gas-fueled and liquefied petroleum gas-fueled motor vehicles and possibly reduce unnecessary pollution of our environment and reduce our dependence on foreign sources of energy, there is hereby created an alternative-fuel motor vehicle tax credit and an alternative-fuel vehicle refueling infrastructure tax credit.

§11-6D-2. Definitions.

As used in this article, the following terms have the meanings ascribed to them in this section.

(a) "Alternative fuel". –

(1) For purchase or installations occurring on and after January 1, 2011, but prior to April 15, 2013, the term "alternative fuel" means and includes:

(A) Compressed natural gas;

(B) Liquefied natural gas;

(C) Liquefied petroleum gas;

(D) Ethanol;

(E) Fuel mixtures that contain eighty-five percent or more by volume, when combined with gasoline or other fuels, of the following:

(i) Methanol;

(ii) Ethanol; or

(iii) Other alcohols;

(F) Natural gas hydrocarbons and derivatives;

(G) Hydrogen;

(H) Coal-derived liquid fuels; and

(I) Electricity, including electricity from solar energy.

(2) For purchases or installations occurring on or after April 15, 2013, the term "alternative fuel" means and is limited to:

(A) Compressed natural gas;

(B) Liquefied natural gas; or

(C) Liquefied petroleum gas.

(b) "Alternative-fuel motor vehicle" or "qualified motor vehicle" means a motor vehicle that as a new or retrofitted or converted fuel vehicle:

(1) Operates solely on one alternative fuel;

(2) Is capable of operating on one or more alternative fuels, singly or in combination; or

(3) Is capable of operating on an alternative fuel and is also capable of operating on gasoline or diesel fuel.

(c) "Bi-fueled motor vehicle" means a motor vehicle fueled from two or more tanks, each of which stores a separate type of fuel, which has the ability to operate on an alternative fuel and another form of fuel. "Bi-fueled motor vehicles" as here defined are alternative-fuel motor vehicles.

(d) "Liquefied petroleum gas" means fuel commonly known and designated as "liquefied petroleum gas" or "LP gas". The term "liquefied petroleum gas" also means and includes:

(1) Propane;

(2) Butane; or

(3) A mix of gases used as motor fuel which is predominantly propane or butane, or predominantly a mixture of propane and butane.

(e) "Plug-in hybrid electric vehicle" means:

(1) A plug-in hybrid electric vehicle manufactured by an established motor vehicle manufacturer of plug-in hybrid electric vehicles that can operate solely on electric power and that is capable of recharging its battery from an on-board generation source and an off-board electricity source; and

(2) A plug-in hybrid electric vehicle conversion that provides an increase in city fuel economy of seventy-five percent or more as compared to a comparable nonhybrid version vehicle for a minimum of twenty miles and that is capable of recharging its battery from an on-board generation source and an off-board electricity source. A vehicle is comparable if it is the same model year and the same vehicle class as established by the United States Environmental Protection Agency and is comparable in weight, size and use. Fuel economy comparisons shall be made using city fuel economy standards in a manner that is substantially similar to the manner in which city fuel economy is measured in accordance with procedures set forth in 40 C. F. R. 600 as in effect on January 1, 2011.

(f) "Qualified alternative-fuel vehicle refueling infrastructure" means property owned by the applicant for the tax credit and used for storing alternative fuels and for dispensing such alternative fuels into fuel tanks of motor vehicles, including, but not limited to, natural gas supply lines, compression equipment, storage tanks and dispensing units for alternative fuel at the point where the fuel is delivered into a motor vehicle for consumption: Provided, That the property is installed and located in this state and is not located in or on a private residence or private home.

(g) "Qualified alternative-fuel vehicle home refueling infrastructure" means property owned by the applicant for the tax credit located on a private residence or private home and used for storing alternative fuels and for dispensing such alternative fuels into fuel tanks of motor vehicles, including, but not limited to, compression equipment, storage tanks and dispensing units for alternative fuel at the point where the fuel is delivered or for providing electricity to plug-in hybrid electric vehicles or electric vehicles: Provided, That the property is installed and located in this state.

(h) "Taxpayer" means any natural person, corporation, limited liability company or partnership subject to the tax imposed under article twenty-one, article twenty-three or article twenty-four of this chapter or any combination thereof.

§11-6D-3. Credit allowed for alternative-fuel motor vehicles and qualified alternative-fuel vehicle refueling infrastructure; application against personal income tax, business franchise tax or corporate net income tax; effective date.

The tax credits for the purchase of alternative-fuel motor vehicles or conversion to alternative-fuel motor vehicles, qualified alternative-fuel vehicle refueling infrastructure and qualified alternative-fuel vehicle home refueling infrastructure provided in this article may be applied against the tax liability of a taxpayer imposed by the provisions of either article twenty-one, article twenty-three or article twenty-four of this chapter, but in no case may more than one tax credit be granted under this article or any combination of articles set forth in this chapter for purchase of an alternative-fuel motor vehicle or for costs relating to conversion to an alternative-fuel motor vehicle, or for costs associated with alternative-fuel vehicle refueling infrastructure or for costs associated with alternative-fuel home refueling infrastructure as defined in this article. This credit shall be available for those tax years beginning on or after January 1, 2011, but shall not be available for, or with relation to, any purchase, expenditure, investment, installation, construction or conversion made in any tax year beginning after the termination dates specified in this article, as applicable to specified purchases, expenditures, investments, installations, construction or conversions.

§11-6D-4. Eligibility for credit.

A taxpayer is eligible to claim the credit against tax provided in this article if the taxpayer:

(a) Converts a motor vehicle that is presently registered in West Virginia to operate exclusively on an alternative fuel as defined in this article or to operate as a bi-fueled alternative-fuel motor vehicle; or

(b) Purchases from an original equipment manufacturer or an after-market conversion facility or any other automobile retailer, a new dedicated alternative-fuel motor vehicle or bi-fueled alternative-fuel motor vehicle for which the taxpayer then obtains a valid West Virginia registration; or

(c) Constructs or purchases and installs qualified alternative-fuel vehicle refueling infrastructure that is capable of dispensing alternative fuel for alternative-fuel motor vehicles.

(d) (1) The credit provided in this article is not available to and may not be claimed by any taxpayer under any obligation pursuant to any federal or state law, policy or regulation to convert to the use of alternative fuels for any motor vehicle.

(2) The credit provided in this article is not available to and may not be claimed by any taxpayer for construction or purchase and installation of alternative-fuel vehicle home refueling infrastructure on or after April 15, 2013.

(e) The credit provided in this article for purchase of an alternative-fuel motor vehicle or conversion of a motor vehicle to an alternative-fuel motor vehicle, is not available to and may not be claimed by any taxpayer in, or for, any tax year in which the taxpayer did not own the alternative-fuel motor vehicle for which the claim is filed on the last day of the taxpayer's tax year for which the credit is claimed.

(f) Effective date. –

The amendments to this article enacted in the 2013 Regular Legislative Session shall be effective upon passage.

§11-6D-5. Amount of credit for alternative-fuel motor vehicles.

(a) For taxable years beginning on and after January 1, 2011, but prior to termination or cessation of this credit as specified in this article, the amount of the credit allowed under this article for an alternative-fuel motor vehicle that weighs less than twenty-six thousand pounds is thirty-five percent of the purchase price of the alternative-fuel motor vehicle up to a maximum amount of $7,500 or fifty percent of the actual cost of converting from a traditionally fueled motor vehicle to an alternative-fuel motor vehicle up to a maximum amount of $7,500.

(b) For taxable years beginning on and after January 1, 2011, but prior to termination or cessation of this credit as specified in this article, the amount of the credit allowed under this article for an alternative-fuel motor vehicle that weighs more than twenty-six thousand pounds is thirty-five percent of the purchase price of the alternative-fuel motor vehicle up to a maximum amount of $25,000 or fifty percent of the actual cost of converting from a traditionally fueled motor vehicle to an alternative-fuel motor vehicle up to a maximum amount of $25,000.

§11-6D-6. Amount of credit for qualified alternative-fuel vehicle refueling infrastructure.

(a) For taxable years beginning on and after January 1, 2011, but prior to January 1, 2014, the amount of the credit allowed under this article for qualified alternative-fuel vehicle refueling infrastructure is equal to fifty percent of the total costs directly associated with the construction or purchase and installation of the alternative-fuel vehicle refueling infrastructure up to a maximum of $250,000: Provided, That if the qualified alternative-fuel vehicle refueling infrastructure is generally accessible for public use, the amount of the credit allowed will be multiplied by 1.25 and the maximum amount allowable will be $312,500. The amount of credit allowed may not exceed the cost of construction of the alternative-fuel vehicle refueling infrastructure.

(b) For taxable years beginning on and after January 1, 2014, but prior to termination or cessation of this credit as specified in this article, the amount of the credit allowed under this article for qualified alternative-fuel vehicle refueling infrastructure is equal to twenty percent per facility of the total costs directly associated with the construction or purchase and installation of the alternative-fuel vehicle refueling infrastructure up to a maximum of $400,000 per facility.

(c) The cost of construction of the alternative-fuel vehicle refueling infrastructure or alternative-fuel vehicle home refueling infrastructure eligible for a tax credit under this article does not include costs associated with exploration, development or production activities necessary for severing natural resources from the soil or ground.

(d) When the taxpayer is a pass-through entity treated like a partnership for federal and state income tax purposes, the credit allowed under this article for the year shall flow through to the equity owners of the pass-through entity in any manner that such equity owners see fit and is not required to flow through such equity owners in the same manner as distributive share flows through to the equity owners and in accordance with any legislative rule the Tax Commissioner may propose for legislative approval in accordance with article three, chapter twenty-nine-a of this code to administer this section.

(e) No credit allowed by this article may be applied against employer withholding taxes imposed by article twenty-one of this chapter.

§11-6D-7. Duration of availability of credit.

No person is eligible to receive a tax credit under this article for:

(1) An alternative-fuel motor vehicle purchased after December 31, 2017;

(2) A vehicle converted to an alternative-fuel motor vehicle after December 31, 2017;

(3) The construction or purchase and installation of qualified alternative-fuel vehicle refueling infrastructure occurring after December 31, 2017;

(4) The construction or purchase and installation of qualified alternative-fuel vehicle home refueling infrastructure occurring on or after April 15, 2013;

(5) Purchases of motor vehicles that operate on fuels other than compressed natural gas, liquefied natural gas or liquefied petroleum gas, occurring on or after April 15, 2013; or

(6) Conversions of motor vehicles to operate on fuels other than compressed natural gas, liquefied natural gas or liquefied petroleum gas, occurring on or after April 15, 2013.

§11-6D-8. Commissioner to design forms and schedules; promulgation of rules.

(a) The Tax Commissioner shall design and provide to the public simplified forms and schedules to implement and effectuate the provisions of this article.

(b) The Tax Commissioner shall promulgate new rules for the administration of this article consistent with its provisions and in accordance with article three, chapter twenty-nine-a of this code as the Commissioner deems necessary after the effective date of the amendments to this article. Such rules shall include rules relating to the necessary documentation required to be filed in order to take the tax credits allowed in this article.

(c) Within one year prior to the expiration of the credit established in this article, the State Tax Commissioner shall provide a written report to the Legislature setting forth the utilization of the credit, the benefit of the credit and the overall cost of the credit.

§11-6D-9. Carryover credit allowed; recapture of credit.

(a) If the alternative-fuel motor vehicle tax credit allowed under this article in the first taxable year in which the tax credit is allowable to offset tax exceeds the taxpayer's tax liability as determined in accordance with article twenty-one, article twenty-three and article twenty-four of this chapter for that taxable year, the excess may be applied for not more than the four next succeeding taxable years until the excess tax credit is used or the end of the fourth next succeeding taxable year, whichever occurs first. Any excess credit remaining at the end of the fourth next succeeding taxable year shall be forfeited.

(b) If the qualified alternative-fuel vehicle refueling infrastructure tax credit allowed under this article in any taxable year exceeds the taxpayer's tax liability as determined in accordance with article twenty-one, article twenty-three or article twenty-four of this chapter for that taxable year, the excess may be applied for succeeding taxable years until the full amount of the excess tax credit is used.

(c) No carryback to a prior taxable year is allowed for the amount of any unused credit in any taxable year.

(d) A tax credit is subject to recapture, elimination or reduction if it is determined by the State Tax Commissioner that a taxpayer was not entitled to the credit, in whole or in part, in the tax year in which it was claimed by the taxpayer. The amount of credit that flows through to equity owners of a pass-through entity may be recaptured or recovered from either the taxpayer or the equity owners in the discretion of the Tax Commissioner.

(e) The tax credit allowed under this article may not be sold, transferred or assigned to any person or entity. The tax credit allowed under this article does not attach to or follow the qualified motor vehicle or qualified infrastructure upon sale, resale, transfer, assignment or any other change of ownership of such vehicle or infrastructure. Credit shall not be available to any successor owner of any qualified motor vehicle or any qualified infrastructure property for which the credit was available to the original owner or predecessor owner.

§11-6E-1. Short title.

This article shall be known and cited as the "Specialized Manufacturing Production Property Valuation Act".

§11-6E-2. Definitions.

(a) When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined.

(1) "Die" means a device for shaping, forming or stamping material by pressure or by a blow, or for impressing a figure or design on material by pressure or by a blow, and other devices as set forth in this subdivision.

(A) The term "die" means and includes:

(i) Dies used in compression molding, transfer molding, injection molding, blow molding or blowing, vacuum forming and extrusion molding;

(ii) Extrusion dies and drawing dies consisting of a block made of metal or other material which is perforated by a hole having a particular cross section which imparts a shape to plastic, thermoplastic, hot or ductile metal or other material that is extruded through the hole by ramming or pressure, or drawn through the hole;

(iii) A block made of metal or other material which is pressed into a blank of material, often sheet metal, positioned between the die and a mold, so that the material is pressed into the mold by the die and caused to assume a desired shape in manufacturing; and

(iv) A block or blocks of metal or other material constructed in halves, which operate in such a way that, when a blank of sheet metal is positioned between the halves of the die and pressed between the halves of the die, a desired shape is imparted to the sheet metal.

(B) The term "die" does not include threading dies, screwing dies, chasers, or any die holder or die stock for threading dies, screwing dies or chasers. For purposes of this section, the terms "threading die", "screwing die" or "chaser" mean one or more blocks made of steel, or other material, threaded internally with cutting points, or surfaces for producing screw threads. Threading dies, screwing dies or chasers can be made in a single block or in segments.

(2) "Directly used in manufacturing", in relation to specialized manufacturing production property directly used in manufacturing, means directly used in those activities or operations which constitute an integral and essential part of the manufacturing activity, as contrasted with and distinguished from those activities or operations which are simply incidental, convenient or remote to the manufacturing activity.

 Those uses of specialized manufacturing production property which constitute direct use in the activity of manufacturing include only:

(A) Use of the property to cause a direct physical change upon property undergoing manufacturing;

(B) In the case of jigs, use of the property to physically control or direct the physical movement or operation of property undergoing manufacturing in conjunction with and during the making of a direct physical change upon that property, or use of a jig in direct physical contact with the property undergoing manufacturing as a checking fixture, to test the property undergoing manufacturing or part for conformity to specifications;

(C) In the case of patterns, use of a pattern in each production cycle to make a new mold in the ongoing manufacturing process, where the mold made from the pattern is directly used to cause a direct physical change upon property undergoing manufacturing; and

(D) In the case of templates, use of templates by placing them in physical contact with property undergoing manufacturing for the direct marking of, or direct location of, holes, contours, cuts, cutout sections or shapes to be incorporated into the manufactured property.

(3) "Form" means a mold, as defined in this section, or a frame, shape, body or implement around which or on which a manufactured product is shaped or made, and which is designed to cause the manufactured product to take on a specific particular shape.

(4) "Jig" means and includes a mechanical device used to accurately guide or locate a tool or other implement that causes a direct physical change in property undergoing manufacturing or used to maintain the correct position between property undergoing manufacturing and a tool or implement. The jig is mainly used for producing interchangeable parts or exact reproductions of the same manufactured item or product. The term "jig" shall not include any conveyor belt, roller conveyor, track conveyor, crane, chain line, chain conveyor or other apparatus which serves merely to move property from one operation or place in the manufacturing process to another operation or place. The term "jig" includes a checking fixture, which is a jig built to test manufactured parts produced from a set of dies or other manufactured parts, for conformity to specifications.

(5) "Manufacturer" means a person engaged in the activity of manufacturing in this state.

(6) "Manufacturing" means a systematic operation or integrated series of systematic operations engaged in as a business or segment of a business which transforms or converts tangible personal property by physical, chemical or other means into a different form, composition or character from that in which it originally existed. In no case shall the term "manufacturing" include the activities of building construction, construction of other structures or facilities affixed to or on realty, retailing or agriculture, food processing or food manufacturing, the operation of any restaurant or retail food preparation or sales operation, the production of any natural resource, contract mining or any other activity of severing, producing, processing or extracting any natural resource. Manufacturing production begins with the arrival of raw materials and ends when the property has reached that point where no further chemical, physical or other changes are to be made to the resultant property in the production process.

(7) "Manufacturing service provider" means a person engaged in a manufacturing activity who does not have legal title to or any economic interest in the tangible personal property transformed or converted by the manufacturing process, and who engages in the manufacturing activity as a service to another person.

(8) "Mold" means a form, block, vessel or matrix containing a cavity or cavities into which fluid, molten material, plastic material or malleable material is poured, pressed, rammed or injected to form a manufactured object conforming to the contours of the mold and having the desired shape, pattern or relief. The term "mold" includes molds and mold cavities used in compression molding, transfer molding, injection molding, blow molding or blowing, and vacuum forming.

For purposes of this article, the term "mold" does not include any sand casting flask or other apparatus or equipment used in conjunction with sand casting. However, patterns used in sand casting may constitute specialized manufacturing production property, as defined in this section.

(9) "Pattern" means a model for making a mold, as defined in this section, where production of the manufactured product by use of the mold entails the destruction of the mold with each production cycle, such as sand casting. The term "pattern" includes a model for making a sand casting mold into which molten metal is poured to form a casting.

A pattern qualifies as specialized manufacturing production property under this article only where the pattern must be repeatedly used in each production cycle to make a new mold in the ongoing manufacturing process, and where the mold made from the pattern is directly used in manufacturing to cause a direct physical change upon property undergoing manufacturing.

For purposes of this subdivision, the term "model" means a shape or figure made of wood, metal or other material having the basic shape of the manufactured product, with such appropriate sprues, runners and other necessary additional features as may be needed for efficient casting or production of the manufactured product.

(10) "Person" means and includes any state, or its political subdivisions or an agency of the State of West Virginia or its political subdivisions, or any individual, firm, partnership, joint venture, joint stock company, the government of the United States or its agencies, any public or private corporation, municipal corporation, cooperative, estate, trust, business trust, receiver, executor, administrator, any other fiduciary, any representative appointed by order of any court or otherwise acting on behalf of others, or any other group or combination acting as a unit.

(11) "Salvage value" means the lower of fair market salvage value or five percent of the original cost of the property.

(12) "Specialized manufacturing production property" means molds, jigs, dies, forms, patterns or templates, as defined in this section, directly used in manufacturing. Molds, jigs, dies, forms, patterns and templates directly used in manufacturing may qualify as specialized manufacturing production property notwithstanding the fact that the molds, jigs, dies, forms, patterns and templates may be owned by a person other than the West Virginia manufacturer or the West Virginia manufacturing service provider. In no case shall specialized manufacturing production property include any property not actively and directly used by a West Virginia manufacturer or West Virginia manufacturing service provider in the activity of manufacturing.

For purposes of this article, specialized manufacturing production property does not include:

(A) Research and development equipment used in developing new products or improving present products;

(B) Computers and computer software;

(C) Layout and design equipment, including computers and computer software;

(D) Machinery, tools, parts and materials used to repair equipment, including equipment directly used in the manufacturing process;

(E) Drawings, blueprints or blueprinting equipment;

(F) Tangible personal property used in testing and inspecting products on the production line or elsewhere for quality control purposes: Provided, That this exclusion shall not apply to tangible personal property which would otherwise meet the definition of a jig;

(G) Equipment, and supplies used in packaging or packing manufactured products for sale; and

(H) Any sand casting flask or sand casting equipment or other apparatus used in conjunction with sand casting. However, patterns used in sand casting may constitute specialized manufacturing production property.

(I) Any equipment or property other than molds, jigs, dies, forms, patterns or templates, as defined in this section.

(13) "Template" means an instrument or implement, often in the form of a flat or contoured sheet, plate, or strip of metal, plastic, wood or other material, having markings or lines, perforations, cuts, cutout sections, or one or more edges shaped to conform to a desired shape or any combination of perforations, cuts, cutout sections or shaped edges, to be used as a guide or gauge for marking locations for, or otherwise locating the placement of cuts, cutout sections, holes or a desired shape to be transferred to the property undergoing manufacturing. Only those templates, as defined in this section, which are physically placed upon the property undergoing manufacturing for the direct marking of, or direct location of, holes, contours, cuts, cutout sections or shapes to be incorporated into the property qualify as specialized manufacturing production property for purposes of this article.

In no case shall templates constitute specialized manufacturing production property for purposes of this article if the templates are used in:

(A) Drafting, drawing or design;

(B) Research and development;

(C) Layout and design of products or production equipment;

(D) Set up, adjustment, ongoing operation or repair of production machinery, tools and parts or other machinery, tools and parts;

(E) Testing and inspecting products on the production line or elsewhere for quality control purposes: Provided, That this exclusion shall not apply to tangible personal property which would otherwise meet the definition of a jig; or

(F) Packaging or packing manufactured products for sale.

§11-6E-3. Valuation of specialized manufacturing production property.

Notwithstanding any other provision of this code to the contrary, the value of specialized manufacturing production property, for the purpose of ad valorem property taxation under this chapter and under Article X of the Constitution of this state, shall be its salvage value.

§11-6E-4. Initial determination by county assessor.

The assessor of the county in which a specific item of property is located shall determine, in writing, whether that specific item of property is specialized manufacturing production property subject to valuation in accordance with this article. Upon making a determination that a taxpayer has specialized manufacturing production property, the county assessor shall notify the Tax Commissioner of that determination, and shall provide such information to the Tax Commissioner as the Tax Commissioner may require relating to that determination.

§11-6E-5. Protest and appeal.

At any time after the property is returned for taxation but prior to January 1, of the assessment year, any taxpayer may apply to the county assessor for information regarding the issue of whether any particular item or items or property constitute specialized production manufacturing property under this article which should be subject to valuation in accordance with this article. If the taxpayer believes that some portion of the taxpayer's property is subject to the provisions of this article, the taxpayer shall file objections in writing with the county assessor. The county assessor shall decide the matter by either sustaining the protest and making proper corrections, or by stating, in writing if requested, the reasons for the county assessor's refusal. The county assessor may, and if the taxpayer requests, the county assessor shall, before January 1, of the assessment year, certify the question to the Tax Commissioner in a statement sworn to by both parties, or if the parties are unable to agree, in separate sworn statements. The sworn statement or statements shall contain a full description of the property and any other information which the Tax Commissioner may require.

The Tax Commissioner shall, as soon as possible on receipt of the question, but in no case later than the twenty-eighth day of February of the assessment year, instruct the county assessor as to how the property shall be treated. The instructions issued and forwarded by mail to the county assessor are binding upon the county assessor, but either the county assessor or the taxpayer may apply to the circuit court of the county for review of the question of the applicability of this article to the property in the same fashion as is provided for appeals from the county commission in section twenty-five, article three of this chapter. The Tax Commissioner shall prescribe forms on which the questions under this section shall be certified and the Tax Commissioner has the authority to pursue any inquiry and procure any information which may be necessary for disposition of the matter.

§11-6E-6. Effective date.

This article shall be effective on and after July 1, 1997.

§11-6F-1. Legislative findings.

The Legislature finds that the encouragement of economic growth and development in this state is in the public interest and promotes the general welfare of the people of this state. The Legislature further finds that the ad valorem property tax valuation set forth in this article for certified capital addition property, as defined in section two of this article, will help preserve the tax base and preserve and create jobs attributable to manufacturing facilities existing in this state.

§11-6F-2. Definitions.

As used in this article, the term:

“Certified capital addition property” means all real property and personal property included within or to be included within a qualified capital addition to a manufacturing facility that has been certified by the State Tax Commissioner in accordance with §11-6F-4 of this code: Provided, That airplanes and motor vehicles licensed by the Division of Motor Vehicles are not certified capital addition property.

“Manufacturing” means any business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number of 31, 32, or 33. For purposes of this article, manufacturing also includes the processing of raw natural gas or oil to recover or extract liquid hydrocarbons, which activity is classified under North American Industry Classification System code number 211130. This definition does not mean or include any other processes or activities classified, categorized, grouped, or identified under North American Industry Classification System code number 211130.

“Manufacturing facility” means any factory, mill, chemical plant, refinery, warehouse, building or complex of buildings, including land on which it is located, and all machinery, equipment, improvements, and other real property and personal property located at or within the facility used in connection with the operation of the facility in a manufacturing business.

“Personal property” means all property specified in §2-2-10(q) of this code and includes, but is not limited to, furniture, fixtures, machinery, and equipment, pollution control equipment, computers, and related data processing equipment, spare parts, and supplies.

“Qualified capital addition to a manufacturing facility” means either:

(1) All real property and personal property, the combined original cost of which exceeds $50 million to be constructed, located, or installed at or within two miles of a manufacturing facility owned or operated by the person making the capital addition that has a total original cost before the capital addition of at least $100 million. If the capital addition is made in a steel, chemical, or polymer alliance zone as designated from time-to-time by executive order of the Governor, then the person making the capital addition may, for purposes of satisfying the requirements of this subsection, join in a multiparty project with a person owning or operating a manufacturing facility that has a total original cost before the capital addition of at least $100 million if the capital addition creates additional production capacity of existing or related products or feedstock or derivative products respecting the manufacturing facility, consists of a facility used to store, handle, process, or produce raw materials for the manufacturing facility, consists of a facility used to store, handle, or process natural gas to produce fuel for the generation of steam or electricity for the manufacturing facility or consists of a facility that generates steam or electricity for the manufacturing facility, including, but not limited to, a facility that converts coal to a gas or liquid for the manufacturing facility’s use in heating, manufacturing or generation of electricity. When the new capital addition is a facility that is or will be processing raw natural gas or oil to recover or extract liquid hydrocarbons, or is a manufacturing facility that uses product produced at a facility engaged in processing of raw natural gas or oil to recover or extract liquid hydrocarbons, then wherever the term “100 million” is used in this subsection, the term “20 million” shall be substituted and where the term “50 million” is used, the term “10 million” shall be substituted; and where the term “50 million” is used, the term “10 million” shall be substituted; and that beginning on and after July 1, 2021, when the new capital addition is a facility that is or may be classified under the North American Industry Classification System with a six-digit North American Industry Classification System code for a product produced at a facility with code numbers 332992 or 332994, as defined on January 1, 2021, then wherever the term “100 million” is used in this subsection, the term “2 million” shall be substituted and where the term “50 million” is used, the term “1 million” shall be substituted; or

(2)(A) All real property and personal property, the combined original cost of which exceeds $2 billion to be constructed, located, or installed at a facility, or a combination of facilities by a single entity or combination of entities engaged in a unitary business, that:

(i) Is or will be engaged in processing of raw natural gas or oil to recover or extract liquid hydrocarbons; or

(ii) Is a manufacturing facility that uses one or more products produced at a facility described in subparagraph (i) above; or

(iii) Is a manufacturing facility that uses one or more products produced at a facility described in subparagraph (ii) of this subdivision.

(B) All real property and personal property, the combined original cost of which exceeds $2 million to be constructed, located, or installed at a facility, or a combination of facilities by a single entity or combination of entities engaged in a unitary business, that is or may be classified under North American Industry Classification System with a six-digit code number 332992 or 332994 as defined on January 1, 2021.

(C) No preexisting investment made, or in place before the capital addition is required for property specified in this subdivision. The requirements set forth in subdivision (1) of this subsection do not apply to property specified in this subdivision relating to:

(i) Location or installation of investment at or within two miles of a manufacturing facility owned or operated by the person making the capital addition;

(ii) Total original cost of preexisting investment before the capital addition of at least $100 million or $20 million; or

(iii) Multiparty projects.

“Real property” means all property specified in §2-2-10(p) of this code and includes, but is not limited to, lands, buildings, and improvements on the land such as sewers, fences, roads, paving, and leasehold improvements: Provided, That for capital additions certified on or after July 1, 2011, the value of the land before any improvements shall be subtracted from the value of the capital addition and the unimproved land value shall not be given salvage value treatment.

§11-6F-3. Tax treatment of certified capital addition property.

Notwithstanding any other provisions of law, the value of certified capital addition property, for purposes of ad valorem property taxation under this chapter, is its salvage value, which for purposes of this article is five percent of the certified capital addition property's original cost. For capital additions certified on or after July 1, 2011, the value of the land before any improvements shall be subtracted from the value of the capital addition and the unimproved land value shall not be given salvage value treatment.

§11-6F-4. Application and certification.

Any person seeking designation of property as certified capital addition property shall first make a sworn application to the State Tax Commissioner on forms prescribed by the State Tax Commissioner on or before the date the property is first required to be reported on an annual return for ad valorem property tax purposes. The State Tax Commissioner shall within ninety days of the application determine in writing whether the property is or will be part of a qualified capital addition to a manufacturing facility as defined in section two of this article and shall provide a copy of the written determination to the applicant and the assessor or assessors in the county or counties in which the manufacturing facility is located. The applicant may file an appeal with the State Tax Commissioner to have a formal hearing for a review and redetermination on qualified capital additions to a manufacturing facility which have been disallowed by the State Tax Commissioner within thirty days of the official written notification from the State Tax Commissioner. After the State Tax Commissioner determines that property is or will be part of a qualified capital addition to a manufacturing facility, the property is and remains certified capital addition property for purposes of this article until the earlier of: (a) The disposition of the property to an unrelated third party other than a transferee who continues to operate the manufacturing facility; (b) the cessation of all business at the manufacturing facility; or (c) with regard to: (1) Property described in subdivision (1), subsection (e), section two of this article, the tenth year succeeding the year in which the qualified capital addition to a manufacturing facility to which the property relates is first placed in service; or (2) property described in subdivision (2), subsection (e), section two of this article, the twenty-fifth year succeeding the year in which the qualified capital addition to a manufacturing facility to which the property relates is first placed in service.

All applications and determinations under this section constitute return information and are subject to section twenty-three, article one-a of this chapter. The State Tax Commissioner shall report annually the number of applications filed, certified, denied and pending pursuant to this section for the preceding year along with recommendations regarding the structure, benefits and costs of the valuation method specified in this article to the Joint Committee on Government and Finance and to the Governor: Provided, That identifying characteristics and facts about applicants may not in any event be disclosed under this section.

§11-6F-5. Authority to propose rules.

The State Tax Commissioner shall propose rules for promulgation in accordance with article three, chapter twenty-nine-a of this code for the administration of this article as may be necessary to implement the provisions of this article: Provided, That the State Tax Commissioner may promulgate emergency rules to implement the provisions of this article.

§11-6F-6. Effective date, expiration of two-mile limitation.

(a) This article is effective for the tax years beginning on and after the first day of July, one 1997.

(b) Notwithstanding any other provision of this article to the contrary, the requirement that a qualified capital addition to a manufacturing facility be located or installed at or within two miles of a preexisting manufacturing facility owned or operated by the person making the capital addition, or by a multiple party project participant, is null, void and of no further force or effect for otherwise qualified capital addition to a manufacturing facility placed in service or use on and after the first day of January 2023.

§11-6G-1.

Repealed.

Acts, 1999 Reg. Sess., Ch. 265.

§11-6G-2. Disclosure of required information to the Tax Commissioner.

(a) "Interstate motor vehicle," for purposes of this article, is defined as every truck, road tractor or semitrailer used as an interstate motor vehicle registered under a proportional registration agreement.

(b) The procedure for determining the value thereof is exclusively provided for under section two of this article.

(c) The words "owner or operator," as applied herein to trucks or semitrailers used as an interstate motor vehicle in the transportation of property, shall include every company incorporated by or under the laws of this state, or doing business in this state, whether incorporated or not, and any person or association of persons, owning or operating any truck or semitrailer used as an interstate motor vehicle in the transportation of property doing business partly or wholly within this state.

(d) Every interstate commercial motor vehicle covered by this article shall pay such taxes based upon the assessments as are required by law pursuant to rules promulgated by the Tax Commissioner.

§11-6G-3. Interstate motor vehicle business; calculation of tax.

(a) In the case of interstate motor vehicles used for the transportation of property and which are registered under a proportional registration agreement, pursuant to the provisions of section ten-a, article two, chapter seventeen-a of this code, the owners, operator or operators, for each interstate motor vehicle, on forms prescribed by the Commissioner of Motor Vehicles, shall disclose the total miles driven in West Virginia and the total miles driven in any other states as reported in the most recent taxable year to the Division of Motor Vehicles pursuant to any proportional registration agreement on file therewith. The return shall, additionally, show the gross capital cost of the interstate motor vehicle to the purchaser thereof and the year the purchaser acquired the interstate motor vehicle.

(b) Ad valorem fees provided for in this chapter shall, notwithstanding the provisions of section five, article one-c of this chapter, be determined as follows for: (1) The gross capital cost of an interstate motor vehicle shall be multiplied by a percentage factor representing the remainder of the vehicle's value after depreciation according to a depreciation schedule established by the Tax Commissioner, which calculation shall yield the appraised value of the vehicle, which appraised value shall be multiplied by sixty percent to yield the assessed value; (2) for the interstate truck, road tractor, or power unit, registered in this state as part of a fleet registered under any proportional registration agreement under the provisions of section ten-a, article two, chapter seventeen-a of this code, the assessed value shall be multiplied by the apportioned percentage calculated in accordance with the articles and bylaws of any proportional registration agreement for the mileage reporting year, as reported to the Division of Motor Vehicles for the corresponding registration year pursuant to any proportional registration agreement on file therewith to obtain the apportioned value, which apportioned value shall be multiplied by the applicable rate of tax.

§11-6G-3a. Reduced fees for portion of year.

The ad valorem fees prescribed in section three of this article are for the entire fiscal year: Provided, That when application for a proportional registration is made between August 1, and the thirty-first day of August, inclusive, in any fiscal year, the fee for registration is eleven-twelfths of the yearly fee; when application for the registration is made between September 1, and September 30, inclusive, in any fiscal year, the fee for registration is ten-twelfths of the yearly fee; when application for the registration is made between October 1, and the thirty-first day of October, inclusive, in any fiscal year, the fee for registration is nine-twelfths of the yearly fee; when application for the registration is made between November 1, and November 30, inclusive, in any fiscal year, the fee for registration is eight-twelfths of the yearly fee; when application for registration is made between December 1, and December 31, inclusive, in any fiscal year, the fee for registration is seven-twelfths of the yearly fee; when application for registration is made between January 1, and the thirty-first day of January, inclusive, in any fiscal year, the fee for registration is one half of the yearly fee; when application for registration is made between February 1 and the last day of February, inclusive, in any fiscal year, the fee for registration is five-twelfths of the yearly fee; when application for registration is made between March 1 and the thirty-first day of March, inclusive, in any fiscal year, the fee for registration is one-third of the yearly fee; when application for registration is made between April 1 and April 30, inclusive, in any fiscal year, the fee for registration is one-fourth of the yearly fee; when application for registration is made between May 1 and the thirty-first day of May, inclusive, in any fiscal year, the fee for registration is two-twelfths of the yearly fee; and when application for registration is made between June 1 and June 30, inclusive, in any fiscal year, the fee for registration is one-twelfth of the yearly fee.

§11-6G-3b. Reduced fees for transfer of vehicles.

The ad valorem fees prescribed in sections three and three-a of this article shall be reduced in the amount of ad valorem fees paid on the original vehicle upon the transfer of registration by an owner from the original vehicle to another vehicle of the same class. The reduction in the amount of ad valorem fees paid on the original vehicle shall be prorated monthly up to the amount of ad valorem fees owed on the vehicle to which registration is being transferred. Any remainder of ad valorem fees paid on the original vehicle shall be reviewed by the interstate appeals board, created in section seven of this article.

§11-6G-4. Form and manner of making disclosure; failure to make disclosure; criminal penalty.

All disclosures to be made to the motor vehicles commissioner, under this chapter, shall be made in conformity with any reasonable requirement of the motor vehicles commissioner of which the person making the disclosure shall have had notice, and shall be made upon forms which may be furnished by the motor vehicles commissioner, and according to instructions which the motor vehicles commissioner may give relating thereto, and to the description and itemizing of the property. Such owner or operator, whether a natural person, or a corporation or company, failing to make such disclosure as herein required shall be guilty of a misdemeanor and, fined $1,000 for each month such failure continues.

§11-6G-5. Compelling such disclosure; procuring information and tentative assessments by motor vehicles commissioner.

(a) If any owner or operator fails to make disclosure within the time required by section one of this article, it shall be the duty of the Commissioner of Motor Vehicles to take steps as may be necessary to compel such compliance, and to enforce any and all penalties imposed by law for such failure, pursuant to his or her authority under this article as well as section ten, article two, chapter seventeen-a, and section ten-a, article two, chapter seventeen-a of this code.

(b) The disclosure delivered to the motor vehicles commissioner shall be examined by him or her, and if it be found insufficient in form or in any respect defective, imperfect or not in compliance with law, he or she shall compel the person required to make it to do so in proper and sufficient form, and in all respects as required by law.

(c) If any owner or operator fails to make such disclosure, the motor vehicles commissioner shall proceed, in a manner as to him or her may seem best, to obtain the facts and information required to be furnished by the disclosures.

(d) The motor vehicles commissioner may send for persons and papers, and may compel the attendance of any person and the production of any paper necessary, in the opinion of the motor vehicles commissioner, to enable him or her to obtain the information required for the proper discharge of his or her duties under this section.

§11-6G-6. Failure to give information required by motor vehicles commissioner; criminal penalty.

If any person shall refuse to appear before the motor vehicles commissioner when required to do so, as aforesaid, or shall refuse to testify before the motor vehicles commissioner in regard to any matter as to which the motor vehicles commissioner may require him to testify, or if any person shall refuse to produce any paper in his possession or under his control, which the motor vehicles commissioner may require him to produce, every such person shall be guilty of a misdemeanor and, fined $500, and may be imprisoned not less than one nor more than six months, at the discretion of the court.

§11-6G-7. Adjustment of valuation by interstate commerce appeals board.

There is hereby created the interstate commerce appeals board the membership of which shall be comprised of the Tax Commissioner or his or her designee, the motor vehicles commissioner or his or her designee, and the State Auditor or his or her designee. The interstate commerce appeals board shall meet the first Monday in July, unless the first Monday is a holiday at which time the interstate commerce appeals board shall meet upon the first business day thereafter. In the event of an emergency, the interstate commerce appeals board may be convened upon the agreement of two of the three members of the board. Any time before an owner or operator appeals a valuation to circuit court, as provided for in section eight of this article, the interstate commerce appeals board may, after consideration of all relevant facts and evidence, adjust the valuation made by the interstate commerce appeals board pursuant to section eleven of this article.

§11-6G-8. Appeal from valuation by board.

Any owner or operator claiming to be aggrieved by any such decision may, within the time aforesaid, apply by petition in writing, duly verified, to the circuit court of Kanawha County, and jurisdiction is hereby conferred upon and declared to exist in such court, in which such application is filed, to grant, docket and hear such appeal; and such appeal, as to all of the property so charged, forthwith be allowed by such court so applied to, and be heard by such court as to all of such property as soon as possible after the appeal is docketed, but notice in writing of such petition shall be given to the motor vehicles commissioner, by mailing a copy of the petition for an appeal filed as aforesaid, which said petition shall recite the fact that copies of such petition have been sent by registered mail. Notice in writing of the hearing shall be given by the motor vehicles commissioner to the State Tax Commissioner and the State Auditor at least fifteen days beforehand. Upon such hearing the court shall hear all such legal evidence as shall be offered on behalf of the state or any other county, district or municipal corporation interested, or on behalf of the appealing owner or operator. If the court be satisfied that the value so charged by the motor vehicles commissioner and affirmed or determined by the interstate commerce appeals board, is correct, it shall confirm the same, but if it be satisfied that the value so fixed by the board or the motor vehicles commissioner is either too high or too low, subject to the assessment valuations provided for in subsection (b), section eleven of this article, the court shall correct the valuation so made and shall ascertain and fix the true and actual value of such property according to the facts proved, and shall certify such value to the Auditor, motor vehicles commissioner and to the Tax Commissioner. The state or the owner or operator may appeal to the Supreme Court of Appeals if the proportional assessed value of the property be $50,000 or more.

If the court to which an application for appeal would properly be made as aforesaid shall not be in session, the judge thereof in vacation shall forthwith allow the appeal, and if the judge thereof be disqualified or for any reason not be available, the filing of the aforesaid petition in the office of the clerk of the circuit court of Kanawha County, within the time of aforesaid, shall constitute sufficient compliance with this section, and the appeal shall thereafter be proceeded with as otherwise provided in this section.

§11-6G-9. Certification of levies to Auditor.

(a) The clerk of the county commission of every county in which any property lies which was so assessed shall, within thirty days after the county and district levies are laid by such commission, certify to the Auditor the amount levied upon each $100 value of the property of each class in the county for county purposes, and on each $100 of the value of the property of each class in each magisterial district for the district purposes. It shall be the duty of the secretary of the board of Education of every school district and independent district in which any part of the property lies, within thirty days after the levies are laid therein for free school and building purposes, or either, to certify to the Auditor the amount so levied on each $100 value of the property of each class therein for each of such purposes; and it shall be the duty of the recorder, clerk or other recording officer of every municipal corporation in which any part of the property lies, within the same time, after levies are laid therein for any of the purposes authorized by law, to certify to the Auditor the amount levied upon each $100 value of the property of each class therein for each and every purpose.

(b) Such county levy rates shall be reported to the Auditor for use in the following taxable year's assessment pursuant to the provisions of section eleven, article six-d of this chapter.

(c) For purposes of establishing the valuation rate to be supplied to the motor vehicles commissioner by the Auditor and the Tax Commissioner, the Auditor shall use such figures and amounts as are certified to him or her under this section one year in arrears.

§11-6G-10. Failure of officers to perform duties as to property of interstate motor vehicle corporations.

Any clerk of a county commission, secretary of the board of Education, or recorder, clerk or other recording officer of a municipal corporation, who shall fail to perform any of the duties herein required of him shall be guilty of a misdemeanor and, upon conviction thereof, fined not less than $100 nor more than $500. In case of the failure of any such officers to furnish to the Auditor the certificate herein required, the Auditor may obtain the rate of taxation for any of said purposes from the copies of the land books on file in his office, if the same be found in such books, if not, in such other way or manner as he may deem necessary or proper for the purpose.

§11-6G-11. Injunction to restrain collection of tax.

No injunction shall be awarded by any court or judge to restrain the collection of the taxes, or any part of them, so assessed upon the property of such owner or operator, except upon the ground that the assessment thereof was in violation of the Constitution of the United States, or of this state; or that the same were fraudulently assessed, or that there was a mistake made in the amount of taxes properly chargeable on the property of such owner or operator; and in the latter case no such injunction shall be awarded unless application be first made to the interstate commerce appeals board to correct the mistake claimed, and such board shall refuse to do so, which fact shall be stated in the bill, nor unless the complainant pay into the treasury of the state all taxes appearing by the bill of complaint to be owing.

§11-6G-12. Payment of assessment by owner or operator.

Beginning on July 1, 1999, it shall be the duty of the foreign registered owner or operator with interstate operations within and through West Virginia, so assessed and charged, to pay annually the amount of such ad valorem fees, and such registration fees as are set by the motor vehicles commissioner as are required into the treasury of the state by delivering payment of the same to the Commissioner of Motor Vehicles in the form and manner prescribed by him or her. Further, beginning with the renewal or registration year starting July 1, 1999, it shall be the duty of the Commissioner of Motor Vehicles to assess and charge the owner or operator the annual amount of ad valorem fees and registration fees owed. The ad valorem and registration fees will be assessed and charged annually prior to the registration year during the renewal period. It shall be the duty of the owner or operator with interstate operations and domiciled in the state, so assessed and charged, to pay annually prior to the registration, the amount of taxes and registration fees set by the motor vehicles commissioner in the form and manner prescribed by him or her. The payment of taxes by any owner or operator shall not prejudice or affect the right of the owner or operator to obtain relief against the assessment or valuation of its property in proceedings now pending or hereafter brought under the provisions of section eight of this article, or in any suit, action or proceeding in which relief may be obtainable; and if under the provisions of said section eight or in any suit, action or proceeding, it be ascertained that the assessment or valuation of the property of the owner or operator is too high and the same is accordingly corrected, it shall be the duty of the Auditor of the state to issue to the owner or operator a certificate showing the amount of taxes and which have been overpaid, and the certificate shall be receivable thereafter for the amount of overpayment in payment of any ad valorem fees and assessed against the property of the owner or operator, its successors or assigns. It shall likewise be the duty of said Auditor to certify to the county commission, school districts and municipalities, the amounts of the respective overpayments distributable to such counties, school districts and municipalities.

Implementation of collection of assessments upon interstate commercial motor vehicles by the Commissioner of Motor Vehicles shall begin July 1, 1999. The motor vehicles commissioner, upon receipt of funds from other jurisdictions under a proportional registration agreement, shall deliver the funds received to the Auditor beginning in August, 1999, and thereafter every thirty days in arrears. All moneys received by the Auditor under the provisions of this section shall be transmitted to the several counties within thirty days from receipt thereof.

§11-6G-13. No release of taxes assessed against such corporations.

Neither the county commission of any county, nor any Board of Education, nor the municipal authorities of any incorporated town, shall have jurisdiction, power or authority, by compromise or otherwise, to remit or release any portion of the taxes so assessed upon the property of any owner or operator. It shall be the duty of the motor vehicles commissioner to collect the whole thereof, regardless of any order or direction of any county commission, Board of Education or municipal authority to the contrary. Any member of the county commission or Board of Education, or of the council of a municipal corporation, who shall vote to remit or release any part of the taxes, so assessed on the property of any owner or operator, shall be guilty of a misdemeanor and, fined $500, and shall be removed from his or her office by the court by which the judgment of the fine is rendered, in addition to the fine.

§11-6G-14. Accounting for levies against interstate commercial motor vehicle corporations.

Subject to the provisions of subsection (b), section eleven of this article, when such taxes are paid into the treasury, the Auditor shall account to the sheriff of each of the counties, to which any sum so paid in for county levies belongs, for the amount due such county, and may arrange the same with such sheriff in any settlement for state taxes in such a way as may be most convenient; and the sheriff shall account to the county commission of his county for the amount so received by him in the same manner as for other county levies. The amount so paid for each district and independent school district shall be added to the distributable share of the school fund payable to such district, and shall be paid upon the requisition of the county superintendent of free schools in like manner as other school moneys are paid.

§11-6G-15. Certification by Auditor of amount chargeable to sheriff from levies against interstate motor vehicles; payment of amount due municipality.

For collection year 1999, the Auditor shall hold such funds in an interest bearing escrow account until March 20, 2000, when such funds collected by the motor vehicles commissioner including the interest in the escrow account will be disbursed to the counties per the requirements of section eighteen of this article. Thereafter, the amount so paid in for each municipal corporation shall, within thirty days of being received by the Auditor, be paid over to the sheriff, or the treasurer of such municipal corporation, or to such other officer of the municipality as the council may designate, and the Auditor shall report such payment to the council. But the failure of the clerk of any county commission, or the secretary of any Board of Education, or the proper officer of any municipal corporation, to certify the levies to the Auditor within the time herein prescribed shall not invalidate or prevent the assessment required by this article, but the Auditor shall make the assessment and proceed to collect or certify the same to the sheriff as soon as practicable after he shall have obtained the information necessary to make such assessment.

§11-6G-16. Lien of taxes; notice; collection by suit.

The amount of taxes assessed under this article shall constitute a debt due the state or county, district or municipal corporation entitled thereto, and shall be a lien on all of the property and assets of the taxpayer within the state. The lien shall attach as of December 31, following the commencement of the assessment year, and shall be prior to all other liens and charges. It shall be the duty of the Attorney General to enforce the collection of such taxes, and for that purpose he may distrain upon any personal property of such delinquent taxpayer, or a sufficient amount thereof to satisfy said taxes, including accrued interest, penalties and costs.

The Attorney General may also enforce the lien created by this section on the real estate of such delinquent taxpayer by instituting a suit, or suits, in equity in the circuit court of Kanawha County, in the name of the state, in which such delinquent taxpayers shall be made defendants. In the bill filed in any such suit it shall be sufficient to allege that the defendant or defendants have failed to pay the taxes hereunder and that each of them justly owes the amount of property taxes, levies and penalties stated therein, which amount shall be computed up to the first day of the month in which the bill was filed. No such defendant shall plead that the motor vehicles commissioner failed to give notice as prescribed by this section. If, upon the hearing of such suit, it shall appear to the court that any defendant has failed to pay such taxes and accrued penalties, the court shall enter a decree against such defendant for the amount due, and if the decree be not paid within ten days after made, the court shall enter a decree directing a sale of the real estate subject to said lien, or so much thereof as may be necessary to satisfy said taxes, including interest, penalties and costs. When two or more taxpayers are included in one suit, the court shall apportion the cost thereof among them as it may deem just.

§11-6G-17. Operating fund for interstate commerce disclosure division in Auditor's office.

The Auditor shall establish a special operating fund in the state Treasury for the interstate commerce disclosure division in his or her office. The Auditor shall pay into the fund two percent of the gross receipts of all moneys collected as provided for in this article. Up to one percent of the gross receipts shall be transferred to the public utilities tax loss restoration fund created in section twenty-seven, article six of this chapter. From the fund, the Auditor shall reimburse the Tax Division and the Division of Motor Vehicles for the actual operating expenses incurred in the performance of its duties required by this article. The reimbursements to the Tax Division and Division of Motor Vehicles from the fund shall not exceed one third of one percent of the annual deposits to the fund per agency. Any moneys remaining in the special operating fund after reimbursement to the Tax Division and the Division of Motor Vehicles shall be used by the Auditor for funding the operation of the interstate commerce disclosure division located in his or her office.

The interstate commerce disclosure division is hereby granted authority and required to share any and all information obtained by the division in the implementation of this article with the State Auditor, Tax Commissioner and the Commissioner of Motor Vehicles to effectuate the collection of taxes and fees under this article. The Commissioner of Motor Vehicles is hereby authorized and required to share any and all information obtained by the Division of Motor Vehicles in the implementation of this article. The Commissioner of Motor Vehicles will supply to the interstate commerce disclosure division the names of, location or locations of and amount or amounts paid by West Virginia owners or operators of interstate motor vehicles registered under the terms of any proportional registration agreement. The Tax Commissioner is hereby authorized and required to share any and all information obtained by the Department of Tax and Revenue. The State Auditor and the interstate commerce disclosure division is hereby authorized and required to share any and all information obtained by the Auditor or the division.

§11-6G-18. Severability.

If any provisions of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or its application and to this end the provisions of this article are declared severable.

§11-6H-1. Short title.

This article shall be known and cited as the Special Aircraft Property Valuation Act.

§11-6H-2. Definitions.

(a) When used in this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined. —

(1) “Aircraft” means a weight-carrying structure for navigation of the air that is supported by the dynamic action of the air against its surfaces and includes, but is not limited to, an airplane or helicopter. For the purposes of this article, the term “aircraft” does not include dirigibles, balloons, kites, rockets, gliders, ornithopters, fan wing vehicles, autogyros and powered lift vehicles other than helicopters.

(2) “Airplane” means a fixed-wing aircraft heavier than air that is driven by a propeller or by jet, turbojet, turbofan, ram jet, pulse jet, scramjet or rocket engine and supported by the dynamic reaction of air against its wings.

(3) “Commercial airline” means an air transportation system used to transport people and tangible personal property for profit and includes carriers that operate with fixed routes and flight schedules as well as charter carriers.

(4) “Helicopter” means an aircraft whose support in the air is derived chiefly from the aerodynamic forces acting on one or more rotors turning about on substantially vertical axes.

(5) “Private carrier” means any firm, partnership, joint venture, joint stock company, any public or private corporation, cooperative, trust, business trust or any other group or combination acting as a unit that is engaged in a primary business other than commercial air transportation that operates an aircraft for the transportation of employees or others for business purposes.

(6) “Salvage value” means the lower of fair market salvage value or five percent of the original cost of the property.

(7) “Special aircraft property” means all aircraft owned or leased by commercial airlines or private carriers, or any parts, materials or items used in the construction, maintenance or repair of aircraft which are, or are intended to become, affixed to or a part of an aircraft or of an aircraft’s engine or of any other component of an aircraft, used as such, by a repair station as defined under Part 145 of Title 14 of the United States Code of Federal Regulations, or any succeeding regulations issued by the Federal Aviation Administration or any successor agency.

§11-6H-3. Valuation of special aircraft property.

Notwithstanding any other provision of this code to the contrary, the value of special aircraft property, for the purpose of ad valorem property taxation under this chapter and under article X of the Constitution of the State of West Virginia, shall be its salvage value.

§11-6H-4. Initial determination by county assessor.

The assessor of the county in which a specific item of property is located shall determine, in writing, whether that specific item of property is special aircraft property subject to valuation in accordance with this article. Upon making a determination that a taxpayer has special aircraft property, the county assessor shall notify the Tax Commissioner of that determination and shall provide information as the Tax Commissioner requires relating to that determination.

§11-6H-5. Protest and appeal.

At any time after the property is returned for taxation, but prior to January 1, of the assessment year, any taxpayer may apply to the county assessor for information regarding the issue of whether any particular item or items of property constitute special aircraft property under this article which is subject to valuation in accordance with this article. If the taxpayer believes that some portion of the taxpayer's property is subject to the provisions of this article, the taxpayer may file objections in writing with the county assessor. The county assessor shall decide the matter by either sustaining the protest and making proper corrections or by stating, in writing if requested, the reasons for the county assessor's refusal. The county assessor may, and if the taxpayer requests, the county assessor shall, before January 1, of the assessment year, certify the question to the Tax Commissioner in a statement sworn to by both parties, or if the parties are unable to agree, in separate sworn statements. The sworn statement or statements shall contain a full description of the property and its uses and any other information the Tax Commissioner requires.

The Tax Commissioner shall, as soon as possible upon receipt of the question, but in no case later than the twenty-eighth day of February of the assessment year, instruct the county assessor as to how the property shall be treated. The instructions issued and forwarded by mail to the county assessor are binding upon the county assessor, but either the county assessor or the taxpayer may apply to the circuit court of the county for review of the question of the applicability of this article to the property in the same fashion as is provided for appeals from the county commission in section twenty-five, article three of this chapter. The Tax Commissioner shall prescribe forms on which the questions under this section shall be certified and the Tax Commissioner has the authority to pursue any inquiry and procure any information which may be necessary for disposition of the matter.

§11-6H-6. Report on economic benefit.

The West Virginia Aeronautics Commission shall provide to the Joint Committee on Government and Finance by March 1, 2012, and on March 1 of each of the two subsequent years, a report detailing the economic benefit of the valuation method specified in this article. The report is to include the number of new jobs created, number of additional aircraft relocated to West Virginia, number of new hangars built and the ad valorem property tax impact.

§11-6H-7. Effective date.

This article shall be effective for assessment years commencing on and after July 1, 2009.

§11-6I-1.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-2.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-3.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-4.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-5.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-6.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-7.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-8.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-9.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-10.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6I-11.

Repealed.

Acts, 2011 Reg. Sess., Ch. 162.

§11-6J-1. Short title.

This article shall be known and cited as the High-Technology Business Property Valuation Act.

§11-6J-2. Definitions.

For the purposes of this article:

(1) "Network" means a group of two or more computer systems linked together;

(2) "Salvage value" means five percent of original cost; and

(3) "Server" means a computer or device on a network that manages network resources.

§11-6J-3. Valuation of certain specialized high-technology property.

Notwithstanding any other provision of this code to the contrary, the value of servers directly used in a high-technology business or in an Internet advertising business, as defined in section nine-h, article fifteen of this chapter, and the value of tangible personal property directly used in a high-technology business or in an Internet advertising business, as defined in said section, for the purpose of ad valorem property taxation under this chapter and under article X of the Constitution of this state, shall be its salvage value.

§11-6J-4. Initial determination by county assessor.

The assessor of the county in which a server or specific item of tangible personal property is located shall determine, in writing, whether that server or specific item of tangible personal property is directly used in a high-technology business or an Internet advertising business subject to valuation in accordance with this article. Upon making a determination that a taxpayer has a server or tangible personal property directly used in a high-technology business or an Internet advertising business, the county assessor shall notify the Tax Commissioner of that determination and shall provide information to the Tax Commissioner as he or she requires relating to that determination.

§11-6J-5. Protest and appeal.

At any time after the property is returned for taxation, but prior to January 1 of the assessment year, any taxpayer may apply to the county assessor for information regarding the issue of whether any particular item or items of property constitute property directly used in a high-technology business or an Internet advertising business under this article which should be subject to valuation in accordance with this article. If the taxpayer believes that some portion of the taxpayer's property is subject to this article, the taxpayer shall file objections in writing with the county assessor. The county assessor shall decide the matter by either sustaining the protest and making proper corrections, or by stating, in writing if requested, the reasons for the county assessor's refusal. The county assessor may, and if the taxpayer requests, the county assessor shall, before January 1 of the assessment year, certify the question to the Tax Commissioner in a statement sworn to by both parties, or if the parties are unable to agree, in separate sworn statements. The sworn statement or statements shall contain a full description of the property and any other information which the Tax Commissioner may require.

The Tax Commissioner shall, as soon as possible on receipt of the question, but in no case later than February 28 of the assessment year, instruct the county assessor as to how the property shall be treated. The instructions issued and forwarded by mail to the county assessor are binding upon the county assessor, but either the county assessor or the taxpayer may apply to the circuit court of the county for review of the question of the applicability of this article to the property in the same fashion as is provided for appeals from the county commission in section twenty-five, article three of this chapter. The Tax Commissioner shall prescribe forms on which the questions under this section shall be certified and the Tax Commissioner has the authority to pursue any inquiry and procure any information necessary for disposition of the matter.

§11-6J-6. Effective date.

This article shall be effective on and after July 1, 2009.

§11-6J-7. Report on economic benefit.

The West Virginia Development Office shall provide to the Joint Committee on Government and Finance by March 1, 2013, and on March 1 of each of the two subsequent years, a report detailing the economic benefit of the valuation method specified in this article. The report shall include the number of new jobs created due to the provisions of this article and the ad valorem property tax impact.

§11-6K-1. Time and basis of assessments; true and actual value; and returns of property to Tax Commissioner.

(a) All industrial property and natural resources property shall be assessed annually as of the assessment date at sixty percent of its true and actual value.

(b) If required by the Tax Commissioner, all owners or operators of natural resources property, except oil-producing property, natural gas-producing property and managed timberland, shall, on or before May 1 preceding the July 1 assessment date, make a return to the Tax Commissioner and, if requested in writing by the assessor of the county where situated, to the county assessor, at a time and in the form specified by the Tax Commissioner, of all applicable natural resources property owned by them. Tax returns required to be filed pursuant to this section may be filed electronically in the discretion of the Tax Commissioner. The Tax Commissioner may require the filing of all information which would be useful in valuing the property covered by the returns. Upon written application by the taxpayer filed prior to the due date of any return required to be filed by this section, the Tax Commissioner may for reasonable cause shown grant an extension of no more than one month in the due date of any return.

(c) If required by the Tax Commissioner, all owners or operators of industrial property, oil-producing property and natural gas-producing property, shall, on or before August 1 of the assessment year, make a return to the Tax Commissioner and, if requested in writing by the assessor of the county where situated, to the county assessor, at a time and in the form specified by the Tax Commissioner, of all industrial property, oil-producing property and natural gas-producing property, owned by them. Tax returns required to be filed pursuant to this section may be filed electronically in the discretion of the Tax Commissioner. The Tax Commissioner may require the filing of all information which would be useful in valuing the property covered by the returns. Upon written application by the taxpayer filed prior to the due date of any return required to be filed by this section, the Tax Commissioner may for reasonable cause shown grant an extension of no more than one month in the due date of any return.

§11-6K-2. Definitions.

As used in this article:

(1) "Active coal mining property" means a mineable bed of coal on a property or portion of a property involved in a permitted mining operation. Each and every bed of coal being mined in a permitted mining operation is a separate active mining property.

(2) "Industrial property" means the real and personal property integrated as a functioning unit intended for the assembling, processing and manufacturing of finished or partially finished products.

(3) "Managed timberland" means surface real property, except farm woodlots, of not less than ten contiguous acres which is devoted primarily to forest use and which, in consideration of its size, has sufficient numbers of commercially valuable species of trees to constitute at least forty percent normal stocking of forest trees which are well distributed over the growing site, and that is certified as managed timberland by the Division of Forestry.

(4) "Natural gas-producing property" means the property from which natural gas has been produced or extracted at any time during the calendar year preceding the assessment date. Natural gas producing-property includes the property interest or interests underlying an area of up to one hundred twenty-five acres of surface per well for property with active wells on the parcel.

(5) "Natural resources property" means any of the following: Active coal mining property, reserve coal property, natural gas-producing property, oil-producing property, managed timberland or other natural resources property.

(6) "Oil-producing property" means property from which oil has been produced or extracted at any time during the calendar year preceding the assessment date. Oil-producing property includes the interest or interests underlying an area of up to forty acres of surface per well with one or more active wells on the parcel.

(7) "Operator" means an individual, limited liability company, partnership, corporation, joint venture or other enterprise which proposes to or does locate, drill, produce, manage or abandon any oil and/or natural gas well or which is engaged in actively obtaining or preparing to obtain coal and/or its by-products from the earth's crust on an active coal mining property.

(8) "Reserve coal property" means any property for which coal rights are part of the owned estate and which is not part of an active coal mining property.

§11-6K-3. Form and manner of making return; failure to timely make return; penalties.

(a) All returns required to be made to the Tax Commissioner under this article shall be made in conformity with any reasonable requirements of the Tax Commissioner of which the person making the return shall have had notice, and shall be made upon forms prescribed by the Tax Commissioner who is invested with full power and authority to prescribe the forms required from any owner, operator or producer that may be of use to the Tax Commissioner in determining the true and actual value of the properties of the owners, operators or producers.

(b) All returns shall be signed and sworn to by the owner, operator or producer if a natural person, or, if the owner, operator or producer shall be a limited liability company, corporation, partnership, joint venture or other enterprise, shall be signed and sworn to by its president, vice president, secretary or other individual authorized to act on behalf of the taxpayer.

(c) If any owner, operator or producer fails to make a return within the time required by section one of this article, it shall be the duty of the Tax Commissioner to take steps as necessary to compel compliance and to enforce any and all penalties imposed by law for failure to do so.

(d) Any owner, operator or producer, whether a natural person, limited liability company, corporation, partnership, joint venture or other enterprise, willfully failing to make a return within thirty days from the day it is herein required shall be guilty of a misdemeanor and, upon conviction thereof, fined $100 for each month the failure continues. In addition, any penalties provided in this chapter or elsewhere in this code relating to failure to list any property or to file any return or report for ad valorem taxation purposes may be applied to any owner of property required to make a return pursuant to this section.

§11-6K-4. Review of returns; procuring information for tentative appraisals; tentative appraisals by Tax Commissioner; notification to taxpayers.

(a) All returns delivered to the Tax Commissioner shall be examined by him or her, and if found insufficient in form, defective, imperfect or not in compliance with law, he or she shall compel the person delivering the return to make it in proper and sufficient form in all respects as required by law.

(b) If any owner, operator or producer fails to make a required return, the Tax Commissioner shall proceed to obtain the facts and information required to be furnished by the returns.

(c) For the purposes of ascertaining the correctness of any return filed pursuant to this article or of valuing the property of any industrial taxpayer or natural resources property owner or operator, the Tax Commissioner may exercise all of the powers and authority granted to him or her by sections five-a, five-b and five-c, article ten of this chapter.

(d) Using information provided on the returns and all other pertinent evidence, information and data the Tax Commissioner has been able to procure, the Tax Commissioner shall annually value and make tentative appraisals of all industrial property and natural resources property as provided in section ten, article one-c of this chapter.

(e) (1) On or before October 15 of the assessment year, the Tax Commissioner shall complete the preparation of tentative appraisals of all industrial property and natural resources property and shall notify the affected owner or operator of the amount of the tentative appraisals: Provided, That in the case of oil property, natural gas property and managed timberland, the Tax Commissioner shall complete the preparation of tentative appraisals and notify the affected owner or operator by December 1 of the assessment year, and: Provided, however, That no notification shall be required where the total increase in the aggregate amount of the tentative appraisals to the affected owner or operator does not exceed $1,000 and the total tentative appraisals did not increase by more than ten percent from the prior year's appraisals. Notification may, at the reasonable discretion of the Tax Commissioner, be:

(A) By written notice deposited in the United States mail, addressed to the owner or operator at the principal office or place of business of the owner or operator;

(B) By electronic notification; or

(C) By any other means designed to communicate the tentative appraisal information to the owner or operator in a timely and efficient manner and in a convenient useable form.

(2) Any notice required to be provided under this section to an owner or operator shall also be provided by the Tax Commissioner to the assessor of the county in which the property is located. The Tax Commissioner shall retain in his or her office true copies of tentative appraisals and of the underlying work sheets used to compute the tentative appraisals, all of which shall be available for inspection by any owner or operator or his or her duly authorized representative.

§11-6K-5. Informal petition to Tax Commissioner for review of tentative appraisals.

(a) A taxpayer who is of the opinion that the tentative appraisal of its industrial property or natural resources property, except oil property, natural gas property and managed timberland, does not reflect the true and actual value of the property or is otherwise improperly valued may, after receiving its tentative appraisal and on or before November 15 of the assessment year, informally petition the Tax Commissioner requesting a review of the tentative appraisal. Likewise, an assessor who is of the opinion that the tentative appraisal of any industrial property or natural resources property, except oil property, natural gas property and managed timberland, located in the county does not reflect the true and actual value of the property or is otherwise improperly valued may, after receiving the tentative appraisal and on or before November 15 of the assessment year, informally petition the Tax Commissioner requesting a review of the tentative appraisal. The Tax Commissioner may require the petition be made on a written form prescribed by the Tax Commissioner. At the time a petition is filed by a taxpayer with the Tax Commissioner, the petitioner shall provide a copy of the petition to the assessor of the county in which the property is located. At the time a petition is filed by an assessor with the Tax Commissioner, the petitioner shall provide a copy of the petition to the taxpayer involved.

(b) At the petitioner's request, the Tax Commissioner or his or her representative shall meet with the petitioner or the petitioner's representative to discuss the petition at a time and place designated at least five working days in advance by the Tax Commissioner after the petition is filed. If the petitioner is unable to appear and meet with the Tax Commissioner at the time and place set by the Tax Commissioner, the petitioner may submit written evidence to support the petition if it is submitted before the date of the meeting.

(c) The Tax Commissioner shall consider and rule on each informal petition filed under this section on or before January 15 of the tax year. If the Tax Commissioner agrees with the petition he or she shall modify the tentative appraisal accordingly. The Tax Commissioner shall then notify the petitioner and assessor of the county in which the property is located in writing of his or her decision and shall include supporting data that the assessor might need to evaluate the appraisal.

§11-6K-6. Final appraisal of industrial property and natural resources property by Tax Commissioner; appraisals sent to assessors; appeals of Tax Commissioner's appraisals.

(a) The Tax Commissioner shall finalize the tentative appraisals made pursuant to section four of this article and make his or her final appraisals of industrial property and natural resources property on or before December 15 of the assessment year.

(b) On or before December 15 of the assessment year, the Tax Commissioner shall forward each industrial property and natural resources property appraisal to the county assessor of the county in which that property is located. In so doing, The Tax Commissioner shall identify those appraisals that may still be under review under section five of this article. The assessor shall then multiply each appraisal by sixty percent and include the resulting assessed value in the land book or the personal property book, as appropriate for each tax year. The Tax Commissioner shall supply supporting data that the assessor might need to evaluate the appraisal.

(c) Any taxpayer claiming to be aggrieved by any assessment made pursuant to this article may appeal the assessment as provided under the provisions of article three of this chapter: Provided, That if the assessment exceeds sixty percent of the final appraisal by the Tax Commissioner, the taxpayer may notify the Tax Commissioner in writing of this error, whereupon he or she shall, if the error is confirmed, instruct the assessor in writing to lower the assessment to sixty percent of the final appraisal. The assessor shall, upon receipt of instruction from the Tax Commissioner, lower the assessment as required.

§11-6K-7. Effective date.

The provisions of this article enacted in the year 2010 shall be effective for the assessment years and the tax years beginning on or after July 1, 2011.

§11-6K-8. Rules.

The Tax Commissioner is hereby authorized to promulgate emergency rules and other rules in accordance with the provisions of article three, chapter twenty nine-a of this code as necessary or convenient for administration and interpretation of this article.

§11-7-1. Collection of capitation taxes for tax year 1970; effective date; legislative intent.

It is hereby declared to be the intent of the Legislature that the provisions of this act whereby the former provisions for collection of capitation taxes are repealed, shall become effective July 1, 1971, but that such effective date shall in no way impair the right of the sheriff or any other public official in carrying out the law as existing prior to the passage of this act with respect to capitation taxes due and collectible for the tax year 1970 or any other prior year, the collection of which was formerly provided for under the provisions of this section.

§11-8-1. Declarations.

Whereas, Two former acts of the present Legislature relating to the subject matter and general object of this article have been held by the Supreme Court of Appeals of this state to be unconstitutional for varying reasons, which holdings give rise to the question and doubt as to whether the Tax Limitation Amendment, according to the majority interpretation of its intent and meaning, and in consonance with a like, but differently constituted, majority interpretation of other Constitutional provisions, may be made workable literally and, at the same time, permit provisions to be made for the necessary requirements of governmental expenses; and

Whereas, This Legislature cannot entertain the belief that the voters of this state who, with such practical unanimity, adopted the Tax Limitation Amendment, had in mind that any possible effect or consequence thereof would be to destroy or seriously impair Constitutional government in the state or any political subdivision thereof, but rather that one of its objects and purposes was to enjoin and compel a curtailment and reduction of governmental expenses, and to hold them within reasonable bounds consistent with the economical and efficient administration thereof; and

Whereas, It is the express purpose and object of the provisions hereinafter contained to fully conform with the spirit of said amendment and to provide ample safeguards to insure the strictest economy in the matter of governmental expenditures, to the end that proper agencies of government may not be compelled to abdicate or cease to function, but that in so functioning they shall not entail upon the public any expense which is not absolutely necessary; therefore, the Legislature of West Virginia doth find and declare:

That the provisions of this article hereinafter contained are as it verily believes fully within the spirit of said amendment and the several judicial interpretations thereof, and that by means thereof said amendment may be found to be workable in its practical application.

§11-8-2. Legislative findings.

The Legislature, having carefully analyzed the fiscal affairs of the state and its political subdivisions with particular reference to the reduction of the outstanding bonded debt of political subdivisions incurred prior to the adoption of the Tax Limitation Amendment, finds:

(1) That the total outstanding bonded indebtedness of subdivisions of the state incurred prior to the adoption of the Tax Limitation Amendment has been reduced since the year 1939-1940, by approximately sixty-five percent and the annual requirements of service upon bonded debt have been reduced by completed amortizations from slightly less than $6,500,000 in that year, to approximately $2,300,000 for the fiscal year beginning on July 1, 1949, according to findings certified to the Legislature by the state sinking fund commission.

(2) That it is therefore now possible to adjust the allocation of levies to redistribute so much of the rates previously allocated for debts incurred prior to the adoption of the Tax Limitation Amendment as represent debts completely liquidated, so as to meet the increased levying requirements of county courts, boards of education, and municipalities, and that such adjustment is in keeping with sound finance, the preservation of local fiscal responsibility for local services, and the intention of the Tax Limitation Amendment.

§11-8-3. Purposes.

In order that the revenue to be derived from taxes to be assessed upon real and personal and public utility property throughout the state may be apportioned among the levying units of the state in such manner that the said apportionment shall not exceed the maximum levies that may be assessed upon each respective class of property as defined by the Tax Limitation Amendment, and

In order, further, that the taxes to be assessed shall be levied and collected with uniformity coextensive with the territory of the taxing unit within which such taxes are to be levied and collected, without interference by one taxing unit with the right of another such unit to levy and collect taxes for its purposes and within its territorial extent, and

In order, further, that the taxing units throughout the state may be furnished with the means of providing (1) the sinking fund and interest requirements of their now existing indebtedness, and (2) the requirements of their respective current operating expenses, this article is hereby enacted.

The purpose of this article is to provide the maximum rates for the levies which may be laid by the several taxing units in the state within the limitations of the Tax Limitation Amendment and to provide for the application of the taxes derived therefrom first to the payment of legal contractual indebtedness and then to the maintenance of indispensable governmental functions as herein provided.

§11-8-4. Definition of taxing units.

The taxing units of the state for the purposes of this article are declared to be (1) the state, (2) the county, for all county purposes including indebtedness other than school indebtedness, (3) present school districts for current school purposes, (4) school districts existing prior to May 22, 1933, for school debt service purposes, (5) magisterial and other road districts for road and other debt service purposes other than county road debts, (6) other specially created taxing districts for indebtedness existing at the time of the adoption of the Tax Limitation Amendment, (7) municipalities for municipal purposes including municipal debt service purposes.

§11-8-5. Classification of property for levy purposes.

For the purpose of levies, property shall be classified as follows:

Class I. All tangible personal property employed exclusively in agriculture, including horticulture and grazing;

All products of agriculture (including livestock) while owned by the producer;

All notes, bonds, bills and accounts receivable, stocks and any other intangible personal property;

Class II. All property owned, used and occupied by the owner exclusively for residential purposes;

All farms, including land used for horticulture and grazing, occupied and cultivated by their owners or bona fide tenants;

Class III. All real and personal property situated outside of municipalities, exclusive of Classes I and II;

Class IV. All real and personal property situated inside of municipalities, exclusive of Classes I and II.

§11-8-6. Aggregate of taxes on different classifications; taxing units authorized to lay levies.

The aggregate of taxes assessed in any one year by all levying bodies, except as provided by section twenty-three of this article, shall not exceed 50¢ on each one hundred dollars' assessed valuation on Class I property; $1 on Class II property; $1.50 on Class III property; and $2 on Class IV property.

The fiscal bodies of the taxing units of the state are hereby authorized to lay levies within the limitations of the "Tax Limitation Amendment" for the purposes and subject to the several maximums specified by sections six-a to seven, inclusive, of this article.

§11-8-6a. Levies on each classification by Board of Public Works.

The State Board of Public Works shall levy as provided by section eight as follows:

On Class I property, twenty-five hundredths of 1¢; on Class II property, five- tenths of 1¢; and on Classes III and IV property, 1¢.

§11-8-6b. Maximum levies on each classification by county courts; order of levies.

County courts are hereby authorized to lay not in excess of the following maximum levies, for the purposes specified and in the following order:

(1) With respect to the county as a whole for the payment of (a) interest and sinking fund requirements for bonded indebtedness incurred prior to the adoption of the Tax Limitation Amendment; and (to the extent not so required), (b) other legally incurred contractual indebtedness, not bonded, if any, incurred prior to the adoption of the Tax Limitation Amendment, of the county as follows: On Class I property, twenty-five one hundredths of 1¢; on Class II property, one half of 1¢; and on Classes III and IV property, 1¢.

(2) With respect to a magisterial or special taxing district for which the county court is required to lay the levy, for the payment of (a) interest and sinking fund requirements for bonded indebtedness, incurred prior to the adoption of the Tax Limitation Amendment; and (to the extent not so required), (b) other legally incurred contractual indebtedness not bonded, if any, incurred prior to the adoption of the Tax Limitation Amendment, as follows: On Class I property, two and fifteen one hundredths cents; on Class II property, four and three tenths cents; and on Classes III and IV property, eight and six tenths cents.

(3) For general county current expense as follows: On Class I property, eleven and nine tenths cents; on Class II property, twenty-three and eight tenths cents; and on Classes III and IV property, forty-seven and six tenths cents. But in a county where the total assessed valuation of all classes of property is less than $6 million, the county court may, with the prior written approval of the Tax Commissioner, exceed the rates of levy for general county current expense by not more than twenty-five percent of the rates specified: Provided, however, That if the rates of levy under paragraph (3) of this section are not required in whole or in part for the purpose for which they are allocated, the county court may, with the prior written approval of the State Tax Commissioner, surrender to the county board of education such unused parts of the authorized rates of levy as provided herein.

§11-8-6c. Maximum levies on each classification by county boards of education; order of levy; exceeding levy for school bond issues.

County boards of education are hereby authorized to lay not in excess of the following maximum levies, for the purposes specified and in the following order:

(1) With respect to a magisterial, independent or other school district existing in a county prior to May 22, 1933, or any special taxing district for which the board of Education is required to lay the levy, for the payment of (a) interest and sinking fund requirements for bonded indebtedness incurred prior to the adoption of the Tax Limitation Amendment; and (to the extent not so required), (b) other legally incurred contractual indebtedness not bonded, if any, incurred prior to the adoption of the Tax Limitation Amendment as follows: On Class I property, thirty-five one hundredths of 1¢; on Class II property, seven tenths of 1¢; and on Classes III and IV property, one and four tenths cents.

(2) For either or both of (a) the permanent improvement fund, and (b) the payment of interest and sinking fund requirements for bonded indebtedness incurred subsequent to the adoption of the Tax Limitation Amendment, as follows: On Class I property, one and five tenths cents; on Class II property, 3¢; and on Classes III and IV property, 6¢.

(3) For the general current expenses of schools as follows: On Class I property, twenty-one and one tenth cents; on Class II property, forty-two and two tenths cents; and on Classes III and IV property, eighty-four and four tenths cents. But if the Tax Commissioner has approved the levy of an additional amount for the general current expenses of the county as authorized by section six-b, subsection three, the amount of the levy authorized for boards of education by this subsection shall be reduced by the Tax Commissioner to that extent.

If the rates of levy under paragraph (2) above are not required in whole or in part for the purposes for which they are allocated by this section, the county board of education may, with the prior written approval of the state board of school finance, created by section three, article nine-b, chapter eighteen of the code, as amended, lay such rates of levy or portion thereof not so required, for the general current expenses of schools: Provided, however, That if the rates of levy under paragraph (3) of this section are not sufficient for the purposes for which they are allocated, the county board of education may, with the prior written approval of the State Tax Commissioner, lay such additional rates of levy, or portion thereof, as are surrendered by the county court under paragraph (3), section six-b of this article: Provided further, That a county board of education shall be required to levy outside the levy rates hereinabove provided sufficient to pay the principal and interest requirements on bonds now or hereafter issued by any school district not exceeding in the aggregate five per centum of the assessed value of all taxable property in the county school district, to be ascertained by the last assessment for state and county taxes, previous to the incurring of such indebtedness, in the manner provided by the "Better Schools Amendment," as ratified.

§11-8-6d. Maximum levies on each classification by municipalities; order of levy.

The governing body of a municipality is hereby authorized to lay not in excess of the following maximum levies, for the purposes specified, and in the following order:

(1) For the payment of (a) principal and interest upon bonded indebtedness incurred prior to the adoption of the Tax Limitation Amendment; and to the extent not so required, (b) other legally incurred contractual indebtedness, not bonded, if any, incurred prior to the adoption of the Tax Limitation Amendment, as follows: On Class I property, one and five tenths cents; on Class II property, 3¢; and on Class IV property, 6¢.

(2) For general current expense purposes, as follows: On Class I property, 11¢; on Class II property, 22¢; and on Class IV property, 44¢.

§11-8-6e. Effect on regular levy rate when appraisal results in tax increase; public hearings.

(a) Notwithstanding any other provision of law, where any annual appraisal, triennial appraisal or general valuation of property would produce an assessment that would cause an increase of one percent or more in the total projected property tax revenues that would be realized were the then current regular levy rates by the county commission and the municipalities to be imposed, the rate of levy shall be reduced proportionately as between the county commission and the municipalities and for all classes of property for the forthcoming tax year so as to cause such rate of levy to produce no more than one hundred one percent of the previous year's projected property tax revenues from extending the county commission and municipality levy rates, unless there has been compliance with subsection (c) of this section.

An additional appraisal or valuation due to new construction or improvements to existing real property, including beginning recovery of natural resources, and newly acquired personal property shall not be an annual appraisal or general valuation within the meaning of this section, nor shall the assessed value of such improvements be included in calculating the new tax levy for purposes of this section. Special levies shall not be included in the reduced levy calculation set forth in subsection (b) of this section.

(b) The reduced rates of levy shall be calculated in the following manner:

(1) The total assessed value of each class of property as it is defined by section five, article eight of this chapter for the assessment period just concluded shall be reduced by deducting the total assessed value of newly created properties not assessed in the previous year's tax book for each class of property;

(2) The resulting net assessed value of Class I property shall be multiplied by .01; the value of Class II by .02; and the values of Class III and IV, each by .04;

(3) Total the current year's property tax revenue resulting from regular levies for each county commission and municipality and multiply the resulting sum by one hundred one percent: Provided, That the one hundred one percent figure shall be increased by the amount the county's or municipality's increased levy provided for in subsection (b), section eight, article one-c of this chapter;

(4) Divide the total regular levy tax revenues, thus increased in subdivision (3) of this subsection, by the total weighted net assessed value as calculated in subdivision (2) of this subsection and multiply the resulting product by one hundred; the resulting number is the Class I regular levy rate, stated as cents-per-one hundred dollars of assessed value;

(5) The Class II rate is two times the Class I rate; Classes III and IV, four times the Class I rate as calculated in the preceding subdivision.

(c) The governing body of a county or municipality may, after conducting a public hearing, which may be held at the same time and place as the annual budget hearing, increase the rate above the reduced rate required in this section if any such increase is deemed to be necessary by such governing body: Provided, That in no event shall the governing body of a county or municipality increase the rate above the reduced rate required by subsection (b) of this section for any single year in a manner which would cause total property tax revenues accruing to the governing body of the county or municipality, excepting additional revenue attributable to assessed valuations of newly created properties not assessed in the previous year's tax book for each class of property, to exceed by more than ten percent those property tax revenues received by the governing body of the county or municipality for the next preceding year: Provided, however, That this provision shall not restrict the ability of a county or municipality to enact excess levies as authorized under existing statutory or constitutional provisions: Provided further, That this provision does not restrict the ability of a county or municipality to issue bonds and enact sufficient levies to pay for such bonds pursuant to article one, chapter thirteen of this code when such issuance has been approved by an election administered pursuant to that article.

Notice of the public hearing and the meeting in which the levy rate shall be on the agenda shall be given at least seven days before the date for each public hearing by the publication of a notice in at least one newspaper of general circulation in such county or municipality: Provided, That a Class IV town or village as defined in section two, article one, chapter eight of this code, in lieu of the publication notice required by this subsection, may post no less than four notices of each public hearing, which posted notices shall contain the information required by the publication notice and which shall be in available, visible locations including the town hall. The notice shall be at least the size of one-eighth page of a standard size newspaper or one-fourth page of a tabloid-size newspaper and the headline in the advertisement shall be in a type no smaller than twenty-four point. The publication notice shall be placed outside that portion, if any, of the newspaper reserved for legal notices and classified advertisements and shall also be published as a Class II-O legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code. The publication area is the county. The notice shall be in the following form and contain the following information, in addition to such other information as the local governing body may elect to include:

NOTICE OF PROPOSED TAX INCREASE.

The (name of the county or municipality) proposes to increase property tax levies.

1. Appraisal/Assessment Increase: Total assessed value of property, excluding additional assessments due to new or improved property, exceeds last year's total assessed value of property by ..... percent.

2. Lowered Rate Necessary to Offset Increased Assessment: The tax rate which would levy the same amount of property tax as last year, when multiplied by the new total assessed value of property with the exclusions mentioned above, would be $..... per $100 of assessed value for Class I property, $..... per $100 of assessed value for Class II property, $..... per $100 of assessed value for Class III and $..... per $100 of assessed value for Class IV property. These rates will be known as the "lowered tax rates".

3. Effective Rate Increase: The (name of the county or municipality) proposes to adopt a tax rate of $..... per $100 of assessed value for Class I property, $..... per $100 of assessed value for Class II property, $..... per $100 of assessed value for Class III property and $..... per $100 of assessed value for Class IV property. The difference between the lowered tax rates and the proposed rates would be $..... per $100, or ..... percent for Class I; $..... per $100, or ..... percent for Class II; $..... per $100, or ..... percent for Class III and $..... per $100, or ..... percent for Class IV. These differences will be known as the "effective tax rate increases".

Individual property taxes may, however, increase at a percentage greater than or less than the above percentage.

4. Revenue produced last year: $.....

5. Revenue projected under the effective rate increases: $.....

6. Revenue projected from new property or improvements: $.....

7. General areas in which new revenue is to be allocated: A public hearing on the increases will be held on (date and time) at (meeting place). A decision regarding the rate increase will be made on (date and time) at (meeting place).

(d) All hearings are open to the public. The governing body shall permit persons desiring to be heard an opportunity to present oral testimony within such reasonable time limits as are determined by the governing body.

(e) This section shall be effective as to any regular levy rate imposed by the county commission or a municipality for taxes due and payable on or after July 1, 1991. If any provision of this section is held invalid, the invalidity does not affect other provisions or applications of this section which can be given effect without the invalid provision or its application and to this end the provisions of this section are declared to be severable.

§11-8-6f. Regular school board levy rate; creation and implementation of Growth County School Facilities Act; creation of Growth County School Facilities Act Fund.

(a) Notwithstanding any other provision of law, where any annual appraisal, triennial appraisal or general valuation of property would produce a statewide aggregate assessment that would cause an increase of two percent or more in the total property tax revenues that would be realized were the then current regular levy rates of the county boards of education to be imposed, the rate of levy for county boards of education shall be reduced uniformly statewide and proportionately for all classes of property for the forthcoming tax year so as to cause the rate of levy to produce no more than one hundred two percent of the previous year's projected statewide aggregate property tax revenues from extending the county board of education levy rate, unless subsection (b) of this section is complied with. The reduced rates of levy shall be calculated in the following manner: (1) The total assessed value of each class of property as it is defined by section five of this article for the assessment period just concluded shall be reduced by deducting the total assessed value of newly created properties not assessed in the previous year's tax book for each class of property; (2) the resulting net assessed value of Class I property shall be multiplied by .01; the value of Class II by .02; and the values of Classes III and IV, each by .04; (3) total the current year's property tax revenue resulting from regular levies for the boards of education throughout this state and multiply the resulting sum by one hundred two percent: Provided, That the one hundred two percent figure shall be increased by the amount the boards of education's increased levy provided for in subsection (b), section eight, article one-c of this chapter; (4) divide the total regular levy tax revenues, thus increased in subdivision (3) of this subsection, by the total weighted net assessed value as calculated in subdivision (2) of this subsection and multiply the resulting product by one hundred; the resulting number is the Class I regular levy rate, stated as cents-per-one hundred dollars of assessed value; and (5) the Class II rate is two times the Class I rate; Classes III and IV, four times the Class I rate as calculated in the preceding subdivision.

An additional appraisal or valuation due to new construction or improvements, including beginning recovery of natural resources, to existing real property or newly acquired personal property shall not be an annual appraisal or general valuation within the meaning of this section, nor shall the assessed value of the improvements be included in calculating the new tax levy for purposes of this section. Special levies shall not be included in any calculations under this section.

(b) After conducting a public hearing, the Legislature may, by act, increase the rate above the reduced rate required in subsection (a) of this section if an increase is determined to be necessary.

(c) The State Tax Commissioner shall report to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Education Accountability by March 1 of each year on the progress of assessors in each county in assessing properties at the Constitutionally required sixty percent of market value and the effects of increasing the limit on the increase in total property tax revenues set forth in this section to two percent.

(d) Growth County School Facilities Act. -– Legislative findings. -–

The Legislature finds and declares that there has been, overall, a statewide decline in enrollment in the public schools of this state; due to this decline, most public schools have ample space for students, teachers and administrators; however, some counties of this state have experienced significant increases in enrollment due to significant growth in those counties; that those counties experiencing significant increases do not have adequate facilities to accommodate students, teachers and administrators. Therefore, the Legislature finds that county boards of education in those high-growth counties should have the authority to designate revenues generated from the application of the regular school board levy due to new construction or improvements placed in a Growth County School Facilities Act Fund be used for school facilities in those counties to promote the best interests of this state's students.

(1) For the purposes of this subsection, "growth county" means any county that has experienced an increase in second month net enrollment of fifty or more during any three of the last five years, as determined by the state Department of Education.

(2) The provisions of this subsection shall only apply to any growth county, as defined in subdivision (1) of this subsection, that, by resolution of its county board of education, chooses to use the provisions of this subsection.

(3) For any growth county, as defined in subdivision (1) of this subsection, that adopts a resolution choosing to use the provisions of this subsection, pursuant to subdivision (2) of this subsection, assessed values resulting from additional appraisal or valuation due to new construction or improvements to existing real property shall be designated as new property values and identified by the county assessor. The statewide regular school board levy rate as established by the Legislature shall be applied to the assessed value designated as new property values and the resulting property tax revenues collected from application of the regular school board levy rate shall be placed in a separate account designated as the Growth County School Facilities Act Fund. Revenues deposited in the Growth County School Facilities Act Fund shall be appropriated by the county board of education for construction, maintenance or repair of school facilities. Revenues in the fund may be carried over for an indefinite length of time and may be used as matching funds for the purpose of obtaining funds from the School Building Authority or for the payment of bonded indebtedness incurred for school facilities. For any growth county choosing to use the provisions of this subsection, estimated school board revenues generated from application of the regular school board levy rate to new property values are not to be considered as local funds for purposes of the computation of local share under the provisions of section eleven, article nine-a, chapter eighteen of this code.

(e) This section, as amended during the legislative session in the year 2004, shall be effective as to any regular levy rate imposed for the county boards of education for taxes due and payable on or after July 1, 2004. If any provision of this section is held invalid, the invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or its application and to this end the provisions of this section are declared to be severable.

§11-8-6g. Effect on special levy rates when appraisal results in tax revenue increase; public hearings.

(a) Until July 1, 1995, as to any special levy in effect prior to that date, and notwithstanding any other provision of law to the contrary, where any annual appraisal, triennial appraisal or general valuation of property would produce an assessment that would cause an increase of four percent or more in the total projected property tax revenues that would be realized were the special levy rates then in effect by the county commission, the municipalities or the county board of education to be imposed, the local levying body shall comply with subsection (b) of this section and may reduce the rate of special levy in accordance with the provisions of subsection (d) of this section until July 1, 1995. After July 1, 1995, each levying body shall adopt only the levy rate which is specified and approved in the levy ballot: Provided, That if the special levy ballot provision authorizes the levying body to reduce the rate of special levy, such rate may be reduced in accordance with the special levy ballot provision.

An additional appraisal or valuation due to new construction or improvements to existing real property, including beginning recovery of natural resources, and newly acquired personal property shall not be an annual appraisal or general valuation within the meaning of this section, nor shall the assessed value of such improvements be included in calculating the new tax levy for purposes of this section.

(b) Any local levying body projected to realize such increase greater than four percent shall conduct a public hearing no later than March 20 in the years 1994 and 1995, which hearing may be held at the same time and place as the annual budget hearing. Notice of the public hearing and the meeting in which the levy rate shall be on the agenda shall be given at least seven days before the date for each public hearing by the publication of a notice in at least one newspaper of general circulation in such county or municipality: Provided, That a Class IV town or village as defined in section two, article one, chapter eight of this code, in lieu of the publication notice required by this subsection, may post no less than four notices of each public hearing, which posted notices shall contain the information required by the publication notice and which shall be in available, visible locations including the town hall. The notice shall be at least the size of one-eighth page of a standard size newspaper or one-fourth page of a tabloid size newspaper, and the headline in the advertisement shall be in a type no smaller than twenty-four point. The publication notice shall be placed outside that portion, if any, of the newspaper reserved for legal notices and classified advertisements and shall also be published as a Class II-O legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code. The publication area is the county. The notice shall be in the following form and contain the following information, in addition to such other information as the local governing body may elect to include:

HEARING REGARDING SPECIAL LEVY RATES

The (name of the local levying body) hereby gives notice that the special levy rate imposed by the (local levying body) causes an increase in property tax revenues due to increased valuations.

1. Appraisal/Assessment Increase: Total assessed value of property, excluding additional assessments due to new or improved property, exceeds last year's total assessed value of property by ............ percent.

2. Current Year's Revenue Produced Under Special Levy:

3. Projected Revenue Under Special Levy for Next Tax Year:

4. Revenue Projected from New Property or Improvements: $.........

5. General areas in which new revenue is to be allocated:

A public hearing on the issue of special levy rates will be held on (date and time) at (meeting place). A decision regarding the special levy rate will be made on (date and time) at (meeting place).

Notwithstanding any other provision of this subsection to the contrary, for the year 1993 only, any local levying body required to conduct a public hearing due to a four-percent increase as set forth in this subsection projected for the next fiscal year shall hold the public hearing prior to May 6, shall only be required to publish a Class I legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code, and need not provide such notice at least seven days before the date of the hearing as required in this subsection: Provided, That a Class IV town or village may provide notice as otherwise set forth in this subsection: Provided, however, That any public hearings held pursuant to the provisions of this section in the year 1993 prior to the effective date of this section are hereby ratified and confirmed as having full force and effect: Provided further, That no county commission or municipality shall be required to hold a public hearing as required by this section during the year 1993 for the fiscal year 1994.

(c) All hearings are open to the public, and the local levying body shall permit persons desiring to be heard an opportunity to present oral testimony within such reasonable time limits as are determined by the governing body. A decision regarding the special levy rate shall be made within ten days of the hearing.

(d) For the fiscal years beginning on July 1, 1993, 1994 and 1995, as to any special levy in effect prior to July 1, 1995, a local levying body may reduce the rate of the special levy for all classes of property for the forthcoming tax year so as to cause such rate of special levy to produce no more than one hundred four percent of the previous year's projected property tax revenues from extending such special levy rates or such lesser reduction the local levying body considers adequate: Provided, That no levying body shall reduce any special levy if such levy rate has been covenanted or otherwise dedicated and is necessary to the payment of bonds or other obligations existing as of the effective date of this section: Provided, however, That nothing contained in this subsection shall be construed to limit the reduction of the levy rate when the terms of the special levy permit a lower reduction: Provided further, That this provision shall not restrict the ability of a local levying body to enact excess levies as authorized under existing statutory or Constitutional provisions.

(e) If any provision of this section is held invalid, such invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or its application and to this end the provisions of this section are declared to be severable.

§11-8-7. Increase of current expense levies when debt levies not required.

If the allocation made to a taxing unit for the purposes of debt incurred prior to the adoption of the Tax Limitation Amendment is not required, in whole or in part, for the purposes of such debt, the governing body may, with the prior written approval of the Tax Commissioner, increase the rates allocated for general current expenses by the amount not required for debt purposes.

§11-8-8. Levies by board of public works; certification.

The state board of public works shall, on or before April 15 of each year, levy on the one hundred dollars' valuation of each class of property subject to taxation in the state the rates fixed by section six-a of this article. The board shall forthwith certify its action to the State Tax Commissioner and to the assessor of each county.

§11-8-9. Meetings of local levying bodies.

(a) Each local levying body shall hold a meeting or meetings between the seventh and twenty-eighth days of March for the transaction of business generally and particularly for the business herein required.

(b) When a levy is placed on the ballot for consideration during a primary election, each local levying body may extend its time to meet as a levying body until the first day of June of that year.

(c) The State Auditor shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the purposes of this subsection. The proposed rules shall include a procedure for a local levying body to apply for permission to extend the time to meet as a levying body, requiring the local levying body to cite the reason a timely meeting was not held and that the meeting, if approved by the State Auditor, be held in compliance with article nine-a, chapter six of this code relating to open governmental proceedings at a time set by the State Auditor.

(1) The State Auditor shall require all levying bodies to file a report of their meetings as required in this article with the State Auditor on or before the first day of April.

(2) The State Auditor shall notify any levying body, which has not filed a report of their meetings to the State Auditor by the first day of April, that the levying body must meet and file a report of that meeting no later than the fifteenth day of April.

(3) For any meeting after the fifteenth day of April, the State Auditor, may allow a late meeting and late report on or before the first day of May, if the State Auditor finds good cause to so allow a meeting and report to be filed after the fifteenth day of April and not later than the first day of May.

§11-8-10. Levy estimate by county court; certification to Tax Commissioner and publication.

The county court shall, at the session provided for in section nine of this article, ascertain the fiscal condition of the county, and make an itemized statement setting forth:

(1) The amount due and the amount that will become due and collectible from every source during the current fiscal year except from the levy of taxes to be made for the year upon the county as a whole and upon any district of the county for which the levies are laid by the county court;

(2) The interest, sinking fund and amortization requirements for the current fiscal year of bonded indebtedness legally incurred upon a vote of the people, as provided by law, prior to the adoption of the Tax Limitation Amendment, owing by the county as a whole and by any district;

(3) Other contractual indebtedness not bonded, legally incurred prior to the adoption of the Tax Limitation Amendment, owing by the county as a whole and such debts owing by any district;

(4) All other expenditures to be paid out of the receipts for the current fiscal year, with proper allowance for delinquent taxes, exonerations and contingencies;

(5) The total amount necessary to be raised for each fund by the levy of taxes for the current year;

(6) The proposed county levy in cents on each one hundred dollars' assessed valuation of each class of property for the county and its subdivisions;

(7) The proposed levy in each district for district funds, if any, on each one hundred dollars' valuation of each class of property;

(8) The separate and aggregate amounts of the real, personal and public utility properties in each class in the county and in each subdivision thereof.

A copy of the statement, duly certified by the clerk of the court, shall be forwarded to the Tax Commissioner, and the clerk shall publish the statement forthwith. The session shall then stand adjourned until the third Tuesday in April, at which time it shall reconvene.

§11-8-10a. Adjourned session of county court to hear objections to proposed levies; approval of estimate and levy by Tax Commissioner; first levy for bonded indebtedness, second for indebtedness not bonded, then for current expenses.

The county court shall, when it reconvenes upon the third Tuesday in April, hear and consider any objections made orally or in writing by the prosecuting attorney, by the Tax Commissioner or his representative, or by any taxpayer of the county, to the estimate and proposed levy or to any item thereof. The court shall enter of record any objections so made and the reasons and grounds therefor.

The failure of any officer or taxpayer to offer objections shall not preclude him from pursuing any legal remedy necessary to correct any levy made by any fiscal body under this article.

The court, after hearing objections, shall reconsider the proposed original estimate and proposed rates of levy, and if the objections are well taken, shall correct the estimate and levy. No such estimate and levy, however, shall be entered until the same shall have first been approved, in writing, by the Tax Commissioner. When the same shall have been approved by the Tax Commissioner, the clerk shall then enter the estimate and levy, together with the order of the court approving them and the written approval of the Tax Commissioner thereof, in the proper record book.

The county court shall then levy as many cents per one hundred dollars' assessed valuation on each class of property in the county or its subdivisions, as the case may be, as will produce the amounts, according to the last assessments, shown to be necessary by the statement in the following order:

First, for the bonded debt and for the contractual debt not bonded, if any, of the county incurred prior to the adoption of the Tax Limitation Amendment;

Second, for the bonded debt and for the contractual debt not bonded, if any, of any magisterial or special taxing district for which the county court is required to lay the levy;

Third, for general current expenses of the county.

The rates of levy for each purpose shall not exceed the amounts fixed by section six-b unless another rate is authorized by the Tax Commissioner in accordance with this article. When less than the maximum levies are imposed, the levies on each class of property shall be in the same proportions as the maximum authorized.

§11-8-11. Certification of levy order; duties of clerk, assessor and collecting officer; delinquent lists.

When an order is made for a levy the clerk of the court, within three days, shall prepare, certify and forward copies to the Tax Commissioner, the State Auditor, the assessor and the officer who, according to law, is required to collect the levy. He shall charge the collecting officer with the amount of the levy in the proper account book. The assessor shall immediately extend the taxes in the land and personal property books. The officer who is required to collect the levy shall make out proper tax bills. County levies shall be collected by the sheriff at the same time, in the same manner, and under the same regulations as other taxes are collected. Delinquent lists for county levies shall be returned and delinquent lands sold for county levies in the same manner and at the same place and under the same regulations that lands returned delinquent for state taxes are returned and sold.

§11-8-12. Levy estimate by board of education; certification and publication.

Each board of education shall, at the session provided for in section nine of this article, if the laying of a levy has been authorized by the voters of the district under article nine, chapter eighteen of the code, ascertain the condition of the fiscal affairs of the district, and make a statement setting forth:

(1) The amount due, and the amount that will become due and collectible during the current fiscal year except from the levy of taxes to be made for the year;

(2) The interest, sinking fund and amortization requirements for the fiscal year of bonded indebtedness legally incurred upon a vote of the people, as provided by law, by any school district existing prior to May 22, 1933, before the adoption of the Tax Limitation Amendment;

(3) Other contractual indebtedness not bonded, legally incurred by any such school district existing prior to May 22, 1933, before the adoption of the Tax Limitation Amendment, owing by such district;

(4) The amount to be levied for the permanent improvement fund;

(5) The total of all other expenditures to be paid out of the receipts for the current fiscal year, with proper allowance for delinquent taxes, exonerations and contingencies;

(6) The amount of such total to be raised by the levy of taxes for the current fiscal year;

(7) The proposed rate of levy in cents on each $100 assessed valuation of each class of property;

(8) The separate and aggregate amounts of the assessed valuation of real, personal and public utility property within each class.

The secretary of the board shall forward immediately a certified copy of the statement to the Auditor and shall publish the statement immediately. The session shall then stand adjourned until the third Tuesday in April, at which time it shall reconvene except where otherwise permitted by section nine of this article: Provided, That no provision of this section or section nine of this article may be construed to abrogate any requirement imposed on the board of education by article nine-b, chapter eighteen of this code.

§11-8-12a. Adjourned session of board of education to hear objections to proposed levies; approval of estimate and levy by Tax Commissioner; first levy for bonded and other indebtedness and indebtedness not bonded, second for Permanent Improvement Fund, then for current expenses.

Each board of education, when it reconvenes as provided by section twelve of this article, shall proceed in a manner similar in all respects to that provided for in section ten-a of this article. The board may not finally enter any levy until it has been approved in writing by the Auditor. After receiving the approval, the board shall enter the statement as approved in its record of proceedings, together with the written approval.

The board shall levy as many cents per $100 assessed valuation on each class of property in the county or in the area of a preexisting school district, as the case may be, as will produce the amounts, according to the last assessment, shown to be necessary by the statement in the following order:

First, for the bonded debt and for the contractual debt not bonded, if any, of any school district of the county existing before May 22, 1933, and incurred before the adoption of the Tax Limitation Amendment;

Second, for the Permanent Improvement Fund;

Third, for general current expenses.

The rates of levy for each purpose may not exceed the amounts fixed by section six-c unless another rate is authorized by the Tax Commissioner or set by the Legislature in accordance with this article. When less than the maximum levies are imposed, the levies on each class of property shall be in the same proportions as the maximums authorized.

§11-8-13. Certification of levy order to Tax Commissioner and county superintendent; reports by superintendent of levies; extension and collection of levies.

Within three days after the board of Education has laid the levies, the secretary of the board shall forward to the county superintendent and to the Tax Commissioner certified copies of the orders laying levies and the rate of levy upon each class. Within three days thereafter the county superintendent shall report the rate of levy for each of the various classes and the total value of real, personal, and public utility property in each class in every district to the clerk of the county court, the assessor, the state superintendent and the Auditor. The proper county officers shall then extend on the property books the amount of taxes levied. The sheriff shall collect and account for the taxes as required by law.

§11-8-14. Levy estimate by municipality; certification to Tax Commissioner and publication.

A municipal governing body shall, at the session provided for in section nine, ascertain the fiscal condition of the corporation, and make an itemized statement setting forth:

(1) The amount due and the amount that will become due and collectible from every source during the current fiscal year except from the levy of taxes to be made for the year;

(2) The interest, sinking fund and amortization requirements for the fiscal year of bonded indebtedness, legally incurred upon a vote of the people as provided by law, prior to the adoption of the Tax Limitation Amendment;

(3) Other contractual indebtedness, not bonded, legally incurred prior to the adoption of the Tax Limitation Amendment, owing by the municipality;

(4) All other expenditures to be paid out of the receipts of the municipality for the current fiscal year with proper allowance for delinquent taxes, exonerations, and contingencies;

(5) The total amount necessary to be raised by the levy of taxes for the current fiscal year;

(6) The proposed rate of levy in cents on each one hundred dollars' assessed valuation of each class of property; and

(7) The separate and aggregate assessed valuations of real, personal and public utility property in each class in the municipality.

The recording officer of the municipality shall forward immediately a certified copy of the statement to the Tax Commissioner, and shall publish the statement forthwith. The session shall then stand adjourned until the third Tuesday in April, at which time it shall reconvene.

§11-8-14a. Adjourned session of municipal governing body to hear objections; approval of levies by Tax Commissioner; first levy for bonded indebtedness and indebtedness not bonded, then for current expenses.

The governing body of a municipality when it reconvenes on the third Tuesday in April shall proceed in a manner similar in all respects to that provided for in section ten-a of this article.

The governing body shall not finally enter any levy until it has been approved in writing by the State Tax Commissioner. After receiving such approval, the governing body shall enter the statement as approved in its record of proceedings, together with the written approval.

The governing body shall levy as many cents per hundred dollars' assessed valuation on each class of property in the municipality as will produce the amounts, according to the last assessment, shown to be necessary by the statement in the following order:

First, for the bonded debt and for the contractual debt not bonded, if any, of the municipality incurred prior to the adoption of the Tax Limitation Amendment;

Second, for general current expenses.

The rates of levy for each purpose shall not exceed the amounts fixed by section six-d unless another rate is authorized by the Tax Commissioner in accordance with this article. When less than the maximum levies are imposed, the levies on each class of property shall be in the same proportions as the maximums authorized.

§11-8-14b. Levy of additional tax.

The governing body of any municipality may impose any tax not theretofore levied, or may increase any tax theretofore levied, and may make said tax or increase effective as of the date of the adoption of the ordinance imposing or increasing said tax, or as of any date thereafter specified in the ordinance regardless of whether or not said tax or the increase thereof is included within the levy estimate for the current or ensuing fiscal year, provided for in section fourteen of this article: Provided, That when said tax or increase is not included within such levy estimate, such tax or increase shall not be imposed until such levy estimate is revised in accordance with the provisions of section twenty-six-a hereof. If such tax or increase is continued in effect during subsequent fiscal years, it shall thereafter be included in the levy estimate.

§11-8-15. Certification of municipal levies.

Within three days after the council of a municipality has laid the levies, its recording officer shall forward certified copies of the order laying the levies to the Tax Commissioner, the State Auditor and the officer whose duty it is to extend the levies.

§11-8-16. What order for election to increase levies to show; vote required; amount and continuation of additional levy; issuance of bonds.

A local levying body may provide for an election to increase the levies by entering on its record of proceedings an order setting forth:

(1) The purpose for which additional funds are needed;

(2) The amount for each purpose;

(3) The total amount needed;

(4) The separate and aggregate assessed valuation of each class of taxable property within its jurisdiction;

(5) The proposed additional rate of levy in cents on each class of property;

(6) The proposed number of years, not to exceed five, to which the additional levy applies;

(7) The fact that the local levying body shall or shall not issue bonds, as provided by this section, upon approval of the proposed increased levy.

The local levying body shall submit to the voters within their political subdivision the question of the additional levy at either a regularly scheduled primary or general election in accordance with the requirements of §3-1-31 of this code. If at least 60 percent of the voters cast their ballots in favor of the additional levy, the county commission or municipality may impose the additional levy. If at least a majority of voters cast their ballot in favor of the additional levy, the county board of education may impose the additional levy: Provided, That any additional levy adopted by the voters, including any additional levy adopted prior to the effective date of this section, shall be the actual number of cents per each $100 of value set forth in the ballot provision, which number shall not exceed the maximum amounts prescribed in this section, regardless of the rate of regular levy then or currently in effect, unless such rate of additional special levy is reduced in accordance with the provisions of §11-8-6g of this code or otherwise changed in accordance with the applicable ballot provisions. For county commissions, this levy shall not exceed a rate greater than seven and fifteen hundredths cents for each $100 of value for Class I properties, and for Class II properties a rate greater than twice the rate for Class I properties, and for Class III and IV properties a rate greater than twice the rate for Class II properties. For municipalities, this levy shall not exceed a rate greater than six and twenty-five hundredths cents for each $100 of value for Class I properties, and for Class II properties a rate greater than twice the rate for Class I properties, and for Class III and IV properties a rate greater than twice the rate for Class II properties. For county boards of education, this levy shall not exceed a rate greater than twenty-two and ninety-five hundredths cents for each $100 of value for Class I properties, and for Class II properties a rate greater than twice the rate for Class I properties, and for Class III and IV properties a rate greater than twice the rate for Class II properties.

Levies authorized by this section shall not continue for more than five years without resubmission to the voters.

Upon approval of an increased levy as provided by this section, a local levying body may immediately issue bonds in an amount not exceeding the amount of the increased levy plus the total interest thereon, but the term of the bonds shall not extend beyond the period of the increased levy.

Insofar as they might concern the issuance of bonds as provided in this section, the provisions of §13-1-3 and §13-1-4 of this code shall not apply.

In the event that a majority of the votes cast upon a question submitted pursuant to this section at any primary election be against the question, the question may again be submitted to the voters at the next succeeding general election.

§11-8-16A.

Repealed.

Acts, 2014 Reg. Sess., Ch. 47.

§11-8-17. Special levy elections; notices; conduct of election; supplies; canvass of returns; form of ballot.

(a) The local levying body shall publish a notice, calling the election, as a Class II-0 legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be the territory in which the election is held. Such notice shall be so published within 14 consecutive days next preceding the election.

(b) All the provisions of the law concerning general elections shall apply so far as they are practicable: Provided, That notwithstanding any provision of this code to the contrary, in the case of a levy which expires at a time after July 1, 2022, and which shall not be up for renewal at the next regularly scheduled primary or general election thereafter, the local levying body shall by ordinance choose to hold the election to renew that levy either at the next regularly scheduled primary or general election in accordance with §3-1-31 of this code: Provided, however, That notwithstanding any other provision of this code, a local levying body may enter an order authorizing a special election prior to the expiration of the existing or expiring levy for the purpose of presenting to the voters the question of synchronizing the renewal of an existing or expiring levy with a future regularly scheduled primary or general election, which question shall pass upon adoption by a majority of participating voters.

(c) The question on the special levy shall be placed on the ballot in accordance with the ballot placement order prescribed by §3-5-13a(a) of this code. The question heading shall be entitled: “Special Levy Election” and the question shall be significantly in the following form: “Special election to authorize additional levies for the year(s) ____________ and for the purpose of _____________ according to the order of the __________________ entered on the ______ day of ________________.”

The additional levy shall be on Class I property __________ cents; on Class II property ______________ cents; on Class III property (if any) ______________ cents; on Class IV property (if any) _____________ cents.

(d) In the event that a majority of the votes cast upon a question submitted pursuant to this section at any primary election be against the question, the question may again be submitted to the voters at the next succeeding general election.

§11-8-18. Tax commissioner to furnish forms of statements and Attorney General to furnish forms for elections.

The Tax Commissioner shall prepare and furnish forms and instructions for making the statement required in sections ten, twelve, and fourteen of this article. The Attorney General shall prepare and furnish forms and instructions for the holding of any election authorized by this article.

§11-8-19.

Repealed.

Acts, 1939 Reg. Sess., Ch. 132.

§11-8-19a.

Repealed.

Acts, 1939 Reg. Sess., Ch. 132.

§11-8-20. Levy apportioned to taxing district for current expense but not needed may be used for its debt purposes or passed on to lesser taxing district for debt purposes.

When the levies apportioned to, or in any way becoming available to any tax levying body for debt purposes alone, shall be insufficient to meet the requirements for such indebtedness, then if there remain any part of the amount authorized to be levied and apportioned to such taxing body for current expense purposes and not required for such current expense purposes, such remaining part shall be laid by such fiscal body in addition to its laying of the levies hereby expressly apportioned to it for said debt purposes and applied to the payment of its said contractual indebtedness existing at the time of the adoption of the "Tax Limitation Amendment." When any of the levies apportioned for current expenses to any larger taxing district are not all required by such taxing district for current expense and are not required for indebtedness of such taxing district, then, with the consent and approval in writing, of the Tax Commissioner, as provided in the next preceding section, such lesser taxing district may likewise utilize, for debt purposes only, the unused portion thereof.

§11-8-21. Amount of levy, with consent of Tax Commissioner, when fiscal body required by law to levy for indebtedness, property within municipality not being subject to levy.

In any case in which the county court, the board of Education, or other fiscal body is required by law to lay the levies for the payment of any indebtedness of any taxing district, for which indebtedness the property situated within any incorporated municipality is not subject to such levy, such county court, Board of Education, or other fiscal body may lay a levy of twelve and one-half cents on Class I property and 25¢ on Class II property for such indebtedness purposes only: Provided, That the consent and approval in writing of the Tax Commissioner be had. The estimates and levies under this section shall be made at the same time, and in the same manner as other levies in this article provided for are required to be made, and copies of such estimates and proposed levies shall be forwarded to the Tax Commissioner at the same time and in the same manner as other estimates and levies.

§11-8-22. Supersedeas to levy order; rescission or reversal; return of money collected; recovery by action.

Within forty days after an order for a levy the circuit court of the county, or the judge in vacation, may allow a writ of supersedeas on the petition of at least twenty-four persons interested in reversing the order. The levying body, without awaiting the final decision, may rescind the order, and impose a new levy. If the court, on the hearing, finds that the order is contrary to law and reverses the order, the levying body shall impose a levy according to law. If money is collected under any order which is afterward rescinded or reversed, the collecting officer shall, upon demand, refund any payment to the person from whom it was collected. If the collecting officer fail to repay the amount, he and his sureties shall be jointly and severally liable for the amount and the costs of recovery. Recovery may be had by summons before a justice or on motion in the circuit court.

§11-8-23. Statement of fiscal body when levies not sufficient to meet requirements of existing contractual indebtedness.

When the entire apportionment of levies for the payment of such contractual indebtedness existing at the time of the adoption of the "Tax Limitation Amendment," together with the application to such indebtedness of such part, if any, of the levies allocated for current expenses and not required therefor and applied to such indebtedness as hereinabove provided, are not sufficient to meet the current requirements of principal and/or interest upon legally existing contractual indebtedness, existing at the time of the adoption of the "Tax Limitation Amendment" and remaining unpaid, then the levying body shall prepare a statement showing in detail:

(1) The items of expenditure upon which the estimate of current expense is based;

(2) A detailed itemized statement of:

(a) The bonded indebtedness, if any there be, existing prior to the adoption of the "Tax Limitation Amendment," in whole or in part, not provided for by the levies hereinbefore authorized;

(b) Other contractual indebtedness, not bonded, if any there be, legally incurred prior to the adoption of the "Tax Limitation Amendment," in whole or in part, not provided for by the levies hereinbefore authorized;

(3) The requirements of such bonded indebtedness not provided for by the levies hereinbefore authorized;

(a) The requirements of such other contractual indebtedness, not bonded, not provided for by the levies hereinbefore authorized;

(4) The separate and aggregate amounts of the real, personal, and public utility properties in each class subject to taxation within the taxing district;

(5) The rates of levy in cents on each one hundred dollars' assessed valuation of each class of property necessary to produce the amount required (a) for such bonded indebtedness, and (b) for such other contractual indebtedness not bonded, and not provided for by the levies hereinbefore authorized, and which rates of levies shall be in the proportion of 1¢ on Class I property, 2¢ on Class II property, and 4¢ on Classes III and/or IV property.

The recording officer of the fiscal body shall forthwith forward a certified copy of this statement to the State Tax Commissioner in the same manner and at the same time as required in sections eleven, thirteen and fifteen of this article for the regular levies imposed by the levying body, and notice of this proposed levy shall be published at the same time and in the same manner as required for other levies proposed by the fiscal body. The Tax Commissioner upon receipt of such estimate shall proceed to carefully examine and analyze the estimate for current expense and determine what items, if any, may be reduced or eliminated therefrom. If the Tax Commissioner find that any of such items, in whole or in part, may be eliminated or reduced without impairing the governmental functions of such fiscal body, he shall require such fiscal body to so eliminate or reduce such estimate until such estimate shall constitute only so much as may in the opinion of the Tax Commissioner be indispensable to the orderly discharge of the governmental functions of such fiscal body; and such proportion of the levies for current expense as are represented by such reductions may be applied by said fiscal body to the increase of the levies of such fiscal body for contractual indebtedness. The Tax Commissioner shall also carefully examine the itemized list of contractual obligations for the payment of which the levy under this section is proposed to be made, and shall ascertain whether such obligations are in fact contractual; whether the same were created prior to the adoption of the "Tax Limitation Amendment," and whether or not, except for the levy proposed under this section, the obligation thereof will be impaired. The Tax Commissioner shall make a statement of his findings in writing, and if such findings of the Tax Commissioner show that the levies for current expense of such fiscal body are no more than are indispensable to the orderly discharge of the governmental functions of such fiscal body, and that except for the levies proposed to be laid under this section, the obligation of valid contracts incurred prior to the adoption of the "Tax Limitation Amendment" will be impaired, the fiscal body may then with the approval of the Tax Commissioner lay such a levy on the several classes of property in proportion to 1¢ on Class I property, 2¢ on Class II property, and 4¢ on Classes III and/or IV properties, which, together with the other levies provided for in this article, shall not exceed any Constitutional limitations applicable thereto in effect immediately prior to the time of the adoption of the "Tax Limitation Amendment," at the same time and in the same manner as other levies in this article provided for, and the proceeds thereof when collected, together with the other levies for such contractual indebtedness herein provided for, shall be held and kept separate and apart from all other funds of said fiscal body and shall be used solely for the purpose of paying such indebtedness.

§11-8-24. Petition for review of findings of tax commissioner and levy order; notice of intention to file; intervention; hearing and findings; appeal to Supreme Court of Appeals; refund if liens found excessive; recovery by action.

Any taxpayer or other person legally interested in the levy provided for by section twenty-three hereof, if aggrieved by the findings of the Tax Commissioner and his approval of such levy, and by the laying of such levy by the fiscal body, may have a review of the findings of the Tax Commissioner and the laying of such levy by the circuit court of the county in which the greater part of such taxpayer's or other person's property affected by such levy is situated, by presenting to such circuit court, either in term or to the judge thereof in vacation, within ten days after the entry of the order laying such levy shall have been made by such fiscal body, his petition for such review. Such taxpayer or other person shall give at least five days' notice in writing of his intention to file such petition to the Tax Commissioner, to the prosecuting attorney of the county of the circuit court of the county in which said petition will be presented, and to the presiding officer of the fiscal body laying the levy. Any other person legally interested in the laying or in the disaffirmance of the laying of the levy provided for in the preceding section, may, by petition in writing, intervene in said hearing and be made a party thereto with any and all rights of any other party therein and with any and all rights of any litigant in a chancery cause, insofar as the principles thereof be applicable, including the right of appeal as hereinafter provided for. The circuit court or the judge thereof in vacation shall, insofar as applicable, consider the petition as a bill in equity, and the court or judge shall forthwith, either in term or in vacation, proceed to consider such petition, the estimates and levies, and the findings of the Tax Commissioner, and may hear and consider evidence on behalf of such taxpayer or other person, the fiscal body laying the levy, and any other person interested in the laying of such levy, relating to the necessity and propriety of laying such levies under said section twenty- three, which evidence on the motion of any party appearing therein shall be made a part of the record. Upon such hearing the court or judge may affirm or disaffirm the findings of the Tax Commissioner and the laying of the levy, or may make such modification of such findings and such levies as to the court or judge may appear proper. Whereupon, the levies shall be laid in accordance with the findings of the court or judge as though such findings had been made by the Tax Commissioner, under the provisions of the said section twenty-three hereof. An appeal to the Supreme Court of Appeals of West Virginia from the findings of the circuit court may be had by any party in interest appearing in the hearing, in like manner, so far as applicable, as in an equity cause, by petition for appeal to said supreme court presented to the supreme court or to any judge thereof, or filed in the office of the clerk of the supreme court within two weeks after the entry of the final order of the circuit court therein. Pending final determination of such judicial review, the levies made under section twenty-three shall be laid and the taxes therefrom collected; and if the final determination be that the levies under section twenty-three be in excess of the amounts required for such indebtedness, such excess shall be refunded by the collecting officer on demand to the person from whom it was collected as hereinafter provided, or if the final finding be that the levies for current expense of such fiscal body be excessive, the excess thereof shall be transferred from the current expense revenues to the revenues of such indebtedness, if required therefor, and, if not required therefor, the collecting officer shall, upon demand, refund any such excess payment to the person from whom it was collected. If the collecting officer fail to repay the amount, he and his sureties shall be jointly and severally liable for the amount and the costs of recovery. Recovery may be had by summons before a justice or on motion, before the circuit court.

§11-8-25. Funds expended only for purposes for which raised.

Except as otherwise provided in this article, boards or officers expending funds derived from the levying of taxes shall expend the funds only for the purposes for which they were raised.

§11-8-25a. Right of county court to expend surplus funds for equalization and revaluation.

In order to permit county courts to participate more fully in an equalization and revaluation program, which equalization and revaluation would result in increased local support for the public schools, any county court having funds in excess of the amount needed for the purpose for which such funds were raised, may expend such funds for any equalization and revaluation program upon the written approval of the State Tax Commissioner, provided that under no circumstances shall a county court expend money or incur obligations in excess of the funds available for current expenses.

§11-8-26. Unlawful expenditures by local fiscal body.

(a) Except as provided in sections fourteen-b, twenty-five-a and twenty-six-a of this article, a local fiscal body shall not expend money or incur obligations:

(1) In an unauthorized manner;

(2) For an unauthorized purpose;

(3) In excess of the amount allocated to the fund in the levy order; or

(4) In excess of the funds available for current expenses.

(b) Notwithstanding the foregoing and any other provision of law to the contrary, a local fiscal body or its duly authorized officials may not be penalized for a casual deficit which does not exceed its approved levy estimate by more than three percent: Provided, That such casual deficit is satisfied in the levy estimate for the succeeding fiscal year: Provided, however, That in calculating a deficit for purposes of this section, account shall not be taken of any amount for which the local fiscal body may be liable for the unfunded actuarial accrued liability of the West Virginia Retiree Health Benefit Trust Fund or any amount allocated to the local fiscal body as an employer annual required contribution that exceeds the minimum annual employer payment component of the contribution, all as provided under article sixteen-d, chapter five of this code.

§11-8-26a. Revision of levy estimate.

The Tax Commissioner shall, by uniform regulations, provide for the revision of the levy estimate of a county court or municipality to permit expenditures for purposes for which no appropriation or an insufficient appropriation was made in the annual levy estimate as approved by the Tax Commissioner. The revision shall be made only with the prior written approval of the Tax Commissioner.

§11-8-27. When indebtedness, contracts or drafts are void.

Any indebtedness created, contract made, or order or draft issued in violation of sections twenty-five and/or twenty-six of this article shall be void.

§11-8-28. Suit to recover unlawful expenditure or to cancel obligation.

Whenever a fiscal body expends money or incurs obligations in violation of sections twenty-five and/or twenty-six of this article, suit shall be instituted by the prosecuting attorney of the county or the Attorney General of the state, in a court of competent jurisdiction to recover the money expended or to cancel the obligation, or both.

§11-8-29. Personal liability of official participating in unlawful expenditure.

A person who in his official capacity negligently participates in the violation of either section twenty-five or section twenty-six of this article shall be personally liable, jointly and severally, for the amount illegally expended.

§11-8-30. Recovery of unlawful expenditure from participating official by action; costs.

A person who in his official capacity negligently participates in an illegal expenditure may be proceeded against for the recovery of the amount illegally expended. The political subdivision concerned, a taxpayer of the subdivision, the State Tax Commissioner or a person prejudiced may bring the proceeding.

All moneys recovered in these proceedings shall be paid into the treasury of the proper fiscal body and credited to the proper fund. Recovery in these proceedings shall, in all cases, include the principal and interest on the principal at a reasonable rate of interest as set by the court in the judgment order and may include, in the discretion of the court, a penalty of not more than twenty-five percent of the aggregate amount of the judgment and interest.

If the plaintiff prevail, he shall recover against the defendant, the costs of the proceedings, including a reasonable attorney's fee to be fixed by the trial court and included in the taxation of costs.

§11-8-31. Criminal liability of official violating provisions of article; proceeding for removal.

A person who in his official capacity willfully violates the provisions of this article shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than $500, or confined in jail not more than one year, or both. Upon conviction he shall also forfeit his office: Provided, That no liability shall arise under the provisions of this section so far as obligations may have been incurred or may be incurred prior to the time tax levies may be made under the provisions of this article by fiscal bodies having for their purpose the maintenance and operation of free schools or other governmental functions for the fiscal year one thousand nine hundred thirty-three--one thousand nine hundred thirty-four.

Proceedings for the removal of a member of a local fiscal body who has willfully or with gross negligence violated any of the provisions of this article shall be brought and maintained in accordance with and shall be subject to the provisions of section seven, article six, chapter six of this code.

An attested copy of the petition and the charges contained therein shall be served upon the defendants at least twenty days prior to the date of hearing. No other pleading or notice of the proceedings shall be necessary.

If any person in his or her official capacity participates in an illegal expenditure and in so doing acts in accordance with and upon the advice of his or her statutory attorney or duly appointed attorney, which advice was asked for, received and given in good faith, such person so acting shall not be deemed guilty of gross negligence or of willfully violating any of the provisions of this article but may be found to have so acted in a negligent manner and may be proceeded against for the recovery of the amount illegally or improperly expended, both personally or upon his or her official bond.

§11-8-31a. Recovery of attorneys' fees authorized.

The governing body of the governmental entity of which a person is an official is hereby authorized to reimburse such person for the reasonable amount of such person's attorney fees in any case:

(a) Wherein such person has successfully defended against an action seeking his or her removal from office, or

(b) Wherein such person has successfully defended against an action seeking the recovery of moneys alleged to have been wrongfully expended.

In either case such governing body shall have authority to determine if such reimbursement is warranted and the reasonableness of the amount sought to be recovered.

§11-8-32. Publication.

The requirement of publication under this article shall be met by publication as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty- nine of this code, and the publication area for such publication shall be the taxing unit.

§11-8-33. Exceptions as to fiscal year beginning July 1, 1961, and as to city of Huntington.

Notwithstanding the provisions of sections eight, nine, ten, ten-a, twelve, twelve-a, fourteen and fourteen-a of this article, the provisions of this article as of January 1, 1961, shall govern levies for the fiscal year beginning July 1, 1961; nor shall the powers heretofore given the board of park commissioners of the city of Huntington, by chapter twenty-six, acts of the Legislature, 1925 and subsequent amendments thereto be in any manner impaired by the provisions of this article, and further that levies to be laid by said board of park commissioners of the city of Huntington be laid at the same time and in the manner herein provided.

§11-8A-1.

Repealed.

Acts, 1967 Reg. Sess., Ch. 105.

§11-9-1. Short title; arrangement; classification.

This article may be cited as the "West Virginia Tax Crimes and Penalties Act." No inference, implication or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this article, and no legal effect shall be given to any descriptive matter or headings relating to any part, section, subsection or paragraph of this article.

§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 and business privilege taxes imposed by article thirteen-a of this chapter;

(7) Additional severance taxes imposed by article thirteen-v of this chapter;

(8) Telecommunications tax imposed by article thirteen-b of this chapter;

(9) Gasoline and special fuels excise tax imposed by article fourteen of this chapter;

(10) Motor fuels excise tax imposed by article fourteen-c of this chapter;

(11) Motor carrier road tax imposed by article fourteen-a of this chapter;

(12) Interstate fuel tax agreement authorized by article fourteen-b of this chapter;

(13) Consumers sales and service tax imposed by article fifteen of this chapter;

(14) Use tax imposed by article fifteen-a of this chapter;

(15) Tobacco products excise taxes imposed by article seventeen of this chapter;

(16) Soft drinks tax imposed by article nineteen of this chapter;

(17) Personal income tax imposed by article twenty-one of this chapter;

(18) Business franchise tax imposed by article twenty-three of this chapter;

(19) Corporation net income tax imposed by article twenty-four of this chapter; and

(20) Health care provider taxes 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 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.

§11-9-2a. Criminal investigation division established; funding of same.

(a) Criminal investigation division. -- A criminal investigation division consisting of no more than twelve investigators, of which one investigator shall serve as division director, plus necessary support staff, all of whom are exempt from the classified service, is hereby established in the state Tax Division for the purpose of assuring compliance with laws and rules pertaining to the taxes, fees or credits administered under article ten of this chapter, including, but not limited to, the provisions of articles twenty, twenty-one and twenty-three, chapter forty-seven of this code, but not including income taxes, imposed on individuals by article twenty-one of this chapter.

(b) Special audits division. -- A special audits division consisting of no more than eight tax examiners, plus necessary support staff, all of whom are covered by the classified service, is hereby established in the auditing section of the state Tax Division for purposes of assuring compliance with laws and rules pertaining to taxes, fees or credits administered under article ten of this chapter, including, but not limited to, the provisions of articles twenty, twenty-one and twenty-three, chapter forty-seven of this code, but not including income taxes imposed on individuals by article twenty-one of this chapter.

(c) The Legislature hereby finds that the enforcement of the laws and rules pertaining to the taxes, fees or credits administered under article ten of this chapter, as are applicable to persons whose residence or principal place of business is outside of the State of West Virginia, requires greater efforts and investigation than required for resident persons subject thereto, and does further find that there is a greater rate of noncompliance with said laws and rules by nonresident persons. Therefore, the criminal investigation division and the special audits division created in subsections (a) and (b) of this section are hereby directed to expend a significant amount of their efforts to ensure compliance with the laws and rules pertaining to taxes, fees or credits administered under article ten of this chapter in accordance with the authority provided in this section, by persons whose residence or principal place of business is located outside the State of West Virginia.

(d) Deposits of certain fees. -- Charitable bingo fees imposed by article twenty, chapter forty-seven of this code; charitable raffle fees imposed by article twenty-one of said chapter; and charitable raffle boards and games fees imposed by article twenty-three of said chapter in an amount not to exceed the amount appropriated by the Legislature in any fiscal year shall be deposited in a special revenue account established in the Office of the Treasurer. The special revenue account shall be used to support compliance expenditures relating to the establishment, operation, maintenance and support of the criminal investigation division established in subsection (a) of this section and the special audits division established in subsection (b) of this section. The expenditures may include, but shall not be limited to, employee compensation, equipment, office supplies and travel expenses. On the last day of each fiscal year, unencumbered funds in the special revenue account in excess of $150,000 shall be transferred to the General Revenue Fund.

(e) Investigators. -- Investigators employed in the criminal investigation division shall have a background in accounting or law enforcement or related fields pursuant to article twenty-nine, chapter thirty of this code, or its equivalent. Any investigator designated by the Tax Commissioner shall have all the lawful powers delegated to members of the division of public safety except the power to carry firearms and shall have the authority to enforce the provisions of this article and the criminal provisions of any other article of this code to which this article applies, in any county or municipality of this state. The Tax Commissioner shall establish additional standards as he or she considers applicable or necessary. Any employee shall, before entering upon the discharge of his or her duties, execute a bond with security in the sum of $3,500, payable to the State of West Virginia, conditioned for the faithful performance of the employee's duties and the bond shall be approved as to form by the Attorney General and shall be filed with the Secretary of State for preservation in that office. The division of public safety, any county sheriff or deputy sheriff and any municipal police officer upon request by the Tax Commissioner is hereby authorized to assist the Tax Commissioner in enforcing the provisions of this article and any criminal penalty provision of any article of this code to which this article applies.

(f) Class A license plates. -- Notwithstanding the provisions of article three, chapter seventeen-a of this code, upon application by the Tax Commissioner and payment of fees, the Commissioner of Motor Vehicles shall issue a maximum of twenty Class A license plates to be used on state owned or leased vehicles assigned to investigators employed in the criminal investigation division.

(g) Reports. -- On July 1, of each year, beginning in the year one thousand nine hundred ninety-four, the Tax Commissioner shall present a written report to the joint committee on government operations on the division's compliance with the provisions of this section, including, but not limited to, activities of the divisions created by this section and disbursement of funding.

§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, 1931, 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 $100 nor more than $2,500. 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 $1,000 or more and, upon conviction thereof, shall be fined not less than $5,000 nor more than $25,000 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 $1,000, and, upon conviction thereof, shall be fined not less than $500 nor more than $5,000 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 $100 nor more than $500 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.

§11-9-7. False statements to purchasers, lessees, or employees relating to tax.

[Repealed.]

§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 $100 nor more than $1,000 or imprisoned in jail not more than six months, or both fined and imprisoned.

§11-9-9. Aiding, abetting, assisting or counseling in criminal violation.

Any person who shall knowingly aid or abet or assist or counsel another person in the commission of any act prohibited by this article, whether or not such act is with the knowledge or consent of the person required by law to do the act, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or imprisoned in the county 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 $1,000 nor more than $10,000 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.

§11-9-11. Engaging in business without payment of business franchise registration tax; posting business franchise registration certificate.

If any person for more than thirty days:

(1) Engages in business without posting a business franchise registration certificate in the place of business in the manner required by law; (2) engages in business without payment of the business franchise registration tax when required by law; (3) engages in business after expiration of the period of time for which such certificate was granted without obtaining a new certificate; or (4) engages in business after the business franchise registration has been revoked, such person is guilty of a misdemeanor, and, upon conviction thereof, shall be fined $100. Each day or part thereof that any violation continues is a separate offense and punishable accordingly: Provided, That the Tax Commissioner shall promulgate rules and regulations pursuant to chapter twenty-nine-a of this code relating to the posting of business franchise registration certificates, and violations of those rules and regulations shall constitute an offense under this section.

§11-9-12. Engaging in business without a business franchise registration certificate.

If any person engages in business within the State of West Virginia without obtaining a business franchise registration certificate when required by law, such person is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $1,000 nor more than $10,000.

§11-9-13. Release on probation; conditions of probation.

Any circuit court of this state shall have the authority as provided in article twelve, chapter sixty-two of this code, to place on probation any person convicted of a crime pursuant to this article. Release on probation shall be upon the conditions required by section nine, article twelve, chapter sixty-two of this code, and such conditions may include, but need not be limited to, a specified period of public or community service by the probationer.

§11-9-14. Venue.

The Tax Commissioner or any other public officer initiating proceedings against any person shall do so in the county of this state wherein such person resides, if any element of the offense occurred in the county of residence, or if no element of the offense occurs in the county of residence, then the county where the offense was committed.

§11-9-15. Limitation on prosecution.

Every prosecution for any offense arising under this article shall be commenced within three years after the offense was committed, notwithstanding any provision of this code to the contrary.

§11-9-16. Effective date; former law preserved for certain purposes.

(a) The provisions of this article shall take effect on July 1, 1984, and shall apply to criminal violations of this chapter committed on or after such date.

(b) Any criminal violation of this chapter occurring before July 1, 1984, that would have been punishable under one of the sections of this chapter repealed by this act, shall nevertheless be punishable under those sections, as in effect on January 1, 1984, and for such purpose the following sections of this chapter are fully and completely preserved: Section twelve of article twelve, section twenty-two of article twelve-a, section twenty-one of article thirteen, section nine of article fourteen, section ten of article fourteen-a, section twenty-nine of article fifteen, sections nineteen and twenty of article fifteen-a, section ninety-two of article twenty-one and section thirty-eight of article twenty-four.

§11-9-17. Severability.

If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect, impair or invalidate other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.

§11-10-1. Legislative findings.

The Legislature hereby finds and declares that the adoption by this state of certain uniform procedures for the assessment and collection of the taxes administered by the Tax Commissioner to which this article applies will (1) simplify the administration and collection of taxes, and (2) promote efficiency and uniformity of application in the administration of the tax laws. The Legislature does therefore declare that this article ten be construed so as to accomplish the foregoing purposes.

§11-10-2. Short title; arrangement and classification.

This article may be cited as the "West Virginia Tax Procedure and Administration Act." No inference, implication or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this article, and no legal effect shall be given to any descriptive matter or headings relating to any part, section, subsection or paragraph of this article.

§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: (1) The business registration tax; (2) the minimum severance tax on coal; (3) the corporate license tax; (4) the business and occupation tax; (5) the severance tax, additional severance taxes, telecommunications tax; (6) the interstate fuel tax; (7)  the consumers sales and service tax; (8) the use tax; (9) the economic opportunity district excise taxes; (10) the tobacco products excise taxes; (11) the excise tax on e-vapors; (12) the soft drinks tax; (13) the personal income tax; (14) the business franchise tax; (15) the corporation net income tax; (16) the gasoline and special fuels excise tax; (17) the motor fuels excise tax; (18) the motor carrier road tax; (19) the health care provider taxes; (20) the various solid waste assessment fees administered by the Tax Commissioner pursuant to chapters 17, 17A, 20, 22, and 22C of this code; (21) the excise taxes imposed by this code on sales of alcoholic liquor and wine; (22) the various tax credits administered by the Tax Commissioner; (23) any other tax or fee administered by the Tax Commissioner pursuant to this article; and (24) the 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 §11-10-5f of this code 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 §11-16-1 et seq. of this code; and to wine liter tax levied by §60-8-4 of this code.

(c) The provisions of this article apply to any other article of this chapter or of this code when the application is expressly provided by the Legislature.

(d) The provisions of this article apply to municipal sales and use taxes imposed under §8-13C-1 et seq. of this code and collected by the Tax Commissioner.

§11-10-4. Definitions.

For the purpose of this article, the term:

(a) "C corporation" means a legal entity that is taxed separately from its owners under subchapter C of the Internal Revenue Code as defined in §11-21-1 et seq. and §11-24-1 et seq. of this code.

(b) "Information return or report" means any document required to be filed with the Tax Commissioner by any article of this code, which provides information to the Tax Commissioner but does not include an accurately calculated tax liability of an individual or business entity. Information return or report includes, but is not limited to, information returns filed by S corporations pursuant to §11-24-13b of this code, information returns filed by partnerships pursuant to §11-21-58 of this code, any statement required to be furnished under IRC § 6226(a)(2) or under any other provision of the Internal Revenue Code which provides for the application of rules similar to those in IRC § 6226; and any other information return or report required to be filed with the Tax Commissioner pursuant to §11-21A-1 et seq. of this code, or any other article of this code that is administered under §11-10-1 et seq. of this code.

(c) "Officer or employee of this state" shall include, but is not limited to, any former officer or employee of the State of West Virginia.

(d) "Office of Tax Appeals" means the West Virginia Office of Tax Appeals created by §11-10A-3 of this code.

(e) "Pass-through entity" means an entity that is not subject to tax under §11-24-1 et seq. of this code imposing tax on C corporations or other entities taxable as a C corporation for federal income tax purposes.

(f) "Person" shall include, but is not limited to, any individual, firm, partnership, limited partnership, copartnership, joint venture, limited liability company or other pass-through entity, association, corporation, municipal corporation, organization, receiver, estate, trust, guardian, executor, administrator, and also 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 of an act prescribed by the provisions of this article and the provisions of any of the other articles of this chapter or this code which impose taxes administered by the Tax Commissioner, unless the intention to give a more limited or broader meaning is disclosed by the context of this article or any of the other articles of this chapter which impose taxes or fees administered by the Tax Commissioner under this article.

(g) "Return" means for taxable years beginning on or after January 1, 2007, a tax or information return or report, declaration of estimated tax, claim or petition for refund or credit or petition for reassessment which is complete and that is required by, or provided for, or permitted under the provisions of this article (or any article of this chapter administered under this article) which is filed with the Tax Commissioner by, on behalf of, or with respect to any person and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to the return so filed. For purposes of this subsection, "complete" means for taxable years beginning on or after January 1, 2007, the information required to be entered is entered on the applicable return forms. A return form is not to be considered complete if the information required to be entered on the applicable return forms is only contained in amendments or supplements thereto, including supporting schedules, attachments, or lists. A return that is not considered complete is deemed not to be filed:

(1) For purposes of claiming a refund of any tax administered under this article;

(2) For purposes of the commencement of any limitation on any assessment under §11-10-15 of this code;

(3) For purposes of determining the commencement of the period when the Tax Commissioner shall pay interest for the late payment of a refund;

(4) For purposes of additions to tax imposed under §11-10-18, §11-10-18a, or §11-10-18b of this code; or

(5) For purposes of penalties imposed under §11-10-19 of this code.

(h) "State" means any state of the United States or the District of Columbia.

(i) "Tax" or "taxes" includes within the meaning thereof taxes and fees specified in §11-10-3 of this code, and additions to tax, penalties, and interest, unless the intention to give the same a more limited meaning is disclosed by the context.

(j) "Tax commissioner" or "commissioner" means the Tax Commissioner of the State of West Virginia or his or her delegate.

(k) "Taxpayer" means any person required to file a return for any tax or fee administered under this article, or any person liable for the payment of any tax or fee administered under this article.

(l) "Tax administered under this article" means any tax or fee to which this article applies as set forth in §11-10-3 of this code.

(m) "This code" means the Code of West Virginia, 1931, as amended.

(n) "This state" means the State of West Virginia.

§11-10-5. General power; regulations and forms.

The Tax Commissioner shall administer and enforce each tax to which this article applies and, in connection therewith, shall prescribe all necessary forms. The Tax Commissioner may make all needful rules and regulations for the taxes to which this article applies as provided in the state Administrative Procedures Act in chapter twenty-nine-a of this code: Provided, That all rules and regulations of the Tax Commissioner presently in effect on the effective date of this article shall remain in full force and effect until amended or repealed by the Tax Commissioner in the manner prescribed by law.

§11-10-5a. Investigations.

For the purpose of ascertaining the correctness of any tax return or assessment and for the purpose of making an estimate of any taxpayer's liability for tax administered under this article, and for the further purpose of conducting the hearings provided for in section nine or nine-a of this article, the Tax Commissioner shall have the power to examine or cause to be examined, by any agent or representative designated by the Tax Commissioner, any books, papers, records, memoranda, inventory or equipment bearing upon the matters required to be included in the tax return, may make test checks of tax yield, and may require the attendance of the person rendering the tax return or the attendance of any other person having knowledge of the matters contained therein and may take testimony and may require material proof with power to administer oath to such person or persons.

§11-10-5b. Subpoena and subpoena duces tecum.

(a) Power to issue. -- For the efficient administration of the powers vested in the Tax Commissioner by the preceding section, and to facilitate determination or collection of any tax under this article, the Tax Commissioner, or his delegate, shall have the power to issue subpoenas and subpoenas duces tecum, in the name of the state Tax Department, and compel the attendance of witnesses and the production of books, papers, records, documents and testimony at the time and place specified. The Tax Commissioner, or his delegate, may exercise such power, in the name of the state Tax Department, upon request of any person who is a party in any hearing to be held under the provisions of this article, for the purposes of such hearing.

(b) Service. -- Every such subpoena and subpoena duces tecum shall be served at least five days before the return date thereof, by either personal service made by any person over eighteen years of age, or by registered or certified mail, but a return receipt signed by the person to whom subpoena or subpoena duces tecum is directed shall be required to prove service by registered or certified mail. Any party requesting a subpoena or subpoena duces tecum is responsible for service thereof and payment of any fee for such service. Service of other subpoenas and subpoenas duces tecum shall be the responsibility of the Tax Commissioner or his delegate. Any person, except a person in the employ of the state Tax Department, or any party, who serves any such subpoena or subpoena duces tecum shall be entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state.

(c) Fees. -- Fees for the attendance of witnesses subpoenaed shall be the same as for witnesses before the circuit courts of this state. All such fees shall be paid by the Tax Commissioner if the subpoena or subpoena duces tecum was issued, without the request of an interested party, at the insistence of the state Tax Department. All such fees related to any subpoena or subpoena duces tecum issued at the request of a party to an administrative hearing shall be paid by the party who asked that such subpoena or subpoena duces tecum be issued. All requests by interested parties for issuance of subpoena or subpoena duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay such fees.

(d) Motion to quash. -- Upon motion made promptly, and in an event before the time specified in a subpoena or subpoena duces tecum for compliance therewith, the circuit court of the county in which the hearing is to be held or the circuit court of the county in which the person upon whom any such subpoena or subpoena duces tecum was served resides, has his or its principal place of business or is employed, or the circuit court of the county in which any such subpoena or subpoena duces tecum was served, or the judge of any such circuit court in vacation, may grant any relief with respect to any such subpoena or subpoena duces tecum which any such circuit court, under the "West Virginia Rules of Civil Procedure for Trial Courts of Record," could grant, and for any of the same reasons, with respect to any such subpoena or subpoena duces tecum issued from any such circuit court.

(e) Enforcement of compliance. -- In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which he may be lawfully interrogated, the circuit court of the county in which the hearing is being held, or the circuit court of Kanawha County or of the county in which such person resides, has his or its principal place of business or is employed, or the judge thereof in vacation, upon application by the Tax Commissioner, shall compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from such circuit court for a refusal to testify therein.

(f) Testimony under oath. -- Witnesses subpoenaed under this section shall testify under oath or affirmation.

§11-10-5c. Returns by Tax Commissioner.

If any person fails to file any return required by this article or any article administered by this article, at the time required by law or by regulation made under authority of law, or makes and files willfully or otherwise, a false or fraudulent return, the Tax Commissioner may proceed to make such return from any information available to him whether obtained through testimony or otherwise.

§11-10-5d. Confidentiality and disclosure of returns and return information.

(a) General rule. — Except when required in an official investigation by the Tax Commissioner into the amount of tax due under any article administered under this article or in any proceeding in which the Tax Commissioner is a party before a court of competent jurisdiction to collect or ascertain the amount of such tax and except as provided in §11-10-5d(d) through §11-10-5d(n) of this code, it shall be unlawful for any officer, employee, or agent of this state or of any county, municipality, or governmental subdivision to divulge or make known in any manner the tax return, or any part thereof, of any person or disclose information concerning the personal affairs of any individual or the business of any single firm or corporation, or disclose the amount of income, or any particulars set forth or disclosed in any report, declaration, or return required to be filed with the Tax Commissioner by any article of this chapter imposing any tax administered under this article or by any rule of the Tax Commissioner issued thereunder, or disclosed in any audit or investigation conducted under this article. For purposes of this article, tax returns and return information obtained from the Tax Commissioner pursuant to an exchange of information agreement or otherwise pursuant to the provisions of §11-10-5d(d) through §11-10-5d(n) of this code which is in the possession of any officer, employee, agent, or representative of any local or municipal governmental entity or other governmental subdivision is subject to the confidentiality and disclosure restrictions set forth in this article: Provided, That such officers, employees, or agents may disclose the information in an official investigation, by a local or municipal governmental authority or agency charged with the duty and responsibility to administer the tax laws of the jurisdiction, into the amount of tax due under any lawful local or municipal tax administered by that authority or agency, or in any proceeding in which the local or municipal governmental subdivision, authority, or agency is a party before a court of competent jurisdiction to collect or ascertain the amount of the tax. Unlawful disclosure of the information by any officer, employee, or agent of any local, municipal, or governmental subdivision is subject to the sanctions set forth in this article.

(b) Definitions. — For purposes of this section:

(1) Background file document. — The term “background file document”, with respect to a written determination, includes the request for that written determination, any written material submitted in support of the request and any communication (written or otherwise) between the state Tax Department and any person outside the state Tax Department in connection with the written determination received before issuance of the written determination.

(2) Disclosure. — The term “disclosure” means making known to any person in any manner whatsoever a return or return information.

(3) Inspection. — The terms “inspection” and “inspected” means any examination of a return or return information.

(4) Return. — The term “return” means any tax or information return or report, declaration of estimated tax, claim, or petition for refund or credit or petition for reassessment that is required by, or provided for, or permitted under the provisions of this article (or any article of this chapter administered under this article) which is filed with the Tax Commissioner by, on behalf of, or with respect to any person and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the filed return.

(5) Return information. — The term “return information” means:

(A) A taxpayer’s identity; the nature, source, or amount of his or her income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data received by, recorded by, prepared by, furnished to, or collected by the Tax Commissioner with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) or by any person under the provisions of this article (or any article of this chapter administered under this article) for any tax, additions to tax, penalty, interest, fine, forfeiture, or other imposition or offense; and

(B) Any part of any written determination or any background file document relating to such written determination. “Return information” does not include, however, data in a form which cannot be associated with or otherwise identify, directly or indirectly, a particular taxpayer. Nothing in the preceding sentence, or in any other provision of this code, shall be construed to require the disclosure of standards used or to be used for the selection of returns for examination or data used or to be used for determining such standards.

(6) Tax administration. — The term “tax administration” means:

(A) The administration, management, conduct, direction, and supervision of the execution and application of the tax laws or related statutes of this state and the development and formulation of state and local tax policy relating to existing or proposed state and local tax laws and related statutes of this state; and

(B) Includes assessment, collection, enforcement, litigation, publication, and statistical gathering functions under the laws of this state and of local governments.

(7) Taxpayer identity. — The term “taxpayer identity” means the name of a person with respect to whom a return is filed, his or her mailing address, his or her taxpayer identifying number, or a combination thereof.

(8) Taxpayer return information. — The term “taxpayer return information” means return information as defined in §11-10-5d(b)(5) of this code which is filed with, or furnished to, the Tax Commissioner by or on behalf of the taxpayer to whom such return information relates.

(9) Written determination. — The term “written determination” means a ruling, determination letter, technical advice memorandum, or letter or administrative decision issued by the Tax Commissioner.

(c) Criminal penalty. — Any officer, employee, or agent (or former officer, employee, or agent) of this state or of any county, municipality, or governmental subdivision who violates this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or imprisoned for not more than one year, or both, together with costs of prosecution.

(d) Disclosure to designee of taxpayer. — Any person protected by the provisions of this article may, in writing, waive the secrecy provisions of this section for any purpose and any period as he or she states in the written waiver. The Tax Commissioner may, subject to such requirements and conditions as he or she may prescribe, thereupon release to designated recipients such taxpayer’s return or other particulars filed under the provisions of the tax articles administered under the provisions of this article, but only to the extent necessary to comply with a request for information or assistance made by the taxpayer to such other person. However, return information shall not be disclosed to such person or persons if the Tax Commissioner determines that such disclosure would seriously impair administration of this state’s tax laws.

(e) Disclosure of returns and return information for use in criminal investigations. —

(1) In general. — Except as provided in §11-10-5d(e)(3) of this code, any return or return information with respect to any specified taxable period or periods shall, pursuant to and upon the grant of an ex parte order by a federal district court judge, federal magistrate, or circuit court judge of this state, under §11-10-5d(e)(2) of this code, be open (but only to the extent necessary as provided in such order) to inspection by, or disclosure to, officers and employees of any federal agency, or of any agency of this state, who personally and directly engaged in:

(A) Preparation for any judicial or administrative proceeding pertaining to the enforcement of a specifically designated state or federal criminal statute to which this state, the United States, or such agency is or may be a party;

(B) Any investigation which may result in such a proceeding; or

(C) Any state or federal grand jury proceeding pertaining to enforcement of such a criminal statute to which this state, the United States, or such agency is or may be a party. Such inspection or disclosure shall be solely for the use of such officers and employees in such preparation, investigation, or grand jury proceeding.

(2) Application of order. — Any United States attorney, any special prosecutor appointed under Section 593 of Title 28, United States Code, or any attorney in charge of a United States justice department criminal division organized crime strike force established pursuant to Section 510 of Title 28, United States Code, may authorize an application to a circuit court judge or magistrate, as appropriate, for the order referred to in §11-10-5d(e)(1) of this code. Any prosecuting attorney of this state may authorize an application to a circuit court judge of this state for the order referred to in §11-10-5d(e)(1) of this code. Upon the application, the judge or magistrate may grant such order if he or she determines on the basis of the facts submitted by the applicant that:

(A) There is reasonable cause to believe, based upon information believed to be reliable, that a specific criminal act has been committed;

(B) There is reasonable cause to believe that the return or return information is or may be relevant to a matter relating to the commission of such act; and

(C) The return or return information is sought exclusively for use in a state or federal criminal investigation or proceeding concerning such act and the information sought to be disclosed cannot reasonably be obtained, under the circumstances, from another source.

(3) The Tax Commissioner may not disclose any return or return information under §11-10-5d(e)(1) of this code if he or she determines and certifies to the court that the disclosure would identify a confidential informant or seriously impair a civil or criminal tax investigation.

(f) Disclosure to person having a material interest. — The Tax Commissioner may, pursuant to legislative rules promulgated by him or her, and upon such terms as he or she may require, disclose a return or return information to a person having a material interest in the return or return information: Provided, That such disclosure shall only be made if the Tax Commissioner determines, in his or her discretion, that the disclosure would not seriously impair administration of this state’s tax laws.

(g) Statistical use. — This section shall not be construed to prohibit the publication or release of statistics classified to prevent the identification of particular returns and the items thereof.

(h) Disclosure of amount of outstanding lien. — If notice of lien has been recorded pursuant to §11-10-12 of this code, the amount of the outstanding obligation secured by such lien may be disclosed to any person who furnishes written evidence satisfactory to the Tax Commissioner that such person has a right in the property subject to the lien or intends to obtain a right in such property.

(i) Reciprocal exchange. — The Tax Commissioner may, pursuant to written agreement, permit the proper officer of the United States, or the District of Columbia, or any other state, or any political subdivision of this state, or his or her authorized representative, who is charged by law with responsibility for administration of a similar tax, to inspect reports, declarations, or returns filed with the Tax Commissioner or may furnish to such officer or representative a copy of any document, provided any other jurisdiction grants substantially similar privileges to the Tax Commissioner or to the Attorney General of this state: Provided, That pursuant to written agreement the Tax Commissioner may provide to the assessor of any county, sheriff of any county, or the mayor of any West Virginia municipality the federal employer identification number of any business being carried on within the jurisdiction of the requesting assessor, sheriff, or mayor. The disclosure shall be only for the purpose of, and only to the extent necessary in, the administration of tax laws: Provided, however, That the information may not be disclosed to the extent that the Tax Commissioner determines that such disclosure would identify a confidential informant or seriously impair any civil or criminal tax investigation.

(j) Exchange with municipalities and counties. —

(1) The Tax Commissioner shall, upon the written request of the mayor or governing body of any West Virginia municipality, allow the duly authorized agent of the municipality to inspect and make copies of the state business and occupation tax return filed by taxpayers of the municipality and any other state tax returns (including, but not limited to, consumers sales and service tax return information and health care provider tax return information) that is reasonably requested by the municipality. Such inspection or copying shall include disclosure to the authorized agent of the municipality for tax administration purposes of all available return information from files of the tax department relating to taxpayers who transact business within the municipality. The Tax Commissioner shall be permitted to inspect or make copies of any tax return and any return information or other information related thereto in the possession of any municipality, or its employees, officers, agents, or representatives, that has been submitted to or filed with the municipality by any person for any tax including, but not limited to, the municipal business and occupation tax, public utility tax, municipal license tax, tax on purchases of intoxicating liquors, license tax on horse racing or dog racing, and municipal amusement tax.

(2) The Tax Commissioner shall, upon the written request of the county commission of a West Virginia county, allow the duly authorized agent of the county to inspect and make copies of the following records related to tax on the sale of intoxicating liquor and wine:

(A) All records of the Tax Commissioner, including available return information, related to the collection of tax in the county or the remittance of tax to the county pursuant to §60-3-9d or §60-3A-21 of this code; and

(B) All records of the Tax Commissioner, including available return information, related to the collection of tax within the corporate limits of a municipality within the county or the remittance of tax to a municipality within the county pursuant to §60-3-9d or §60-3A-21 of this code.

(3) The Tax Commissioner shall, upon the written request of the mayor or governing body of a West Virginia municipality, allow the duly authorized agent of the municipality to inspect and make copies of the following records related to tax on the sale of intoxicating liquor and wine:

(A) All records of the Tax Commissioner, including available return information, related to the collection of tax within the corporate limits of the municipality or the remittance of tax to the municipality pursuant to §60-3-9d and §60-3A-21 of this code;

(B) All records of the Tax Commissioner, including available return information, related to the collection of tax within the county in which the municipality is located but outside the corporate limits of another municipality pursuant to §60-3-9d and §60-3A-21 of this code; and

(C) All records of the Tax Commissioner, including available return information, related to the remittance of tax to the county in which the municipality is located pursuant to §60-3-9d and §60-3A-21 of this code.

(k) Release of administrative decisions. — The Tax Commissioner shall release to the public his or her administrative decisions, or a summary thereof: Provided, That unless the taxpayer appeals the administrative decision to a circuit court or waives in writing his or her rights to confidentiality, any identifying characteristics or facts about the taxpayer shall be omitted or modified to an extent so as to not disclose the name or identity of the taxpayer.

(l) Release of taxpayer information. — If the Tax Commissioner believes that enforcement of the tax laws administered under this article will be facilitated and enhanced thereby, he or she shall disclose, upon request, the names and address of persons:

(A) Who have a current business registration certificate;

(B) Who are licensed employment agencies;

(C) Who are licensed collection agencies;

(D) Who are licensed to sell drug paraphernalia;

(E) Who are distributors of gasoline or special fuel;

(F) Who are contractors;

(G) Who are transient vendors;

(H) Who are authorized by law to issue a sales or use tax exemption certificate;

(I) Who are required by law to collect sales or use taxes;

(J) Who are foreign vendors authorized to collect use tax;

(K) Whose business registration certificate has been suspended or canceled or not renewed by the Tax Commissioner;

(L) Against whom a tax lien has been recorded under §11-10-12 of this code (including any particulars stated in the recorded lien);

(M) Against whom criminal warrants have been issued for a criminal violation of this state’s tax laws; or

(N) Who have been convicted of a criminal violation of this state’s tax laws.

(m) Disclosure of return information to child support enforcement division. —

(1) State return information. — The Tax Commissioner may, upon written request, disclose to the child support enforcement division created by §48A-2-1 et seq. of this code:

(A) Available return information from the master files of the tax department relating to the Social Security account number, address, filing status, amounts, and nature of income and the number of dependents reported on any return filed by, or with respect to, any individual with respect to whom child support obligations are sought to be enforced; and

(B) Available state return information reflected on any state return filed by, or with respect to, any individual described in §11-10-5d(m)(1)(A) of this code relating to the amount of the individual’s gross income, but only if such information is not reasonably available from any other source.

(2) Restrictions on disclosure. — The Tax Commissioner shall disclose return information under §11-10-5d(m)(1) of this code only for purposes of, and to the extent necessary in, collecting child support obligations from and locating individuals owing such obligations.

(n) Disclosure of names and addresses for purposes of jury selection. — The Tax Commissioner shall, at the written request of a circuit court or the chief judge thereof, provide to the circuit court within 30 calendar days a list of the names and addresses of individuals residing in the county or counties comprising the circuit who have filed a state personal income tax return for the preceding tax year. The list provided shall set forth names and addresses only. The request shall be limited to counties within the jurisdiction of the requesting court.

The court, upon receiving the list or lists, shall direct the jury commission of the appropriate county to merge the names and addresses with other lists used in compiling a master list of residents of the county from which prospective jurors are to be chosen. Immediately after the master list is compiled, the jury commission shall cause the list provided by the Tax Commissioner and all copies thereof to be destroyed and shall certify to the circuit court and to the Tax Commissioner that the lists have been destroyed.

§11-10-5e. Service of notice.

Notwithstanding any other provision of this code, the Tax Commissioner may designate those assessments, notices, statements of account or other Tax Division documents which shall be sent by personal service or United States Postal Service regular mail, or certified mail or registered mail or by any other means at the discretion of the Tax Commissioner, pursuant to any provision of this chapter. Any service of notice addressed by United States Postal Service regular mail is presumed to be accepted upon mailing unless proven otherwise by the taxpayer. Any service of notice by certified mail shall be valid if accepted by the taxpayer or if addressed to and mailed to the taxpayer's usual place of business or usual place of abode or last known address and accepted by any officer, partner, employee, spouse or child of the taxpayer over the age of eighteen. Any notice addressed and mailed in the above manner and accepted by any person shall be presumed to be accepted by such person unless proven otherwise by the taxpayer.

§11-10-5f. Timely filing and paying.

(a) Delivery in person. -- If any return, claim, statement or other document required to be filed, or any payment required to be made within a prescribed period or on or before a prescribed date, is delivered in person on or before such date to the Tax Commissioner, or the appropriate division or officer of the tax department, at Charleston, West Virginia, during normal business hours of the tax department, is shall be timely filed: Provided, That the Tax Commissioner may authorize such delivery to be made to his agent at such other location or locations in this state, as he may from time to time prescribe.

(b) Timely mailing. -- If any return, claim, statement or other document, required to be filed, or any payment required to be made within a prescribed period or on or before a prescribed date under authority of this article or the provisions of any article of this chapter imposing any tax administered under this article, is, after such period or such date, delivered by United States mail to the Tax Commissioner or the state Tax Department, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document or payment is mailed shall be deemed to be the date of delivery or the date of payment, as the case may be, provided the following mailing requirements are met:

(1) The postmark date falls within the prescribed period or on or before the prescribed date for filing (including any extension granted for such filing) of the return, claim, statement or other document, or for making the payment (including any extension granted for such payment); and

(2) The return, claim, statement, other document or payment was, within the time prescribed in subparagraph (1), deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Tax Commissioner or the state Tax Department.

(c) Postmarks. -- This section shall apply in the case of postmarks not made by the United States postal service only if and to the extent provided by rules or regulations prescribed by the Tax Commissioner.

(d) Registered and certified mailing. -- For purposes of this section, if any return, claim, statement, or other document or payment is sent by United States registered or certified mail, the date of registration or certification shall be deemed the postmark date.

(e) Last date for filing or payment. -- The last date for timely filing or timely making payment shall include any extension of time authorized by law or regulation and any extension of time granted in writing by the Tax Commissioner.

§11-10-5g. Time for performance of acts where last day falls on Saturday, Sunday or legal holiday.

When the last day prescribed under authority of this article or any article of this chapter imposing any tax administered under this article for performing any act falls on Saturday, Sunday or a legal holiday, the performance of such act shall be considered timely if it is performed on the next succeeding day which is not a Saturday, Sunday or a legal holiday. For purposes of this section, the last day for the performance of any act shall be determined by including any authorized extension of time; and the term "legal holiday" means a legal holiday in this state.

§11-10-5h. Enforcement proceedings.

The enforcement of any of the collections provisions of this article in any of the courts of this state shall be under the exclusive jurisdiction of the Tax Commissioner. The Tax Commissioner may, at his request, be represented in any such collection civil action by the Attorney General, the prosecuting attorney of any county in which action is instituted or by any attorney permanently employed by the Tax Commissioner and designated by the Attorney General to be a special assistant Attorney General. In all other court proceedings on appeals of administrative decisions of the Tax Commissioner, the Tax Commissioner shall be represented by the Attorney General. Whenever a prosecuting attorney represents the Tax Commissioner in civil collection actions or the like, such prosecuting attorney shall receive no fees or compensation in addition to the salary paid by the county for such office for services rendered.

§11-10-5i. Enforcement powers.

Any employee of the state Tax Department, so designated by the Tax Commissioner, and who shall have attended a course of instruction at the State Police academy, or its equivalent, shall have all the lawful powers delegated to members of the department of public safety except the power to carry firearms to enforce the provisions of article nine of this chapter in any county or municipality of this state. Any such employee shall, before entering upon the discharge of his duties, execute a bond with security in the sum of $3,500, payable to the State of West Virginia, conditioned for the faithful performance of his duties, as such, and such bond shall be approved as to form by the Attorney General, and the same shall be filed with the Secretary of State and preserved in his office. The department of public safety, any county sheriff (or his deputy) or any municipal police officer, upon request by the Tax Commissioner, is hereby authorized to assist the Tax Commissioner in enforcing the provisions of article nine of this chapter and the criminal penalty provisions of this article or any article of this chapter administered under this article.

§11-10-5j. Liability for taxes withheld or collected.

Whenever any person is required by this article (or any article of this chapter administered by this article) to collect or withhold any tax from any person and to pay it over to the Tax Commissioner, the amount of tax so collected or withheld shall be deemed to be moneys held in trust for the State of West Virginia. The amount of such moneys shall be assessed, collected and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.

§11-10-5k. Fractional parts of a cent.

In the payment of any tax administered by this article, a fractional part of a cent shall be disregarded unless it amounts to one-half cent or more, in which case it shall be increased to 1¢.

§11-10-5l. Payment of estimated tax.

Payment of estimated tax or any installment thereof, shall be considered payment on account of the tax imposed by any article administered under this article for the taxable year.

§11-10-5m. Overpayment of installments.

In the case of tax payable in installments, if the taxpayer has paid, as an installment of the tax, more than the amount determined to be the correct amount of such installment, the overpayment shall be credited against the unpaid installments, if any for the taxable year. If the amount already paid, whether or not on the basis of installments, exceeds the amount determined to be the correct amount of the tax due for the taxable year, the overpayment shall be credited or refunded as provided in section fourteen of this chapter.

§11-10-5n. Payment by commercially acceptable means.

(a) Authority to receive.-- The Tax Commissioner may receive in payment for taxes or fees collected under this article (or in payment for excise tax stamps and tax crowns) any commercially acceptable means that the commissioner considers appropriate to the extent and under the conditions provided in rules proposed by the commissioner for legislative approval in accordance with article three, chapter twenty-nine-a of this code.

(b) Ultimate liability.-- If a check, money order or other method of payment, including payment by credit card, debit card or charge card received in payment of taxes or fees or tax stamps or crowns is not duly paid, or is paid and subsequently charged back to the Tax Commissioner, the person by whom the check, money order or other method of payment was tendered remains liable for payment of the tax or fee or for the tax stamps or crowns, and for all legal penalties and additions thereto, to the same extent as if the check, money order or other method of payment had not been tendered.

(c) Liability of bank and others.-- If any certified, treasurer's or cashier's check (or other guaranteed draft), any money order or any means of payment that has been guaranteed by a financial organization (such as a credit card, debit card or charge card transaction which has been guaranteed expressly by a financial organization), is received for payment of taxes or fees or tax stamps or crowns and is not duly paid, the State of West Virginia shall, in addition to its right to exact payment from the party originally indebted therefor, have a lien for:

(1) The amount of the check (or draft) upon all the assets of the financial institution on which it is drawn;

(2) The amount of the money order upon all the assets of the issuer thereof; or

(3) The guaranteed amount of any other transaction upon all assets of the institution making the guarantee; and the amount shall be paid out of the assets in preference to any other claims whatsoever against the financial institution, issuer or guaranteeing institution, except the necessary costs and expenses of administration and perfected liens that are prior in time.

(d) Charges and fees due to insufficient funds or nonpayment by financial institution.-- If any check, money order or any other commercially acceptable method of payment permitted under this article, its amendments and related rules, tendered in payment of any amount of tax or fee or tax stamps or crowns or any interest, additions to tax or penalties is not duly paid, then, in addition to any other penalties provided by law, there shall be paid as a penalty by the person who tendered the payment, regardless of its form, upon written notice and demand by the Tax Commissioner, in the same manner as tax, an amount equal to the service charge or fee which the bank or other financial institution charged the state for each payment returned or not duly paid to the Tax Commissioner because the account is closed, there are insufficient funds in the account, payment was stopped or payment was refused by the bank, financial institution or other entity, including the state or political subdivision thereof. Recovery of such charges and fees will apply to all methods of payment permitted under this section. The Tax Commissioner may propose rules necessary to carry out this subsection and to provide guidelines and requirements necessary to ensure uniform administrative practices statewide to effect the intent of this subsection, all in accordance with article three, chapter twenty-nine-a of this code: Provided, That for purposes of this subsection, the term "payment" includes any transaction performed at the request of the taxpayer, including claims for refund that result in a service charge or fee.

(e) Payment by other means.--

(1) Authority to prescribe rule.-- The Tax Commissioner shall propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, as the Tax Commissioner considers necessary to receive payment by commercially acceptable means, including rules that:

(A) Specify which methods of payment by commercially acceptable means are acceptable;

(B) Specify when payment by those means shall be considered received;

(C) Identify types of nontax matters related to payment by those means that are to be resolved by persons ultimately liable for payment and financial intermediaries, without the involvement of the Tax Commissioner; and

(D) Ensure that tax matters shall be resolved by the Tax Commissioner, without the involvement of financial intermediaries.

(2) Obtaining services.-- The Tax Commissioner shall use the State Treasurer's contracts and system for receiving payments by credit card, debit card, charge card or any other commercially acceptable means. The Tax Commissioner may not pay any fee or provide any other consideration in obtaining these services. The State Treasurer may not pay any fee or provide any consideration for receiving payments of taxes or fees (or in payment for excise tax stamps and tax crowns) described in this section by credit card, debit card, charge card or any other commercially acceptable means, and any cost for processing the payment shall be included, in advance, in the amount of the transaction and assessed to the party making the payment.

(3) Special provisions for use of credit cards.-- If use of credit cards is accepted as a method of payment of taxes pursuant to subsection (a) of this section:

(A) To the extent allowed under federal law, a payment of taxes or fees collected under this article (or in payment for excise tax stamps and tax crowns) by a person by use of a credit card shall not be subject to Section 161 of the Truth in Lending Act (15 U. S. C.§1666), or to any similar provisions of state law, if the error alleged by the person is an error relating to the underlying tax liability, rather than an error relating to the credit card account such as a computational error or numerical transposition in the credit card transaction or an issue as to whether the person authorized payment by use of the credit card;

(B) To the extent allowed under federal law, a payment of taxes or fees collected under this article (or in payment for excise tax stamps and tax crowns) shall not be subject to Section 170 of the Truth in Lending Act (15 U. S. C.1666i), or to any similar provisions of state law;

(C) To the extent allowed under federal law, a payment of taxes or fees collected under this article (or in payment for excise tax stamps and tax crowns) by a person by use of a debit card shall not be subject to Section 908 of the Electronic Fund Transfer Act (15 U. S. C.1693f), or to any similar provisions of state law, if the error alleged by the person is an error relating to the underlying tax liability, rather than an error relating to the debit card account such as a computational error or numerical transposition in the debit card transaction or an issue as to whether the person authorized payment by use of the debit card;

(D) To the extent allowed under federal law, the term "creditor" under Section 103(f) of the Truth in Lending Act (15 U. S. C.§1602(f)) shall not include the Tax Commissioner with respect to credit card transactions in payment of taxes or fees collected under this article (or in payment for excise tax stamps and tax crowns); and

(E) Notwithstanding any other provisions of law to the contrary, in the case of payment made by credit card or debit card transaction of an amount owed to a person as the result of the correction of an error under Section 161 of the Truth in Lending Act (15 U. S. C.§1666) or Section 908 of the Electronic Fund Transfer Act (15 U. S. C.§1693f), the Tax Commissioner is authorized to provide such amount to such person as a credit to that person's credit card or debit card account through the applicable credit card or debit card system.

(f) Confidentiality of information.--

(1) In general.-- Except as otherwise authorized by this subsection, no person may use or disclose any information relating to credit card, debit card or charge card transactions other than for purposes directly related to the processing of the transactions or the billing or collection of amounts charged or debited pursuant thereto.

(2) Exceptions.--

(A) Credit card, debit card or charge card issuers or others acting on behalf of the issuers may also use and disclose the information for purposes directly related to servicing an issuer's accounts.

(B) Credit card, debit card or charge card issuers or others directly involved in the processing of credit card, debit card or charge card transactions or the billing or collection of amounts charged or debited to the credit card, debit card or charge card, may also use and disclose the information for purposes directly related to:

(I) Statistical risk and profitability assessment;

(ii) Transferring receivables, accounts or interest therein;

(iii) Auditing the account information;

(iv) Complying with federal, state or local law; and

(v) Properly authorized civil, criminal or regulatory investigation by federal, state or local authorities.

(3) Procedures.-- Use and disclosure of information under this paragraph shall be made only to the extent authorized by written procedures promulgated by the Tax Commissioner.

§11-10-5o. Notice of fiduciary relationship.

(a) Rights and obligations of fiduciary. -- Upon notice to the Tax Commissioner that any person is acting for another person in a fiduciary capacity, such fiduciary shall assume that power, rights, duties and privileges of such other person in respect of any tax administered under this article (except that the tax shall be collected from the estate of such other person), until notice is given that the fiduciary capacity has terminated.

(b) Notice. -- Notice under this section shall be given in accordance with regulations prescribed by the Tax Commissioner.

§11-10-5p. Effective date of amendments.

Any amendment to any article administered under this article shall first apply to a particular taxpayer for taxable years beginning on or after the effective date of the act of the Legislature containing such amendment, as determined under article six, section thirty of the Constitution of this state, unless the language of the act provides a controlling internal effective date provision.

§11-10-5q. Settlement agreements and compromises.

(a) Closing agreements authorized. -- The Tax Commissioner is authorized to enter into an agreement in writing with any person relating to the liability of such person (or of the person or estate for whom he acts) in respect of any tax administered by the Tax Commissioner under this article, for any taxable period.

(b) Finality of closing agreement. -- If a closing agreement is entered into by the Tax Commissioner, (within such time as may be stated in such agreement, or later agreed to) such agreement shall be final and conclusive, and except upon a showing of fraud or malfeasance or misrepresentation of a material fact:

(1) The matters so agreed upon shall not be reopened, or the agreement modified by any officer, employee or agent of this state; and

(2) In any civil action or administrative proceeding, the closing agreement or any determination, assessment, collection, payment, abatement, refund or credit made in accordance therewith, shall not be annulled, modified, set aside or disregarded.

(c) Compromises authorized. -- The Tax Commissioner may compromise all or part of any civil case arising under the provisions of this article. In all such matters involving issues in respect of tax liability in controversy of $15,000 or more for one or all of the years involved in such matter, claim or case, the Tax Commissioner shall seek the written recommendation of the Attorney General before entering into such compromise. Any liability for tax (including any interest, additions to tax and penalties) may be compromised upon one or more, or both, of the following grounds:

(1) Doubt as to liability; or

(2) Doubt as to collectibility.

(d) Record of compromise. -- Whenever a compromise is made by the Tax Commissioner under subsection (c), there shall be placed on file in the Tax Commissioner's office the opinion of the Tax Commissioner's legal counsel (with his reasons therefor) and any written recommendation of the Attorney General received pursuant to subsection (c) above together with a statement of:

(1) The amount of tax assessed,

(2) The amount of interest, additions to the tax, or assessable penalty imposed by law on the person against whom the tax is assessed, and

(3) The amount actually paid in accordance with the terms of compromise.

Notwithstanding the foregoing provisions of this subsection (d), no such opinion shall be required with respect to the compromise of any civil case in which the amount of tax assessed (including any interest, additions to tax or assessable penalty) is less than $1,000.

(e) Report to Legislature. -- The Tax Commissioner shall submit to the Speaker of the House of Delegates, the President of the Senate and the Legislative Auditor a quarterly report summarizing the issues and amounts of liabilities contained in the agreements and compromises into which he has entered pursuant to this section. Such report shall be in a form which preserves the confidentiality of the identity of the taxpayers involved in such agreements and compromises. Notwithstanding any other provision of law to the contrary, the agreements and compromises entered into pursuant to this section shall be subject to audit, in their entirety, by the Legislative Auditor.

§11-10-5r. Technical assistance advisories.

(a) The Tax Commissioner may issue an informal technical assistance advisory to a person, upon written request, as to the position of his office on the tax consequences of a stated transaction or event, under existing statutes, rules or policies. However, after the issuance of an assessment to a taxpayer, a technical assistance advisory may not be issued to that taxpayer with respect to the issue or issues involved in the assessment.

(b) A technical assistance advisory shall have no precedential value except to the taxpayer who requests the advisory and then only for the specific transaction addressed in the technical assistance advisory, unless specifically stated otherwise in the advisory.

(c) Any modification of an advisory shall be prospective only.

(d) The Tax Commissioner may, in his discretion, promulgate rules prescribing guidelines and procedures for submission, issuance or denial of assistance, and disclosure of technical assistance advisory: Provided, That the Tax Commissioner shall not disclose a technical assistance advisory to any person other than the person who requested the advisory, or his authorized representative, without first deleting the name, address and other identifying details of the person to whom the technical assistance advisory was issued, unless that person executes a written waiver of confidentiality.

(e) The Tax Commissioner shall release copies of technical assistance advisories issued pursuant to this section to the public. Any identifying characteristics or facts about the taxpayer shall be omitted or modified in such technical assistance advisories to such an extent so as to not disclose the name or identity of the taxpayer.

§11-10-5s. Disclosure of certain taxpayer information.

(a) Purpose. — The Legislature hereby recognizes the importance of confidentiality of taxpayer information as a protection of taxpayers’ privacy rights and to enhance voluntary compliance with the tax law. The Legislature also recognizes the citizens’ right to accountable and efficient state government. To accomplish these ends, the Legislature hereby creates certain exceptions to the general principle of confidentiality of taxpayer information.

(b) Exceptions to confidentiality. —

(1) Notwithstanding any provision in this code to the contrary, the Tax Commissioner shall publish in the State Register the name and address of every taxpayer and the amount, by category, of any credit asserted on a tax return under articles thirteen-c, thirteen-d, thirteen-e, thirteen-f, thirteen-g, thirteen-q, thirteen-r and thirteen-s of this chapter and article one, chapter five-e of this code. The categories by dollar amount of credit received are as follows:

(A) More than $1 but not more than $50,000;

(B) More than $50,000 but not more than $100,000;

(C) More than $100,000 but not more than $250,000;

(D) More than $250,000 but not more than $500,000;

(E) More than $500,000 but not more than $1 million; and

(F) More than $1 million.

(2) Notwithstanding any provision in this code to the contrary, the Tax Commissioner shall publish in the State Register the following information regarding a compromise of a pending civil tax case that occurs on or after the effective date of this section in which the Tax Commissioner is required to seek the written recommendation of the Attorney General and the Attorney General has not recommended acceptance of the compromise or when the Tax Commissioner compromises a civil tax case for an amount that is more than $250,000 less than the assessment of tax owed made by the Tax Commissioner:

(A) The names and addresses of taxpayers that are parties to the compromise;

(B) A summary of the compromise;

(C) Any written advice or recommendation rendered by the Attorney General regarding the compromise; and

(D) Any written advice or recommendation rendered by the Tax Commissioner’s staff.

Under no circumstances may the tax return of the taxpayer or any other information which would otherwise be confidential under other provisions of law be disclosed pursuant to the provisions of this subsection.

(3) Notwithstanding any provision in this code to the contrary, the Tax Commissioner may disclose any relevant return information to the prosecuting attorney for the county in which venue lies for a criminal tax offense when there is reasonable cause, based upon and substantiated by the return information, to believe that a criminal tax law has been or is being violated.

(4) Notwithstanding any provision in this code to the contrary, the Tax Commissioner may enter into written exchange of information agreements with the commissioners of Labor, Employment Security, Alcohol Beverage Control and Workers’ Compensation to disclose and receive timely return information. The Tax Commissioner may promulgate rules pursuant to chapter twenty-nine-a of this code regarding additional agencies with which written exchange of information agreements may be sought but may not promulgate emergency rules regarding these additional agencies. The agreements shall be published in the State Register and are only for the purpose of facilitating premium collection, tax collection and facilitating licensure requirements directly enforced, administered or collected by the respective agencies. The provisions of this subsection do not preclude or limit disclosure of tax information authorized by other provisions of this code. Confidential return information so disclosed remains confidential in the other agency to the extent provided by section five-d of this article and by other applicable federal or state laws.

(5) Notwithstanding any provision of this code to the contrary, the Tax Commissioner may enter into a written agreement with the State Treasurer to disclose to the State Treasurer the following business registration information:

(A) The names, addresses and federal employer identification numbers of businesses which have registered to do business in West Virginia; and

(B) The type of business activity and organization of those businesses.

Disclosure of this information shall begin as soon as practicable after the effective date of this subsection and may be used only for the purpose of recovery and disposition of unclaimed property in accordance with the provisions of article eight, chapter thirty-six of this code. The provisions of this subsection do not preclude or limit disclosure of tax information authorized by other provisions of this code. Confidential return information disclosed hereunder or thereunder remains confidential as provided by section five-d of this article and by other applicable federal or state laws.

(6) Notwithstanding any provision of this code to the contrary, the Tax Commissioner may disclose to the Attorney General any tax return, report, declaration or tax return information, including the identity of a taxpayer, that relates to any taxpayer’s sales of tobacco products subject to state excise tax or to such sales of tobacco products that were manufactured or imported by a nonparticipating manufacturer as defined in section two, article nine-d of chapter sixteen of this code, for the purpose of enforcement of articles nine-b and nine-d, chapter sixteen of this code, or for the purpose of representing the State of West Virginia in any arbitration or litigation arising under the Tobacco Master Settlement Agreement or articles nine-b and nine-d, chapter sixteen of this code. Nothing herein shall authorize the disclosure of any taxpayer’s income tax returns or business franchise tax returns, or authorize the use of the disclosed information for any purpose other than as specified herein.

(7) Notwithstanding any provision of this code to the contrary, the Attorney General, upon the consent of the Tax Commissioner, may disclose information provided by the Tax Commissioner under the authority of subdivision six of this subsection as follows:

(A) To a party or parties participating in arbitration or litigation arising under the terms of the Tobacco Master Settlement Agreement; or

(B) To a judge, arbitrator, administrative law judge, legal counsel or other officer, official or participant in proceedings for or relating to administration, implementation, enforcement, defense or settlement and arbitration of the provisions of articles nine-b and nine-d, chapter sixteen of this code.

(C) Notwithstanding any provision of this code to the contrary, the Attorney General may introduce into evidence or disclose the information in the arbitration or litigation proceedings or an action for administration, implementation, enforcement, defense or settlement and arbitration of the provisions of articles nine-b and nine-d, chapter sixteen of this code.

(D) This subdivision does not apply to a document, tax return or other information subject to disclosure restrictions imposed by federal statute or regulation.

(E) No disclosure may be made pursuant to this subdivision unless it is subject to a protective order or agreement restricting the use of the disclosed information to the proceeding, arbitration or litigation;

(8) Notwithstanding any provision of this code to the contrary, the Tax Commissioner may enter into a written exchange agreement with the Auditor to disclose certain taxpayer information to facilitate participation in the following:

(A) The federal offset program authorized by section thirty-seven, article one, chapter fourteen of this code; and

(B) The state offset program, as authorized by subsection (h), section thirty-seven, article one, chapter fourteen of this code, for the purpose of protecting return information as defined in section five-d, article ten of this chapter and collecting debts, fees and penalties due the state, its departments, agencies or institutions.

(C) The taxpayer information exchanged or disclosed pursuant to this subdivision is to be used only for the purpose of facilitating the collection of unpaid and delinquent tax liabilities through offset against state payments due and owing to taxpayers, vendors and contractors providing goods or services to the state, its departments, agencies or institutions.

(D) The Tax Commissioner may disclose the following taxpayer information:

(i) Name;

(ii) Address;

(iii) Social Security number or tax identification number;

(iv) Amount of the tax liability; and

(v) Any other information required by the written agreement.

(E) Disclosure of this information begins as soon as practicable after the effective date of this subdivision.

(F) The provisions of this section do not preclude or limit disclosure of tax information authorized by other provisions of this code. Any confidential return information disclosed hereunder or thereunder remains confidential to the extent provided by section five-d of this article and by other applicable federal or state laws.

(c) Tax expenditure reports. — Beginning on January 15, 1992, and every January 15 thereafter, the Governor shall submit to the President of the Senate and the Speaker of the House of Delegates a tax expenditure report. This report shall expressly identify all tax expenditures. Within three-year cycles, the reports shall be considered together to analyze all tax expenditures by describing the annual revenue loss and benefits of the tax expenditure based upon information available to the Tax Commissioner. For purposes of this section, the term “tax expenditure” means a provision in the tax laws administered under this article including, but not limited to, exclusions, deductions, tax preferences, credits and deferrals designed to encourage certain kinds of activities or to aid taxpayers in special circumstances. The Tax Commissioner shall promulgate rules setting forth the procedure by which he or she will compile the reports and setting forth a priority for the order in which the reports will be compiled according to type of tax expenditure.

(d) Federal and state return information confidential. — Notwithstanding any other provisions of this section or of this code, no return information made available to the Tax Commissioner by the Internal Revenue Service or department or agency of any other state may be disclosed to another person in a manner inconsistent with the provisions of Section 6103 of the Internal Revenue Code of 1986, as amended, or of the other states’ confidentiality laws.

§11-10-5t. Payment by electronic fund transfers.

(a) The term "electronic funds transfer" means and includes automated clearinghouse debit, automated clearinghouse credit, wire transfer, and any other means recognized by the Tax Commissioner for payment of taxes.

(b) The Tax Commissioner may prescribe by emergency rules, administrative notices, forms and instructions, and the procedures and criteria to be followed by certain taxpayers in order to pay taxes by electronic funds transfer methods.

(c) The rules shall set forth the following:

(1) Acceptable indicia of timely payment;

(2) Which type of electronic filing method or methods a particular type of taxpayer may or may not use;

(3) Which types of taxes to which electronic filing requirements apply for any given tax year and implementation dates: Provided, That the type of tax to which electronic funds transfer requirements apply during the first tax year is personal income tax withholding by employers;

(4) The dollar amount of tax liability per year which, when exceeded, requires or permits electronic funds transfer. Unless and until a legislative rule is promulgated or this section is amended, no person may be required to pay any tax by electronic funds transfer if the amount owed for the tax during the preceding year was less than $120,000: Provided, That for tax years beginning on or after January 1, 2019, no person may be required to pay any tax by electronic funds transfer if the amount owed for the tax during the preceding tax year was less than  $50,000;

(5) What, if any, exceptions are allowable, and alternative methods of payment to be used for any exceptions;

(6) Procedures for making voluntary electronic funds transfer payments;

(7) Any provisions needed to implement the civil penalty created by this section; and

(8) Any other provisions necessary to ensure the timely implementation of electronic funds transfer payments.

(d) In addition to any other additions and penalties which may be applicable, there is a civil penalty for failing or refusing to use an appropriate electronic funds transfer method when required to do so. The amount of this penalty is three percent of the total tax liability which is or was to be paid by electronic funds transfer for any tax for which electronic funds transfer methods are required to be used by the taxpayer.

(e) The provisions of this section are not intended to affect the provisions of other sections of this chapter concerning filing of returns or any other provisions which are not in direct conflict with this section.

(f) The State Treasurer shall adopt any procedures or rules necessary or convenient for implementing electronic funds transfers of tax payments authorized by this section and rules adopted by the Tax Commissioner. The Treasurer shall draft any procedures and rules adopted in consultation with the Tax Commissioner and the procedures and rules may not conflict with this section or rules adopted by the Tax Commissioner.

(g) The provisions of this section become effective on or after January 1, 1998.

§11-10-5u. Disclosure of persons making retail sales of tobacco products.

Notwithstanding any provision of this article to the contrary, the Tax Commissioner shall, at least semiannually, provide to the commissioner of the West Virginia alcohol beverage control administration, the superintendent of the West Virginia state police and the Secretary of the Department of Health by April 1 and October of each year, a list of the names and business locations of each person who indicates on a new application for a business registration certificate or on a current application for renewal of a business registration certificate that the person sells or intends to sell cigarettes or other tobacco products to consumers: Provided, That when available, the Tax Commissioner will provide the name of the business owner, county of location, and the business description code: Provided, however, That the Tax Commissioner may also file a copy of the list provided to the commissioner of the West Virginia alcohol beverage control administration, the superintendent of the West Virginia state police and the Secretary of the Department of Health in the state register maintained by the Secretary of State, who shall make the list available for inspection and copying: Provided further, That the results of the inspections of retail establishments which sell tobacco products may be reported to the federal government by the commissioner of the West Virginia alcohol beverage control administration.

§11-10-5v. Disclosure of tax information to the treasurer for return, recovery and disposition of unclaimed and abandoned property.

(a) Notwithstanding any provision of this code to the contrary, if the information resides in Tax Division databases, the Tax Commissioner shall disclose to the state Treasurer the name, last known address and social security number, or federal employer identification number, as applicable, of persons or businesses, including joint or combined filers, to which tax refund checks have been issued by this state, which checks have gone unclaimed or uncashed for a period of more than six months after the issuance date of the check. Notwithstanding any provision of this code to the contrary, if the information is included in a Tax Division database, the Tax Commissioner shall disclose to the state Treasurer the date, check number, warrant number, transaction identification number, invoice number, and amount of any such unclaimed or uncashed refund check, and the Tax Commissioner's confirmation or denial of confirmation, as applicable, that the tax refund is currently due and payable to the payee or payees to whom the unclaimed or uncashed check was originally issued.

(b) Disclosure of this information shall begin as soon as practicable after the effective date of this section on such schedule and under such arrangements as the treasurer and the Tax Commissioner may agree. Information so disclosed shall be used by the treasurer only for the purpose of administering and implementing the return, recovery and disposition of abandoned or unclaimed property in accordance with the provisions of article eight, chapter thirty-six of this code.

(c) The treasurer as administrator for unclaimed property shall treat information obtained in accordance with this section as records of abandoned property in accordance with article eight, chapter thirty-six of this code, and shall use the information to facilitate locating owners of unclaimed tax refunds. Notwithstanding any provision of this code to the contrary, the treasurer may disclose any or all of the information to an owner, his or her personal representative, next of kin, attorney at law or a person entitled to inherit from the owner.

(d) Of the information received by the treasurer under this section, only the name, city and state of the last known address of the payee or payees to whom the unclaimed or uncashed check was originally issued may be published by the treasurer, and only for the purpose of returning, recovering or disposing of unclaimed tax refunds. Tax information disclosed pursuant to this section to the treasurer shall remain confidential as provided by section five-d of this article, except to the extent disclosure is allowed under this section. The provisions of this section may not be construed to preclude or limit disclosure of tax information authorized by other provisions of this code.

§11-10-5w. Confidentiality and disclosure of information set forth in the oil and gas combined reporting form specified in subsection (d), section three-a, article thirteen-a of this chapter to county assessors, the Department of Environmental Protection and to the Public Service Commission; offenses; penalties.

(a) Confidentiality of certain information reported on the oil and gas combined reporting form, exception. -- The following information provided by or on behalf of any person or entity on the oil and gas combined reporting form specified in subsection (d), section three-a, article thirteen-a of this chapter is confidential:

(1) The natural resources account number (NRA);

(2) Total gross revenue for oil or gas or both;

(3) Working interest revenue for oil or gas or both;

(4) The name and address of the owner of a working interest or override royalty interest in the well;

(5) The ownership interest held by the owner of a working interest or override royalty interest in the well, expressed as a percentage or decimal equivalent, of total ownership of each listed owner; and

(6) The income of any owner.

Such information is exempt from disclosure under section four, article one, chapter twenty-nine-b of this code, and shall be kept, held and maintained as confidential except to the extent the information is disclosable under subsections (b) and (c) of this section.

(b) Disclosure to county assessors, Department of Environmental Protection and Public Service Commission authorized. -- Notwithstanding the provisions of section five-d, article ten of this chapter to the contrary, and notwithstanding any other provision of this code to the contrary, the Tax Commissioner may disclose the oil and gas combined reporting form specified in subsection (d), section three-a, article thirteen-a of this chapter, and information set forth thereon to county assessors, the Department of Environmental Protection and the Public Service Commission for the purpose of administering and implementing the assessment, administrative, oversight and regulatory functions and responsibilities with which they are charged by law.

(c) Release and publication of information. -–

(1) Statistical and aggregate information. -- This section shall not be construed to prohibit the publication or release of summary statistical information derived from the oil and gas combined reporting form, including summary statistical information derived from the items specified in subsection (a) of this section. Publication or release of such summary statistical information is authorized in the form of aggregated statistics, maps, articles, reports or professional talks, or in other forms, provided it is presented in accordance with generally accepted practices and in a manner so as to preclude the identification of particular oil and gas combined report filers and to preclude derivation or determination of information specified in subsection (a) of this section about particular oil and gas combined report filers.

(2) Release and publication of certain information. -- Notwithstanding the provisions of this section to the contrary and notwithstanding any other provision of this code to the contrary, the Tax Commissioner, county assessors, the Department of Environmental Protection, and the Public Service Commission may publish or publicly release information provided by or on behalf of any person or entity in the oil and gas combined reporting form except for the information specified as confidential in subsection (a) of this section.

(d) Penalty of unlawful disclosure. -- Any state, county or governmental subdivision employee or representative (including, but not limited to, any county assessor or any employee or representative of the West Virginia Department of Environmental Protection or the West Virginia Public Service Commission), who violates this section by making an unlawful or unauthorized disclosure of confidential information that is reported on the oil and gas combined reporting form 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, and shall be assessed the cost of prosecution. As used in this section, the term "state, county or governmental subdivision employee or representative" includes, but is not limited to, any current or former state, county or municipal employee, officer, or commission or board member, and any state, county or municipal agency, institution, organization, contractor or subcontractor and any principal, officer, agent or employee thereof.

(e) Effective July 1, 2006, this section shall have no force or effect.

§11-10-5x. Waiver of derivative tax, interest and penalty imposed on board members or directors of charitable and tax exempt organizations imposed on innocent governing board resulting from defaults or delinquencies of the organization.

(a) Notwithstanding any provision of this code to the contrary, the Tax Commissioner may waive imposition of derivative tax liabilities and associated interest and penalties on one or more uncompensated members of the governing board or of the board of directors on an organization qualified and classified as a tax exempt organization under section 501(c) (3) or section 501(c) (4) of the Internal Revenue Code of 1986, as amended.

(b)(1) For purposes of this section, the term "derivative liabilities" means liabilities of the tax exempt organization for any tax administered under this article, including, but not limited to, employee personal income tax withholding trust fund tax remittance liabilities and consumers sales and service tax trust fund tax remittance liabilities, that are attributed by law to one or more members of the governing board or board of directors of the tax exempt organization so as to become personal liabilities of that member or members.

(2) For purposes of this section a member is uncompensated if the member is not paid or otherwise remunerated directly or indirectly:

(A) For service on the governing board or board of directors;

(B) For any other service rendered to the tax exempt organization;

(C) For service to any entity affiliated with the tax exempt organization; or

(D) For any sale of real or tangible personal property or intangible personal property during the preceding calendar year to the tax exempt organization or to any person, entity or organization affiliated with the tax exempt organization.

(3) Reimbursement of actual expenses incurred to carry out the duties and responsibilities of board membership shall not be treated as compensation.

(4) Compensation paid to a person or organization having a relationship to the member that is specified in section 267(b) of the Internal Revenue Code of 1986, as amended, constitutes compensation to the member for purposes of this section.

(c) The Tax Commissioner may only issue the waiver authorized by this section if the Tax Commissioner determines that:

(1) The board member or members were mislead, defrauded or deceived as to the accrual or existence of unpaid tax liabilities owed by the tax exempt organization, and had no reason to know of the accrual or existence of the liabilities owed;

(2) The board member or members took no active role in the day-to-day management of the tax exempt organization and the tax liability resulted from a computational or clerical error or good faith reliance on erroneous professional advice which the member or members could not have reasonably discovered through the exercise of due diligence; or

(3) The board member or members reasonably believed that the tax had been paid or accumulated for payment and the amounts believed to have been so paid or accumulated were in fact lost, stolen, destroyed or otherwise rendered irretrievable, without the acquiescence or consent of the member or members.

(d) The petition for a waiver under this section shall be made in writing and filed with the Tax Commissioner in that form and pursuant to those procedures as the Tax Commissioner may prescribe.

(e) Any controversy arising pursuant to this section shall be resolved through an appeal to the office of tax appeals in accordance with the provisions of article ten-a of this chapter. The issuance of a waiver under this section is within the discretion of the Tax Commissioner and the Tax Commissioner's determination shall not be overturned absent a showing of abuse of discretion.

(f) This section shall not be interpreted as restricting the authority of the Tax Commissioner to otherwise compromise, assess, correct, adjust or reassess any amount of tax, interest or penalty determined to be due under this article.

§11-10-5y. Disclosure of return information to Consolidated Public Retirement Board.

(a) The Tax Commissioner shall, upon written request, disclose to designated employees authorized by the Consolidated Public Retirement Board created by article ten-d, chapter five of this code:

(1) Available return information from the master files of the Tax Division relating to the social security account number, address, filing status, marital status, amounts, nature and source of income and the number of dependents reported on any return filed by, or with respect to, any individual receiving a disability annuity; and

(2) Available state return information reflected on any state return filed by, or with respect to, any individual described in this subsection relating to the amount of and sources of the individual's gross income.

(b) The Tax Commissioner shall disclose return information under this section only for purposes of assisting the Consolidated Public Retirement Board in its efforts to ascertain whether individuals receiving disability retirement benefits under any of the retirement systems which it administers continue to be eligible to receive their disability retirement benefits.

(c) The Consolidated Public Retirement Board and its employees shall maintain the confidentiality of information received under this section, except that the information may be disclosed during an administrative process, hearing or appeal, or other action relating to whether an individual receiving disability retirement benefits under any of the retirement systems which the board administers continues to be eligible to receive his or her disability retirement benefits.

(d) The provisions of subsection (c), section five-d of this article are applicable to all employees, officers and agents of the Consolidated Public Retirement Board who disclose information received pursuant to this section that is otherwise confidential under any provision of this code for purposes other than those specified in this section.

§11-10-5z. Electronic filing for certain persons.

(a) (1) For tax years beginning on or after January 1, 2009, any person required to file a return for a tax administered under the provisions of this article and who had total annual remittance for any single tax equal to or greater than $100,000 during the immediately preceding taxable year shall file electronically all returns for all taxes administered under this article.

(2) For tax years beginning on or after January 1, 2011, any person required to file a return for a tax administered under the provisions of this article and who had total annual remittance for any single tax equal to or greater than $10,000 during the immediately preceding tax year shall file electronically all returns for all taxes administered under this article.

(3) For tax years beginning on or after January 1, 2015:

(i) For returns that are required to be filed prior to January 1, 2016, any person required to file a return for a tax administered under the provisions of this article and who had total annual remittance for any single tax equal to or greater than $10,000 during the immediately preceding tax year shall file electronically all such returns for all taxes administered under this article.

(ii) For returns that are required to be filed on or after January 1, 2016, any person required to file a return for a tax administered under the provisions of this article and who had total annual remittance for any single tax equal to or greater than $25,000 during the immediately preceding tax year shall file electronically all returns for all taxes administered under this article.

(iii) For returns that are required to be filed on or after January 1, 2019, any person required to file a return for a tax administered under the provisions of this article and who had total annual remittance for any single tax equal to or greater than $50,000 during the immediately preceding tax year shall file electronically all returns for taxes administered under this article.

(b) The Tax Commissioner shall implement the provisions of this section using any combination of notices, forms, instructions, and rules that he or she determines necessary. All rules shall be promulgated pursuant to §29A-3-1 et seq. of this code.

§11-10-5aa. Confidentiality of information obtained during telecommunications tax study.

(a) Section nineteen, article thirteen-b of this chapter was enacted in 2010, and required the Tax Commissioner to study the business of telecommunications service and related businesses. The Tax Commissioner completed the study and reported to the Legislature July 1, 2011. Notwithstanding the repeal of section nineteen, article thirteen-b of this chapter in 2012, the provisions of that section under which information obtained by the Tax Commissioner during the study of the business of telecommunications service and related businesses conducted pursuant to that statute is confidential and exempt from disclosure shall remain in full force and effect, as if fully set forth herein and as more fully set forth herein:

(1) Financial information and other data disclosed to the Tax Commissioner under the provisions of that 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 that 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". 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 that 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.

(b) Any rules promulgated by the Tax Commissioner to implement the provisions of that section relating to confidentiality or exemptions under that section shall remain in full force and effect until amended or repealed pursuant to article three, chapter twenty-nine-a of this code.

§11-10-5bb. Applying lottery prizes to tax liabilities.

(a) Offsetting lottery prizes against tax liabilities. – Upon notification by the State Tax Department that a person who is entitled to all or part of a lottery prize is delinquent in the payment of any of the taxes administered under chapter eleven, article ten of this code, the Lottery Director shall forward to the State Tax Department the prize or portion thereof to be distributed directly from the State Lottery Office, and such amount shall be applied to pay the tax liabilities of the prize winner: Provided, That such distribution shall be subject to the limitations on collection provided in section sixteen of this article.

(b) Administration. - (1) The Tax Commissioner shall enter into a written agreement with the Lottery Director for the purpose of establishing a procedure for the collection of prizes as set forth in subsection (a) of this section. The director shall include in the agreement a method by which Lottery Director will provide the names of lottery winners as expeditiously as possible.

(2) Notwithstanding any provision in this code to the contrary, the Tax Commissioner may disclose tax information to the Lottery Director for the purpose of administering the collection procedure authorized in subsection (a) of this section, and the Tax Commissioner and Lottery Director may enter into a written agreement allowing and providing for the disclosure of tax information for the purpose of administering the collection procedure authorized in subsection (a) of this section.

(c) Effective date. - The provisions of this section shall apply to all tax years beginning after December 31, 2013.

§11-10-5cc. Disclosure of certain tax information to Commissioner of Highways.

(a) Notwithstanding any provision of this article to the contrary, the Tax Commissioner shall enter into a written agreement with the Commissioner of Highways of this state to disclose to designated employees of the Division of Highways:

(1) Whether a bidder for a contract with the Division of Highways has a current business registration certificate under article twelve of this chapter;

(2) Whether a contractor with the Division of Highways, or any subcontractor of that contractor, has had its current business registration certificate revoked or suspended under article twelve of this chapter;

(3) Whether a cease and desist order has been issued under article twelve of this chapter to a contractor working on a project for the Division of Highways or a subcontractor of that contractor working on a road construction or repair project;

(4) Whether a contractor bidding on a contract for a road construction project or repair project appears to be in compliance with the employer withholding tax requirements of this state as set forth in article twenty-one of this chapter based on information in Tax Division databases;

(5) Whether a contractor who has a contract with the Division of Highways for a road construction project or repair project appears to be in compliance with the employer withholding tax requirements of this state as set forth in article twenty-one of this chapter based on information in Tax Division databases;

(6) Whether a subcontractor of any contractor who has a contract with the Division of Highways for a road construction project or repair project appears to be in compliance with the employer withholding tax requirements of this state as set forth in article twenty-one of this chapter based on information in Tax Division databases;

(7) Whether a bidder for a highway construction contract is in good standing with the Tax Commissioner;

(8) Whether a contractor or subcontractor working on a project for the Division of Highways is in good standing with the Tax Commissioner and, if not in good standing, an explanation of why the contractor or subcontractor is not in good standing; and

(9) Whether a bidder, contractor or subcontractor currently has pending before the Office of Tax Appeals a contest concerning any assessment for additional tax or denial of a claim for refund or credit.

(b) For purposes of this section, the term “good standing” means that the bidder, contractor or subcontractor has: (1) Filed all required tax returns due for taxes administered under this article; (2) paid all taxes shown to be due in the filed returns, including any interest and additions to tax; and (3) paid all withholding taxes for employees of the bidder, contractor or subcontractor required to be paid under this code.

(c) An agreement executed under subsection (a) of this section may be amended, from time to time, by the Tax Commissioner and the Commissioner of Highways.

(d) Information in the hands of the Commissioner of Highways or his or her designees pursuant to an agreement under this section shall enjoy the same level of confidentiality and protection as the information would enjoy in the hands of the Tax Commissioner.

§11-10-6. Mathematical or clerical errors; collection of balance due on return without remittance.

(a) Mathematical or clerical error. -- When it appears to the Tax Commissioner that the taxpayer has made a mathematical error (including an overstatement of the credit for the amount paid as estimated tax), or clerical error, the Tax Commissioner shall correct such error and notify the taxpayer, in writing, of the deficiency or overpayment in tax. The taxpayer shall have fifteen days after receipt of such notice within which to pay any such deficiency. If the taxpayer fails to pay such deficiency within fifteen days, the Tax Commissioner shall make an assessment of such deficiency in accordance with section seven and shall give the taxpayer written notice thereof.

(b) Collection of balance due. -- If a taxpayer files a mathematically correct return which reflects a balance due of any tax administered under this article, and if full payment thereof has not been made, the Tax Commissioner shall notify the taxpayer, in writing, of the amount of tax, additions to tax, penalties or interest due. The taxpayer shall have fifteen days after receipt of such notice within which to make payment. If the taxpayer fails to make payment within such fifteen-day period, the Tax Commissioner shall proceed under section eleven of this article to collect the amount due.

(c) Certain terms defined. -- For the purposes of this section:

(1) Mathematical or clerical error. -- The term "mathematical or clerical error" means:

(A) An error in addition, subtraction, multiplication or division shown on any return;

(B) An incorrect use of any table provided by the Tax Commissioner with respect to any return if such incorrect use is apparent from the existence of other information on the return;

(C) An entry on a return of an item which is inconsistent with another entry of the same or another item on such return;

(D) An omission of information which is required to be supplied on the return to substantiate an entry on the return; and

(E) An entry on a return of a deduction or credit in an amount which exceeds a statutory limit, if such limit is expressed:

(i) As a specified monetary amount, or

(ii) As a percentage, ratio, or fraction, and if the items entering into the application of such limit appear on such return.

(2) Return. -- The term "return" includes any return, statement, schedule, or list, and any amendment or supplement thereto filed with respect to any tax administered under this article.

§11-10-7. Assessment.

(a) General. — If the Tax Commissioner believes that any tax administered under this article has been insufficiently returned by a taxpayer, either because the taxpayer has failed to properly remit the tax or fee, or has failed to make a return, or has made a return which is incomplete, deficient, or otherwise erroneous, he or she may proceed to investigate and determine or estimate the tax liability and make an assessment therefor.

(b) Jeopardy assessments. — If the Tax Commissioner believes that the collection of any tax administered under this article will be jeopardized by delay, he or she shall thereupon make an assessment of tax, noting that fact upon the assessment. The amount assessed shall immediately be due and payable. Unless the taxpayer against whom a jeopardy assessment is made posts the required security and petitions for reassessment within 20 days after service of notice of the jeopardy assessment, such assessment shall become final: Provided, That upon written request of the taxpayer made within the 20-day period, showing reasonable cause therefor, the Tax Commissioner may grant an extension of time not to exceed 30 additional days within which such petition may be filed. If a taxpayer against whom a jeopardy assessment has been made petitions for reassessment or requests an extension of time to file a petition for reassessment, the petition or request shall be accompanied by remittance of the amount assessed or such security as the Tax Commissioner may consider necessary to ensure compliance with the applicable provisions of this chapter. If a petition for reassessment is timely filed, and the amount assessed has been remitted, or such other security posted, the provisions for hearing, determination, and appeal set forth in §11-10A-1 et seq. of this code shall then be applicable.

(c) Amendment of assessment. — The Tax Commissioner may, at any time before the assessment becomes final, amend, in whole or in part, any assessment whenever he or she ascertains that such assessment is improper or incomplete in any material respect.

(d) Supplemental assessment. — The Tax Commissioner may, at any time within the period prescribed for assessment, make a supplemental assessment whenever he or she ascertains that any assessment is imperfect or incomplete in any material respect.

(e) Address for notice of assessment. —

(1) General rule. — In the absence of notice to the Tax Commissioner under §11-10-5o of this code of the existence of a fiduciary relationship, notice of assessment, if sent by certified mail or registered mail to the taxpayer at his or her last known address, shall be sufficient even if such taxpayer is deceased, or is under a legal disability, or, in the case of a corporation or other legal entity, has terminated its existence.

(2) Joint income tax return. — In the case of a joint income tax return filed by a husband and wife, such notice of assessment may be a single notice, except that if the Tax Commissioner has been notified by either spouse that separate residences have been established, then in lieu of a single notice, a duplicate original of the joint notice shall be sent by certified or registered mail to each spouse at his or her last known address.

(3) Estate tax. — In the absence of notice to the Tax Commissioner of the existence of a fiduciary relationship, notice of assessment of a tax imposed by §11-11-1 et seq. of this code, if addressed in the name of the decedent or other person subject to liability and mailed to his or her last known address, by registered or certified mail, shall be sufficient for purposes of this article and §11-11-1 et seq. of this code.

(f) For purposes of this section, the term "taxpayer" includes any partnership or other pass-through entity that owes tax pursuant to §11-21A-1 et seq. of this code.

§11-10-7a. Abatement.

(a) General rule. -- The Tax Commissioner is authorized to abate the assessment of any tax or any liability in respect thereto which:

(1) Is void;

(2) Is assessed after the expiration of the period of limitation properly applicable thereto; or

(3) Is voidable: Provided, That no claim for abatement shall be filed by a taxpayer under this subdivision if the assessment has become final.

(b) Small tax balances. -- The Tax Commissioner is authorized to abate the unpaid portion of an assessment of any tax, or any liability in respect thereof, which has become final, if the Tax Commissioner determines under uniform rules promulgated by him or her that the administration and collection costs involved would not warrant collection of the amount due.

(c) Interest on abated penalties. -- The Tax Commissioner is authorized to abate any interest on a penalty assessed on a tax, when the penalty has been abated.

§11-10-7b. Abatement of interest attributable to errors and by tax division.

(a) In general. -- In the case of any interest due on:

(1) Any deficiency attributable, in whole or in part, to any error or delay determined by the Tax Commissioner to have been caused by an officer or employee of the Tax Division (acting in his or her official capacity) in performing a ministerial act; or

(2) Any payment of any tax (or fee) assessed under section seven of this article to the extent that any error or delay in such payment is determined by the Tax Commissioner to be attributable to an officer or employee of the Tax Division (acting in his or her official capacity) being erroneous or dilatory in performing a ministerial act, the Tax Commissioner may abate all or any part of such interest for any period. For purposes of the preceding sentence, an error or delay shall be taken into account only if no significant aspect of such error or delay can be attributable to the taxpayer (or feepayer) involved, and after the Tax Division has contacted the taxpayer (or feepayer) in writing with respect to such deficiency or payment.

(b) Interest abated with respect to erroneous refund check. -- The Tax Commissioner may abate the interest that accrued under section seventeen of this article on any erroneous refund until the date demand for repayment is made, unless the taxpayer (or a related party) has in any way caused such erroneous refund.

§11-10-7c. Abatement of any penalty or addition to tax attributable to written advice by Tax Commissioner.

(a) In general. -- The Tax Commissioner shall abate any portion of any penalty or addition to tax (or fee) attributable to erroneous advice furnished to the taxpayer (or feepayer) in writing by an officer or employee of the Tax Division, acting in such officer's or employee's official capacity.

(b) Limitations. -- Subsection (a) of this section shall apply only if the Tax Commissioner finds that all of the following conditions are satisfied:

(1) The written advice was reasonably relied upon by the taxpayer (or feepayer) and was in response to a specific written request of the taxpayer (or feepayer); and

(2) The portion of the penalty or addition to tax (or fee) did not result from a failure by the taxpayer (or feepayer) to provide adequate or accurate information.

(c) Any person seeking relief under this section shall file with the commissioner all of the following:

(1) A copy of the person's written request to the commissioner and a copy of the commissioner's written advice;

(2) A statement signed under penalty of perjury setting forth the facts on which the claim is based;

(3) Any other information which the commissioner may require.

§11-10-7d. Combining assessments.

(a) The Tax Commissioner may, subsequent to any investigation authorized by subsection (a), section seven of this article that results in an assessment in each of two or more taxes administered pursuant to this article, combine those assessments into a combined single assessment. In order to complete any investigation, the Tax Commissioner may review and combine returns for the taxes that are the subject of the investigation.

(b) If the Tax Commissioner has combined two or more returns as authorized by subsection (a) of this section, the tax remitted shall be applied against taxes in the order provided in a rule promulgated by the Tax Commissioner under the authority of article three, chapter twenty-nine-a of this code.

(c) If the Tax Commissioner issues a combined single assessment as authorized in subsection (a) of this section, the limitations on assessment provided in section fifteen of this article shall apply separately to each tax liability included in the single assessment.

(d) If the Tax Commissioner issues a single assessment as authorized in subsection (a) of this section and the assessment becomes final pursuant to the provisions of section eight of this article, the Tax Commissioner is authorized to pursue collection of the tax resulting from the combined assessment as authorized by this article, including, but not limited to, sections eleven and thirteen of this article, and to record one lien, pursuant to section twelve of this article, that includes all unpaid amounts of all finalized tax liabilities included in that combined assessment.

§11-10-8. Notice of assessment; petition for reassessment or payment of assessment within sixty days; finality of assessment; payment of final assessment; effective date.

(a) Notice of assessment. -- The Tax Commissioner shall give the taxpayer written notice of any assessment or amended or supplemental assessment made pursuant to this article. The assessment or amended or supplemental assessment, as the case may be, shall become final and conclusive of the liability of the taxpayer and not subject to either administrative or judicial review under the provisions of sections nine or nine-a, and ten of this article, or under the provisions of sections ten or eleven, and nineteen of article ten-a of this chapter, unless the taxpayer to whom a notice of assessment or amended or supplemental assessment, is given, shall within sixty days after service thereof (except in the case of jeopardy assessments, as to which the time for filing a petition is specified in section seven of this article) either:

(1) Petition for reassessment. -- Personally or by certified mail, files with the Tax Commissioner a petition in writing, verified under oath by the taxpayer or his or her duly authorized agent, having knowledge of the facts, setting forth with particularity the items of the assessment objected to, together with the reasons for the objections: Provided, That for all assessments received after December 31, 2002, the taxpayer shall file the petition with the office of tax appeals in accordance with the provisions of section nine, article ten-a of this chapter; or

(2) Payment of assessment. -- Personally or by certified mail, remits to the Tax Commissioner the total amount of the assessment or amended or supplemental assessment, including the additions to tax and penalties as may have been assessed and the amount of interest due.

(b) Finality of assessment. -- The amount of an assessment or amended or supplemental assessment shall be due and payable on the day following the date upon which the assessment or amended or supplemental assessment becomes final. Payment of the amount of the assessment, or amended or supplemental assessment, as provided in subdivision (2), subsection (a) of this section, within sixty days after service of notice of the assessment does not prohibit or otherwise bar the taxpayer from filing a claim for refund or credit under the provisions of section fourteen of this article within the time prescribed therein for the filing of a claim for refund or credit.

(c) Payment of assessment after petition filed. -- A taxpayer who has timely filed a petition for reassessment may, at any time prior to issuance of the administrative decision under section nine or nine-a of this article, or under sections ten or eleven, article ten-a of this chapter, pay under protest the amount of the assessment. Upon payment, the contested case shall thereafter be treated for all purposes as a petition for refund: Provided, That if payment is made after the administrative hearing under section nine or nine-a of this article or under section ten or eleven, article ten-a of this chapter, has commenced or concluded, a new hearing may not be held, but the record shall be properly amended to show that the amount assessed has been paid under protest by the taxpayer and that the petition for reassessment previously filed under this section or under section nine, article ten-a of this chapter is now to be treated as a petition for refund filed under section fourteen of this article.

§11-10-9. Hearing procedure.

(a) When a petition for reassessment provided for in section eight of this article, or a petition for refund or credit provided for in section fourteen of this article, is filed within the time prescribed for filing, or a hearing is requested pursuant to the provisions of any other article of this chapter which is administered under this article, the Tax Commissioner shall assign a time and place for a hearing upon the same and shall notify the petitioner of the hearing by written notice at least twenty days in advance thereof. The hearing shall be held within ninety days from the date of filing the petition or other written request for hearing unless continued by agreement of the parties or by the Tax Commissioner for good cause.

The hearing shall be informal and shall be conducted in an impartial manner by the Tax Commissioner or a hearing examiner designated by him or her. If the hearing is on a petition for reassessment the burden of proof shall be upon the taxpayer to show the assessment is incorrect and contrary to law, either in whole or in part. If the hearing is on a petition for refund or credit, the petitioner shall also have the burden of proof.

After the hearing, the Tax Commissioner shall, within a reasonable time, give notice in writing of his or her decision. Unless an appeal from the decision of the Tax Commissioner rendered in any hearing is taken, pursuant to the provisions of section ten of this article, within sixty days after service of the notice, the Tax Commissioner's decision shall become final and conclusive and not subject to either administrative or judicial review. The amount, if any, due the state under the decision shall be due and payable on the day following the date upon which the decision becomes final. The amount, if any, due the taxpayer under the decision shall be promptly refunded, or the same may be credited pursuant to section fourteen of this article.

(b) All petitions which are on the Tax Commissioner's docket on December 31, 2002, for which no administrative hearing has been held, shall be transferred by the Tax Commissioner to the office of tax appeals no later than January 31, 2003; and thereafter, the petition shall, for all purposes except timeliness of filing, be treated as if it had been filed with the office of tax appeals.

(c) All petitions which are on the Tax Commissioner's docket on December 31, 2002, for which an administrative hearing has been held prior to that date, shall remain on the Tax Commissioner's docket and the Tax Commissioner shall issue an administrative decision no later than March 31, 2003.

§11-10-9a. Small claims procedure; disputes involving $10,000 or less.

(a) In general. -- Notwithstanding the provisions of section nine of this article, if the amount in dispute in any petition for reassessment filed under section eight or in any petition for refund or credit filed under section fourteen does not exceed $10,000 for any one taxable year, then, at the option of the taxpayer and concurred in by the Tax Commissioner before the hearing of the case, proceedings in the case shall be conducted under this section. The proceedings shall be conducted in an informal manner and in accordance with the rules of evidence and rules of procedure as the Tax Commissioner may prescribe. A decision, together with a brief summary of the reasons therefor shall be issued by the Tax Commissioner.

(1) All small claims petitions which are on the Tax Commissioner's docket on December 31, 2002, for which no administrative hearing has been held, shall be transferred by the Tax Commissioner to the office of tax appeals no later than January 31, 2003; and thereafter, the petition shall, for all purposes except timeliness of filing, be treated as if it had been filed with the office of tax appeals.

(2) All small claims petitions which are on the Tax Commissioner's docket on December 31, 2002, for which an administrative hearing has been held prior to that date, shall remain on the Tax Commissioner's docket and the Tax Commissioner shall issue an administrative decision no later than March 31, 2003.

(b) Finality of decision. -- A decision entered in any case in which proceedings are conducted under this section is not subject to review, administrative or judicial, and may not be treated as precedent for any other case.

(c) Discontinuance of proceedings. -- At any time before commencement of the hearing held under this section, the taxpayer may unilaterally withdraw its election made under subsection (a); and at any time before a decision is issued under this section, the taxpayer may request or the Tax Commissioner, on his or her own motion, may order that further proceedings under this section be discontinued because there are reasonable grounds for believing that the amount in dispute exceeds the amount described in subsection (a) of this section. Upon any discontinuance, or change of election, a hearing shall be held in the same manner as other cases to which section nine of this article applies.

(d) Amount of deficiency in dispute. -- For purposes of this section, the amount in dispute includes tax, additions to tax, additional amounts and penalties. It excludes interest.

§11-10-10. Appeals.

(a) Right of appeal. --

(1) A taxpayer may appeal the administrative decision of the Tax Commissioner issued under section nine or fourteen of this article, by taking an appeal to the circuit courts of this state within sixty days after being served with notice of the administrative decision.

(2) A taxpayer may appeal the administrative decision of the office of tax appeals in accordance with the provisions of section nineteen, article ten-a of this chapter.

(b) Venue. -- The appeal may be taken in the circuit court of any county:

(1) Wherein the activity taxed was engaged in; or

(2) Wherein the taxpayer resides; or

(3) Wherein the will of the decedent was probated or letters of administration granted; or

(4) To the circuit court of Kanawha County.

(c) Petition for appeal. -- The appeal proceeding shall be instituted by filing a petition with the circuit court, or the judge thereof in vacation, within the sixty-day period prescribed in subsection (a) of this section. The clerk of the circuit court shall, within ten days after date the petition is filed, serve the Tax Commissioner with a copy of the same by registered or certified mail. This petition shall be in writing, verified under oath by the taxpayer, or his or her duly authorized agent, having knowledge of the facts, set forth with particularity the items of the administrative decision or the assessment objected to, together with the reasons for the objections.

(d) Appeal bond. -- If the appeal is of any assessment for additional taxes (except a jeopardy assessment for which security in the amount thereof was previously filed with the Tax Commissioner), then within ninety days after the petition for appeal is filed, or sooner if ordered by the circuit court, the taxpayer shall file with the clerk of the circuit court a cash bond or a corporate surety bond approved by the clerk. The surety must be qualified to do business in this state. These bonds shall be conditioned that the taxpayer shall perform the orders of the court. The penalty of this bond shall be not less than the total amount of tax, additions to tax, penalties and interest for which the taxpayer was found liable in the administrative decision of the Tax Commissioner. Notwithstanding the foregoing and in lieu of the bond, the Tax Commissioner, in his or her discretion upon the terms as he or she may prescribe, may upon a sufficient showing by the taxpayer, certify to the clerk of the circuit court that the assets of the taxpayer subject to the lien imposed by section twelve of this article, or other indemnification, are adequate to secure performance of the orders of the court: Provided, That if the Tax Commissioner refuses to certify that the assets of the taxpayer or other indemnification are adequate to secure performance of the orders of the court, then the taxpayer may apply to the circuit court for the certification.

(e) Hearing of appeal. –- The court shall hear the appeal and determine anew all questions submitted to it on appeal from the determination of the Tax Commissioner. In the appeal a certified copy of the Tax Commissioner's notice of assessment or amended or supplemental assessment and administrative decision thereon shall be admissible and shall constitute prima facie evidence of the tax due under the provisions of those articles of this chapter to which this article is applicable. The court shall render its decree thereon and a certified copy of the decree shall be filed by the clerk of the court with the Tax Commissioner who shall then correct the assessment in accordance with the decree. An appeal may be taken by the taxpayer or the Tax Commissioner to the Supreme Court of Appeals of this state.

§11-10-10a. Commissioner allowed to acquiesce or not acquiesce in decisions of office of tax appeals or circuit court.

(a) The commissioner may state and periodically publish the Tax Division's acquiescence or nonacquiescence to indicate its position on an adverse decision of the office of tax appeals or a circuit court.

(b) Acquiescence in a decision means acceptance by the commissioner of the conclusion reached, but does not necessarily mean acceptance and approval of any or all of the reasons assigned by the office of tax appeals or circuit court for its conclusion.

(c) Nonacquiescence means that the commissioner does not accept one or more of the adverse conclusions reached by the office of tax appeals or the circuit court even though no appeal is taken from the decision. The decision is binding on the commissioner in the case not appealed but is not binding in any other case.

§11-10-11. Collection of tax.

(a) General. — The Tax Commissioner shall collect the taxes, additions to tax, penalties, and interest imposed by this article or any of the other articles of this chapter to which this article is applicable. In addition to all other remedies available for the collection of debts due this state, the Tax Commissioner may proceed by foreclosure of the lien provided in §11-10-12 of this code, or by levy and distraint under §11-10-13 of this code.

(b) Prerequisite to final settlement of contracts with nonresident contractor; user personally liable. —

(1) Any person contracting with a nonresident contractor subject to the taxes imposed by §11-13-1 et seq., §11-21-1 et seq., and §11-24-1 et seq. of this code, shall withhold payment, in the final settlement of the contract, of a sufficient amount, not exceeding six percent of the contract price, as will in the person’s opinion be sufficient to cover the taxes, until the receipt of a certificate from the Tax Commissioner to the effect that the above referenced taxes imposed against the nonresident contractor have been paid or provided for.

(2) If any person shall fail to withhold as provided in subdivision (1) of this subsection, that person is personally liable for the payment of all taxes attributable to the contract, not to exceed six percent of the contract price. The taxes attributable shall be recoverable by the Tax Commissioner by appropriate legal proceedings, which may include issuance of an assessment under this article.

(c) Prerequisite for issuance of certificate of dissolution or withdrawal of corporation. — The Secretary of State shall withhold the issuance of any certificate of dissolution or withdrawal in the case of any corporation organized under the laws of this state, or organized under the laws of another state and admitted to do business in this state, until the receipt of a certificate from the Tax Commissioner to the effect that every tax administered under this article imposed against any corporation has been paid or provided for, or that the applicant is not liable for any tax administered under this article.

(d) Prerequisite to final settlement of contract with this state or political subdivision; penalty. — All state, county, district, and municipal officers and agents making contracts on behalf of this state or any political subdivision thereof shall withhold payment, in the final settlement of any contract, until the receipt of a certificate from the Tax Commissioner to the effect that the taxes imposed by §11-13-1 et seq., §11-21-1 et seq., and §11-24-1 et seq. of this code against the contractor have been paid or provided for. If the transaction embodied in the contract or the subject matter of the contract is subject to county or municipal business and occupation tax, then the payment shall also be withheld until receipt of a release from the county or municipality to the effect that all county or municipal business and occupation taxes levied or accrued against the contractor have been paid. Any official violating this section is subject to a civil penalty of $1,000, recoverable as a debt in a civil action brought by the Tax Commissioner.

(e) Limited effect of Tax Commissioner’s certificates. — The certificates of the Tax Commissioner provided in subsections (b), (c), and (d) of this section shall not bar subsequent investigations, assessments, refunds, and credits with respect to the taxpayer.

(f) Payment when person sells out or quits business; liability of successor; lien. —

(1) If any person subject to any tax administered under this article sells out his, her, or its business or stock of goods, or ceases doing business, any tax, additions to tax, penalties, and interest imposed by this article or any of the other articles of this chapter to which this article is applicable shall become due and payable immediately and that person shall, within 30 days after selling out his, her, or its business or stock of goods or ceasing to do business, make a final return or returns and pay any tax or taxes which are due. The unpaid amount of any tax is a lien upon the property of that person.

(2) The successor in business of any person who sells out his, her, or its business or stock of goods, or ceases doing business, is personally liable for the payments of tax, additions to tax, penalties, and interest unpaid after expiration of the 30-day period allowed for payment: Provided, That if the business is purchased in an arms-length transaction, and if the purchaser withholds so much of the consideration for the purchase as will satisfy any tax, additions to tax, penalties, and interest which may be due until the seller produces a receipt from the Tax Commissioner evidencing the payment thereof, the purchaser is not personally liable for any taxes attributable to the former owner of the business unless the contract of sale provides for the purchaser to be liable for some or all of the taxes. The amount of tax, additions to tax, penalties, and interest for which the successor is liable is a lien on the property of the successor, which shall be enforced by the Tax Commissioner as provided in this article.

(g) Priority in distribution of estate or property in receivership. — All taxes due and unpaid under this article shall be paid from the first money available for distribution, voluntary or compulsory, in receivership, bankruptcy or otherwise, of the estate of any person or entity, subject to §38-10C-1 et seq. of this code and subject to the priority of taxes and debts due the United States which under federal law are given priority over the debts and liens created by this article.

(h) Injunction. — If the taxpayer fails for a period of more than 60 days to fully comply with any of the provisions of this article or of any other article of this chapter to which this article is applicable, the Tax Commissioner may institute a proceeding to secure an injunction to restrain the taxpayer from doing business in this state until the taxpayer fully complies with the provisions of this article or any other articles. No bond is required of the Tax Commissioner in any action instituted under this subsection.

(i) Costs. — In any proceeding under this section, upon judgment or decree for the Tax Commissioner, he or she shall be awarded his or her costs.

(j) Refunds; credits; right to offset. —

(1) Whenever a taxpayer has a refund or credit due it for an overpayment of any tax administered under this article, the Tax Commissioner may reduce the amount of the refund or credit by the amount of any tax administered under this article, whether it be the same tax or any other tax, which is owed by the same taxpayer and collectible as provided in subsection (a) of this section.

(2) The Tax Commissioner may enter into agreements with the Internal Revenue Service that provide for offsetting state tax refunds against federal tax liabilities; offsetting federal tax refunds against state tax liabilities; and establishing the amount of the offset fee per transaction which both agencies may charge each other: Provided, That offsets under subdivision (1) of this subsection shall occur prior to offsets under this subdivision. At the times moneys are received as a result of an offset of a taxpayer’s federal tax refund under the provisions of section 6402(e) of the Internal Revenue Code, the taxpayer is given credit against state tax liability for the amount of the offset less a deduction for the offset fee imposed by the Internal Revenue Service: Provided, however, That the amount of the offset fee imposed by the Internal Revenue Service shall be added to the taxes, interest, and penalties owed by the taxpayer to this state: Provided further, That the amount of the offset fee imposed by the Tax Commissioner shall be deducted from the moneys retained from the taxpayer’s state tax refund and then deposited in the special revolving fund which is hereby created and established in the State Treasury and designated as the Tax Offset Fee Administration Fund: And provided further, That the fees deposited in the Tax Offset Fee Administration Fund may be expended by the Tax Commissioner for the general administration of the taxes administered under the authority of this article.

(k) Spouse relieved of liability in certain cases. —

(1) In general. — Under regulations prescribed by the Tax Commissioner, if:

(A) A joint personal income tax return has been made for a taxable year;

(B) On the return there is a substantial understatement of tax attributable to grossly erroneous items of one spouse;

(C) The other spouse establishes that in signing the return he or she did not know, and had no reason to know, that there was a substantial understatement; and

(D) Taking into account all the facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in tax for the taxable year attributable to the substantial understatement, then the other spouse is relieved of any liability for tax, including interest, additions to tax, and other amounts for the taxable year to the extent the liability is attributable to the substantial understatement.

(2) Grossly erroneous items. — For purposes of this subsection, the term “grossly erroneous items” means, with respect to any spouse:

(A) Any item of gross income attributable to a spouse which is omitted from gross income; and

(B) Any claim of a deduction, credit, or basis by a spouse in an amount for which there is no basis in fact or law.

(3) Substantial understatement. — For purposes of this subsection, the term “substantial understatement” means any understatement, as defined in regulations prescribed by the Tax Commissioner which exceed $500.

(4) Understatement must exceed specified percentage of spouse’s income.

(A) Adjusted gross income of $20,000 or less. — If the spouse’s adjusted gross income for the readjustment year is $20,000 or less, this subsection applies only if the liability described in subdivision (1) of this subsection is greater than 10 percent of the adjusted gross income.

(B) Adjusted gross income of more than $20,000. — If the spouse’s adjusted gross income for the readjustment year is more than $20,000, paragraph (A) of this subdivision is applied by substituting “25 percent” for “10 percent”.

(C) Readjustment year. — For purposes of this subdivision, the term “readjustment year” means the most recent taxable year of the spouse ending before the date the deficiency notice is mailed.

(D) Computation of spouse’s adjusted gross income. — If the spouse is married to another spouse at the close of the readjustment year, the spouse’s adjusted gross income shall include the income of the new spouse whether or not they file a joint return.

(E) Exception for omissions from gross income. — This subdivision shall not apply to any liability attributable to the omission of an item from gross income.

(5) Adjusted gross income. — For purposes of this subsection, the term “adjusted gross income” means the West Virginia adjusted gross income of the taxpayer, determined under §11-21-1 et seq. of this code.

§11-10-11a. Administration of special district excise tax; commission authorized.

(a) Any municipality or county commission which, pursuant to section twelve, article twenty-two, chapter seven of this code, or section twelve, article thirty-eight, chapter eight of this code imposes a special district excise tax shall, by express provision in the order or ordinance imposing that tax, authorize the State Tax Commissioner to administer, assess, collect and enforce that tax on behalf of and as its agent.

(1) The county commission or municipality shall make such authorization by the adoption of a provision in its order or ordinance levying a special district excise tax stating its purpose and referring to this section and providing that the order or ordinance shall be effective on the first day of a month at least sixty days after its adoption.

(2) A certified copy of the order or ordinance shall be forwarded to the State Auditor, the State Treasurer and the Tax Commissioner so that it will be received within five days after its adoption or enactment.

(b) Any special district excise tax administered under this section shall be administered and collected by the Tax Commissioner in the same manner and subject to the same interest, additions to tax and penalties as provided for the tax imposed in article fifteen of this chapter.

(c) All special district excise tax moneys collected by the Tax Commissioner under this section shall be paid into the State Treasury to the credit of each county commission’s subaccount in the economic opportunity development district fund created pursuant to section nine, article twenty-two, chapter seven of this code, or to the credit of each municipality’s subaccount in the economic opportunity development district fund created pursuant to section nine, article thirty-eight, chapter eight of this code, for the particular economic opportunity development district. The special district excise tax moneys shall be credited to the subaccount of each particular county commission or municipality levying a special district excise tax being administered under this section. The credit shall be made to the subaccount of the county commission or municipality for the economic opportunity development district in which the taxable sales were made and taxable services rendered as shown by the records of the Tax Commissioner and certified by him or her monthly to the State Treasurer, namely, the location of each place of business of every vendor collecting and paying the tax to the Tax Commissioner without regard to the place of possible use by the purchaser.

(d) As soon as practicable after the special district excise tax moneys have been paid into the State Treasury in any month for the preceding reporting period, the district board or the county commission or municipality imposing the tax may issue a requisition to the State Auditor requesting issuance of a state warrant for the proper amount in favor of each county commission or municipality entitled to the monthly remittance of its special district excise tax moneys.

(1) Upon receipt of the requisition, the Auditor shall issue his or her warrant on the State Treasurer for the funds requested and the State Treasurer shall pay the warrant out of the subaccount.

(2) If errors are made in any payment, or adjustments are otherwise necessary, whether attributable to refunds to taxpayers or to some other fact, the errors shall be corrected and adjustments made in the payments for the next six months as follows: One sixth of the total adjustment shall be included in the payments for the next six months. In addition, the payment shall include a refund of amounts erroneously not paid to the county commission or the municipality and not previously remitted during the three years preceding the discovery of the error.

(3) A correction and adjustment in payments described in this subsection due to the misallocation of funds by the vendor shall be made within three years of the date of the payment error.

(e) Notwithstanding any other provision of this code to the contrary, the Tax Commissioner shall deduct and retain for the benefit of his or her office for expenditure pursuant to appropriation of the Legislature from each payment into the State Treasury, as provided in subsection (c) of this section, one percent thereof as a commission to compensate his or her office for the discharge of the duties described in this section.

§11-10-11b. Fund creation; authorization for expenditure.

Amounts deducted and retained by the Tax Commissioner under subsection (e), section eleven-a of this article shall be deposited by the Tax Commissioner in the special revolving fund which is hereby created and established in the state Treasury and designated as the "special district excise tax administration fund." Amounts deposited in the special district excise tax administration fund may be expended by the Tax Commissioner for the general administration of the taxes administered under the authority of this article.

§11-10-11c. State administration of local sales and use taxes and excise taxes; jurisdiction and standing before the office of tax appeals; rule-making authority.

(a) The Tax Commissioner has exclusive responsibility for administering, collecting and enforcing all local sales and use taxes and excise taxes imposed pursuant to article twenty-two, chapter seven of this code, section five-a, article one, chapter eight of this code, article thirteen-c, chapter eight of this code and article thirty-eight, chapter eight of this code.

(b) Pursuant to, and limited by, the provisions of section eight, article ten-a of this chapter, the Office of Tax Appeals has exclusive and original jurisdiction to hear disputes arising from any local sales and use taxes and excise taxes for which the Tax Commissioner has exclusive administration, enforcement and collection responsibility. No municipality or county has standing before the Office of Tax Appeals in any dispute arising under any local sales and use tax and excise tax upon which the Tax Commissioner has exclusive responsibility for administration, enforcement and collection.

(c) Notwithstanding any other provision of this code to the contrary, the Tax Commissioner may assess a fee, to be established by legislative rule pursuant to the provisions of article three, chapter twenty nine-a of this code, to be retained from collections authorized by section five-a, article one, chapter eight of this code, and section six, article thirteen-c, chapter eight of this code: Provided, That the fee may not exceed five percent of such collections in total including any fee otherwise authorized by this code or any duly enacted ordinance.

(d) Establishment of special revenue account.

(1) There is created in the State Treasury a special revenue revolving fund account known as the "Local Sales Tax and Excise Tax Administration Fund". Expenditures from the fund shall be for the purposes set forth in this section and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code: Provided, That for the fiscal year ending June 30, 2014, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature. The fund shall consist of:

(A) Any funds collected pursuant to section (c) of this section; and

(B) Any funds received on and after July 1, 2013, from fees retained by the Tax Commissioner pursuant to section six, article thirteen-c, chapter eight of this code; and

(C) Amounts deducted and retained by the Tax Commissioner under subsection (e), section eleven-a of this article; and

(D) Any future funds appropriated by the Legislature or transferred by any public agency as contemplated or permitted by applicable federal or state law; and

(E) Any accrued interest or other return on the moneys in the fund.

(2) On July 1, 2013, all moneys in the Tax Department "Municipal Sales and Use Tax Operations Fund" established under section six, article thirteen-c, chapter eight of this code shall be transferred to the Local Sales Tax and Excise Tax Administration Fund established in this section.

(3) On July 1, 2013, all moneys in the "Special District Excise Tax Administration Fund" established under section eleven-b of this article shall be transferred to the Local Sales Tax and Excise Tax Administration Fund established in this section.

(4) Amounts deposited in the Local Sales Tax and Excise Tax Administration Fund may be expended by the Tax Commissioner for the general administration, collection and enforcement of all local sales and use taxes and excise taxes imposed pursuant to article twenty-two, chapter seven of this code, section five-a, article one, chapter eight of this code, article thirteen-c, chapter eight of this code and article thirty-eight, chapter eight of this code.

(e) Notwithstanding the provisions of section eleven-b of this article, The Tax Commissioner may prescribe by rule the schedule and manner for deposits of moneys into the Local Sales Tax and Excise Tax Administration Fund and any other administrative and procedural requirements as may be useful or necessary for the management and handling of the fund.

(f) Effective Date - The provisions of this section enacted in 2013 are effective on and after July 1, 2013.

§11-10-12. Liens, release; subordination; foreclosure; withdrawal.

(a) General. — Any tax, additions to tax, penalties or interest due and payable under this article or any of the other articles of this chapter to which this article is applicable is a debt due this state. It is a personal obligation of the taxpayer and is a lien upon the real and personal property of the taxpayer.

(b) Duration of lien. — The lien created by this section continues until the liability for the tax, additions to tax, penalties and interest is satisfied or upon the expiration of ten years from the date the tax, additions to tax, penalties and interest are due and payable under section eight of this article or the date the tax return is filed, whichever is later.  

(c) Recordation. — The lien created by this section is subject to the restrictions and conditions embodied in article ten-c, chapter thirty-eight of this code and any amendment made or which may hereafter be made thereto: Provided, That the notice of lien shall indicate the date the tax, additions to tax, penalties and interest are due and payable under section eight of this article or the date the tax return was filed and the lien expiration date.

(d) Release or subordination. — The Tax Commissioner, pursuant to rules prescribed by him or her, may issue his or her certificate of release of any lien created pursuant to this section when the debt is adequately secured by bond or other security. He or she shall issue his or her certificate of release when the debt secured has been satisfied. The certificate of release shall be issued in duplicate. One copy shall be forwarded to the taxpayer and the other copy shall be forwarded to the clerk of the county commission of the county wherein the lien is recorded. The clerk of the county commission shall record the release without payment of any fee and the recordation is a release and full discharge of the lien. The Tax Commissioner may issue his or her certificate of release of the lien as to all or any part of the property subject to the lien, or may subordinate the lien to any other lien or interest, but only if there is paid to the state an amount not less than the value of the interest of the state in the property, or if the interest of the state in the property has no value.

(e) Foreclosure. — The Tax Commissioner may enforce any lien created and recorded under this section, against any property subject to the lien by civil action in the circuit court of the county wherein the property is located, in order to subject the property to the payment of the tax secured by the lien. All persons having liens upon or having any interest in the property shall be made parties to the action. The court may appoint a receiver or commissioner who shall ascertain and report all liens, claims and interests in and upon the property, the validity, amount and priority of each. The court shall, after notice to all parties, proceed to adjudicate all matters involved therein, shall determine the validity, amount and priorities of all liens, claims and interests in and upon the property and shall decree a sale of the property by the sheriff or any commissioner to whom the action is referred, and shall decree distribution of the proceeds of the sale according to the findings of the court in respect to the interests of the parties.

(f) Discharge of lien. — A sale of property against which the state has a lien under this section, made pursuant to an instrument creating a lien on the property or made pursuant to a statutory lien on the property, or made pursuant to a judicial order to enforce any judgment in any civil action, shall be made subject to and without disturbing the state tax lien if the state tax lien was recorded more than thirty days before the sale, unless:

(1) The Tax Commissioner is made a party to the civil action;

(2) The Tax Commissioner is given notice of the sale in writing not less than fifteen days prior to sale; or

(3) The Tax Commissioner consents to the sale. The notice shall contain the name of the owner of the property and the Social Security number or federal employer identification number of the owner.

(g) Withdrawal of lien. —

(1) The Tax Commissioner or the Tax Commissioner’s designee may withdraw a tax lien upon making one or more of the following determinations:

(A) The lien was recorded prematurely, inadvertently or otherwise erroneously; or

(B) The taxpayer voluntarily and through due diligence paid the lien, fulfilled a payment plan agreement, fulfilled the terms of an offer in compromise, timely provided supporting documentation or paid the lien in good faith.

(2) A withdrawal of the lien shall be issued in duplicate. One copy shall be forwarded to the taxpayer and the other copy shall be forwarded to the clerk of the county commission of the county wherein the lien is recorded. The clerk of the county commission shall record the withdrawal of lien without payment of any fee.

(h) Release of lien. — Subject to such rules as the Tax Commissioner may prescribe, pursuant to article three, chapter twenty-nine-a of this code, the Tax Commissioner shall issue a certificate of release of any lien imposed with respect to any tax or fee administered under this article not later than sixty days after the day on which the Tax Commissioner finds that the liability for the amount assessed, together with all interest and additions to tax in respect thereof, has been fully satisfied: Provided, That subject to such rules as the Tax Commissioner may prescribe pursuant to article three, chapter twenty-nine-a of this code, the Tax Commissioner shall withdraw, release or otherwise terminate any lien imposed with respect to any tax or fee administered under this article, upon the determining that the lien is unenforceable, or in accordance with such other criteria as the Tax Commissioner may prescribe pursuant to rule.

§11-10-13. Levy and distraint.

(a) Authority of Tax Commissioner. -- If any tax administered under this article is shown to be due on a return, it is required to be paid at the time a return is filed and if any portion of such tax is not so paid, or if an assessment of tax is made by the Tax Commissioner and notice thereof is given as required by this article and such assessment has become final and is not subject to administrative or judicial review, then, if any person liable to pay any tax administered under this article neglects or refuses to pay the same within fifteen days after notice and demand, it shall be lawful for the Tax Commissioner (or his delegate) to collect such tax (and such further sum as is sufficient to cover the expense of the levy) by levy upon all property and rights to property belonging to such person or on which there is a lien provided in this article, or any article administered under this article, for payment of the tax. If the Tax Commissioner makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be given by the Tax Commissioner (or his delegate) and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the fifteen-day period provided in this section.

(b) "Levy" defined. -- The term "levy" as used in this section includes the power of distraint and seizure by any means. Except as otherwise provided in this section, a levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Tax Commissioner, or his delegate, may levy upon property or rights to property, he may seize and sell such property or rights to property, whether such property be real or personal, tangible or intangible.

(c) Successive seizures. -- Whenever any property or a right to property upon which levy has been made by virtue of subsection (a) is not sufficient to satisfy the claim of the State of West Virginia for which levy is made, the Tax Commissioner may, thereafter, and as often as may be necessary, proceed to levy in like manner upon any other property liable to levy of the person against whom such claim exists, until the amount due from him together with all expenses, is fully paid.

(d) Distress warrant. -- The Tax Commissioner may issue a distress warrant to the sheriff of any county of this state, or to any officer or employee of the state Tax Department, commanding him to levy upon and sell any such property or rights to property subject to levy in accordance with the provisions of this article. A distress warrant shall be executed within sixty days from the date the warrant was issued. The sheriff shall return the warrant and any money collected to the Tax Commissioner within sixty-five days from the date the warrant was issued. The provisions of articles four, five and six, chapter thirty-eight of this code shall not apply to the issuance or execution of any distress warrant issued under this subsection.

(e) Requirement of notice before levy.

(1) In general. -- Levy may be made under subsection (a) upon the salary or wages or other property or rights to property of any person with respect to any unpaid tax only after the Tax Commissioner has notified such person in writing of his intention to make such levy.

(2) Ten-day requirement. -- The notice required under paragraph (1) shall be given in person, or left at the dwelling or usual place of business of such person, or sent by certified mail to such person's last known address, no less than ten days prior to the day of levy: Provided, That no notice need be given if the Tax Commissioner has made a finding under the last sentence of subsection (a) that collection of the tax is in jeopardy.

(3) Continuing levy on salary and wages. -- The effect of a levy on salary or wages payable to or received by a taxpayer shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied or becomes unenforceable by reason of lapse of time, at which time the Tax Commissioner shall promptly release such levy and notify the person upon whom such levy was made that such levy has been released.

§11-10-13a. Property exempt from levy.

(a) Enumeration. -- There shall be exempt from levy:

(1) Wearing apparel and school books. -- Items of wearing apparel and school books that are necessary for the taxpayer or for members of his or her family.

(2) Fuel, provisions, furniture and personal effects. -- If the taxpayer is the head of a family, so much of the fuel, provisions, furniture and personal effects in his household and of the arms for personal use, livestock and poultry of the taxpayer, as does not exceed $1,500 in value; if the taxpayer is an individual who is not the head of a household, this exemption shall not exceed $1,000.

(3) Books and tools of a trade, business or profession. -- So many of the books and tools necessary for the trade, business, or profession of the taxpayer as do not exceed in the aggregate $1,000 in value.

(4) Unemployment benefits. -- Any amount payable to an individual with respect to his or her unemployment (including any portion thereof payable with respect to dependents) under an unemployment compensation law of the United States, or of this state, or any other state.

(5) Undelivered mail. -- Mail, addressed to any person, which has not been delivered to the addressee.

(6) Annuity and pension payments. -- Annuity or pension payments under any pension or retirement plan, including social security payments.

(7) Workers' compensation. -- Any amount payable to an individual as workers' compensation (including any portion thereof payable with respect to dependents) under a workers' compensation law of the United States, or of this state or any other state.

(8) Judgments for support of minor children. -- If the taxpayer is required by a judgment of a court of competent jurisdiction, entered prior to the date of levy, to contribute to the support of his other minor children, so much of his or her salary, wages or other income as is necessary to comply with such judgment.

(9) Public assistance. -- Any amount payable to any person from a public assistance or relief fund created under the law of the United States or of this state or of any other state.

(10) Minimum exemption for wages, salary and other income. -- Any amount payable to or receivable by an individual as wages or salary for services provided by an employee to his or her employer, or as income derived from other sources, during any period, to the extent that the total of such amounts payable to or received by him or her during such period does not exceed the applicable exempt amount determined under subsection (d).

(11) Homestead. -- If the taxpayer owns a homestead located in this state, the first $5,000 thereof shall be exempt from levy.

(b) Appraisal. -- The officer seizing property of the type described in subsection (a) shall appraise and set aside to the owner the amount of such property declared to be exempt. If the taxpayer objects at the time of the seizure to the valuation fixed by the office making the seizure, the Tax Commissioner shall summon three disinterested individuals who shall make the valuation.

(c) No other property exempt. -- Notwithstanding any other law of this state, no property or rights to property shall be exempt from levy other than property specifically made exempt by subsection (a).

(d) Exempt amount of wages, salary or other income.

(1) In the case of an individual who is paid or receives all of his wages, salary and other income on a weekly basis, the amount of the wages, salary and other income payable to or receivable by the person during any week which is exempt from levy under paragraph (1), subsection (a) shall be:

(A) Thirty times the state minimum wage per hour, plus

(B) Twenty-five dollars for each additional dependent of the taxpayer.

§11-10-13b. Surrender of property subject to levy.

(a) Requirement. -- Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Tax Commissioner, surrender such property or rights (or discharge such obligation) to the Tax Commissioner, except such part of the property or rights as is, at the time of such demand, subject to any prior attachment, execution or levy.

(b) Enforcement of levy.

(1) Extent of personal liability.

Any person in possession of or obligated with respect to property subject to levy upon which levy has been made, who fails or refuses to surrender any property or rights to property, subject to levy, upon demand by the Tax Commissioner, shall be personally liable to the state in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of taxes for the collection of which such levy has been made, together with costs and interest on such sum at an annual rate established under section seventeen-a of this article, from the date of the levy. Any amount (other than costs) received under this paragraph shall be credited against the liability for the collection of which such levy was made.

(2) Penalty for violation. -- In addition to the personal liability imposed by paragraph (1), if any person required to surrender property or rights to property fails or refuses to surrender the same without reasonable cause, such person shall be liable for a money penalty equal to fifty percent of the amount recovered under paragraph (1). No part of this penalty shall be credited against the tax liability for the collection of which such levy was made.

(c) Effect of honoring levy. -- Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which levy has been made, who upon demand by the Tax Commissioner, surrenders such property or rights to property (or discharges such obligation) to the Tax Commissioner, or who pays a liability under subsection (b)(1) shall be discharged from any obligation or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment.

(d) "Person" defined. -- The term "person" as used in subsection (a) includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee or member is under a duty to surrender the property or rights to property or to discharge the obligation.

§11-10-13c. Sale of seized property.

(a) Notice of seizure. -- As soon as practicable after seizure of property, notice in writing shall be given by the Tax Commissioner to the owner of the property (or, in the case of personal property, the possessor thereof), or shall be left at his usual place of abode or business if he has such within the county where the seizure is made. If the owner cannot be readily located, or has no dwelling or place of business within such county, the notice may be mailed to his last known address. Such notice shall specify the sum demanded and shall contain, in the case of personal property, an account of the property seized and, in the case of real property, a description with reasonable certainty of the property seized.

(b) Notice of sale. -- The Tax Commissioner may sell any property seized under section thirteen of this article. As soon as practicable after the seizure of the property, the Tax Commissioner shall give notice to the owner, in the manner prescribed in subsection (a), and shall cause a notice of sale to be published as a Class II legal advertisement in some newspaper published or generally circulated within the county wherein such seizure is made, or the county where the property is located, the last date of publication being not less than five days prior to sale. This notice shall identify the property to be sold, and the date, time, place, manner and conditions of the sale thereof, all of which shall be at the discretion of the Tax Commissioner. The sale shall be conducted by public auction, or by public sale under sealed bids. Before the sale, the Tax Commissioner may determine a minimum price for which the property shall be sold, and if no person offers for such property at the sale, the amount of the minimum price, the property shall be declared to be purchased at such price for the State of West Virginia; otherwise the property shall be declared to be sold to the highest bidder. In determining the minimum price, the Tax Commissioner shall take into account the expense of making the levy and sale.

(c) Sale of indivisible property. -- If any property liable to levy is not divisible, so as to enable the Tax Commissioner by sale of a part thereof to raise the whole amount of the tax and expense of making the levy and sale, the whole of such property shall be sold. However, where the property sold is coowned or jointly-owned by the taxpayer and an innocent third party, the proceeds of sale shall be divided, based on the respective interests of the persons owning the property immediately prior to the levy and sale, and the proceeds attributable to the interest of the innocent owner or owners shall be distributed to them: Provided, That where the property to be sold is so coowned or jointly-owned by an innocent third party, having no delinquent tax liability attempted to be collected under such levy and sale, such innocent party may petition the circuit court of the county in which the property is located for relief, including postponement of the sale, in order that the court can determine if the property can be partitioned, so as to avoid sale of the innocent party's portion or grant and afford other relief by the court protective of the rights and interests of such innocent party.

§11-10-13d. Sale of perishable goods.

If the Tax Commissioner determines that any property seized is liable to perish or become greatly reduced in price or value by keeping, or that such property cannot be kept without great expense, he shall appraise the value of such property and:

(a) Return to owner. -- If the owner of the property can be readily found, the Tax Commissioner shall give him notice of such determination of the appraised value of the property. The property shall be returned to the owner if, within such time as may be specified in the notice, the owner either:

(1) Pays to the Tax Commissioner an amount equal to the appraised value; or

(2) Gives bond in such form, with such sureties, and in such amount as the Tax Commissioner shall prescribe, to pay the appraised amount at such time as the Tax Commissioner determines to be appropriate under the circumstances.

(b) Immediate sale. -- If the owner does not pay such amount or furnish such bond in accordance with this subsection, the Tax Commissioner shall, as soon as practicable, make public sale of the property in accordance with such regulations as may be prescribed by the Tax Commissioner.

§11-10-13e. Redemption of property.

(a) Before sale. -- Any person whose property has been levied upon shall have the right to pay the amount due, together with the expenses of the proceeding, if any, to the Tax Commissioner at any time prior to the sale thereof, and upon such payment, the Tax Commissioner shall restore such property to him and all further proceedings in connection with the levy on such property shall cease from the time of such payment.

(b) Redemption of real estate after sale.

(1) Period. -- The owners of any real property sold as provided in section thirteen-c, their heirs, executors or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the property sold, or any particular tract of such property, at any time within one hundred eighty days after the sale thereof.

(2) Price. -- Such property or tract of property shall be permitted to be redeemed upon payment to the purchaser, or in case he cannot be found in the county in which the property to be redeemed is situated, then to the Tax Commissioner, for the use of the purchaser, his heirs or assigns, the amount paid by such purchaser and interest thereon at the rate specified in section seventeen-a, from the date the purchaser paid the purchase price to the date the property is redeemed.

(c) Record. -- When any lands sold are redeemed as provided in this section, the Tax Commissioner shall cause entry of the fact to be made upon the record mentioned in section thirteen-h and such entry shall be evidence of such redemption.

(d) Subrogation to state lien. -- Any person redeeming the interest of another shall be subrogated to the lien of the state on such interest. Such person shall lose his right to this lien, however, unless within thirty days after receiving the certificate of sale of personal property or the Tax Commissioner's deed of real property, he shall file with the clerk of the county in which the real property is located or of the county in which the personal property is located or where the delinquent taxpayer resides or has his business location, or if neither be in this state, the clerk of Kanawha County, his claim against the delinquent taxpayer and a copy of the certificate of sale of personal property or deed to real property.

§11-10-13f. Certificate of sale; deed to real property; notice and access to recover personal property; abandonment and removal of personal property.

(a) Certificate of sale. C In the case of property sold as provided in section thirteen-c the Tax Commissioner shall provide to the purchaser a certificate of sale upon payment in full of the purchase price. In the case of real property, such certificate shall set forth the real property purchased, for whose taxes the same was sold, the name of the purchaser and the price paid therefor.

(b) Deed to real property. C In the case of any real property sold as provided in section thirteen-c and not redeemed in the manner and within the time provided in section thirteen-e, the Tax Commissioner shall execute, in accordance with the laws of this state pertaining to sales of real property under execution, to the purchaser of that real property at the sale, upon his or her surrender of the certificate of sale, a deed to the real property so purchased by him or her reciting the facts set forth in the certificate.

(c) Real property purchased by the state. C If real property is declared purchased by the State of West Virginia at a sale pursuant to section thirteen-c, the Tax Commissioner shall, at the proper time, execute a deed therefor, and without delay cause the deed to be duly recorded in the office of the clerk of the county in which the real property is located.

(d) Removal of personal property. C Following the execution of a deed to real property pursuant to this section, and after the previous owner has vacated the property either voluntarily or following an eviction proceeding, any personal property remaining on the real property may be deemed abandoned if the purchaser of the real property provides notice, pursuant to this subsection, and the personal property remains on the real property at the conclusion of the notice period. The notice shall state that the personal property will be deemed abandoned if it is not removed from the real property before the end of the thirtieth day following the postmark date of the notice. If the locks are changed or the previous owner is otherwise prevented from accessing the personal property, the purchaser shall provide the previous owner access to the personal property on reasonable terms. The notice shall state a phone number, a mailing address, and a physical address where the purchaser or an agent for the purchaser who can provide access to the personal property can be contacted; and shall further state that the previous owner may contact the purchaser, and that purchaser will provide the previous owner access to the personal property on reasonable terms. The notice shall be sent to the former owner(s) of the real property at their usual place of business or their usual place of abode or last known address. If the purchaser has received notice in writing or by electronic record that personal property belongs to another or that another person or entity has a security interest in the personal property, and if that person's mailing address is also received by the purchaser in writing or by electronic record, notice shall be sent to that person or entity as well. The notice shall be made to all required persons, as stated in this section, by both certified mail and regular mail. The notice is complete when mailed, notwithstanding the fact that the notice may be returned as unclaimed or refused. If the notice period passes and the personal property remains on the real property, then the personal property shall be deemed abandoned and the purchaser of the real property may dispose of the remaining personal property in his or her discretion. The notice required by this section may not be waived before the property is vacated.

§11-10-13g. Legal effect of certificate of sale of personal property and deed of real property.

(A) Certificate of sale of property other than real property. -- In all cases of sale pursuant to section thirteen-c of property (other than real property), the certificate of such sale:

(1) As evidence. -- Shall be prima facie evidence of the right of the officer to make such sale, and conclusive evidence of the regularity of his proceedings in making the sale; and

(2) As conveyances. -- Shall transfer to the purchaser all right, title and interest of the party delinquent in and to the property sold; and

(3) As authority for transfer of corporate stock. -- If such property consists of stocks, shall be notice, when received, to any corporation, company or association of such transfer, and shall be authority to such corporation, company or association to record the transfer on its books and records in the same manner as if the stocks were transferred or assigned by the party holding the same, in lieu of any original or prior certificate, which shall be void, whether canceled or not; and

(4) As receipts. -- If the subject of sale is securities or other evidences of debt, shall be a good and valid receipt to the person holding the same, as against any person holding or claiming to hold possession of such securities or other evidences of debt; and

(5) As authority for transfer of title to motor vehicle. -- If such property consists of a motor vehicle, shall be notice, when title to received, to any public official charged with the registration of title to motor vehicles, of such transfer and shall be authority to such official to record the transfer on his books and records in the same manner as if the certificate of title to such motor vehicle has been transferred or assigned by the party holding the same, in lieu of any original or prior certificate, which shall be void, whether canceled or not.

(b) Deed of real property. -- In the case of the sale of real property, pursuant to section thirteen-c;

(1) Deed as evidence. -- The deed of sale given pursuant to section thirteen-c shall be prima facie evidence of the facts therein stated; and

(2) Deed as conveyance of title. -- If the proceedings of the Tax Commissioner as set forth have been substantially in accordance with the provisions of law, such deed shall be considered and operate as a conveyance of all the rights, title and interest the party delinquent had in and to the real property thus sold at the time the lien of the State of West Virginia attached thereto.

(c) Effect of junior encumbrances. -- A certificate of sale of personal property given or a deed to real property executed pursuant to section thirteen-f shall discharge such property from all liens, encumbrances and titles over which the lien of the State of West Virginia with respect to which the levy was made had priority.

§11-10-13h. Records of sale.

(a) Requirement. -- The Tax Commissioner shall, for each county, keep a record of all sales of real property under section thirteen-c and of redemptions of such property. The record shall set forth the tax for which any such sale was made, the dates of seizure and sale, the name of the party assessed and all proceedings in making such sale, the amount of expenses, the names of the purchasers and the date of the deed.

(b) Copy as evidence. -- A copy of such record, or any part thereof, certified by the Tax Commissioner shall be evidence in any court of this state of the truth of the facts therein stated.

§11-10-13i. Expense of levy and sale.

The Tax Commissioner shall determine the expenses to be allowed in all cases of levy and sale under this article.

§11-10-13j. Application of proceeds of levy.

(a) Collection of liability. -- Any money realized from a levy shall be applied as follows:

(1) Expense of levy and sale. -- First, against the expenses of the proceedings;

(2) Liability of delinquent taxpayer. -- The amount, if any, remaining after applying paragraph (1) shall then be applied against the liability in respect of which the levy was made or the sale conducted. The amount, if any, remaining shall then be applied against any other delinquent tax liability of the taxpayer for which levy may be made under section thirteen.

(b) Surplus proceeds. -- Any surplus proceeds remaining after the application of subsection (a) shall, upon application and satisfactory proof in support thereof, be credited or refunded by the Tax Commissioner to the person or persons legally entitled thereto.

§11-10-13k. Authority to release levy and return property.

(a) Release of levy. -- It shall be lawful for the Tax Commissioner, under regulations prescribed by him to release the levy upon all or part of the property or rights to property levied upon where the Tax Commissioner determines that such action will facilitate the collection of the liability, but such release shall not operate to prevent a subsequent levy.

(b) Return of property. -- If the Tax Commissioner determines that property has been wrongfully levied upon, it shall be lawful for the Tax Commissioner to return:

(1) The specific property levied upon;

(2) An amount of money equal to the amount of money levied upon; or

(3) An amount of money equal to the amount of money received by the State of West Virginia from a sale of such property. Property may be returned at any time. An amount equal to the amount of money levied upon or received from such sale may be returned at any time before the expiration of nine months from the date of such levy. For purposes of paragraph (3), if property is declared purchased by the State of West Virginia at a sale pursuant to section thirteen-c (relating to manner and conditions to sale), the State of West Virginia shall be treated as having received an amount of money equal to the minimum price determined pursuant to such section or (if larger) the amount received by the State of West Virginia from the resale of such property.

(c) The Tax Commissioner shall, upon request, make public the names and persons in whose favor a release of levy or return of property has been made in subsections (a) and (b).

(d) Interest. -- Interest shall be allowed and paid at an annual rate established under section seventeen-a:

(1) In a case described in subsection (b)(2), from the date the Tax Commissioner receives the money to a date (to be determined by the Tax Commissioner) preceding the date of return by not more than thirty days; or

(2) In a case described in subsection (b)(3), from the date of the sale of the property to a date (to be determined by the Tax Commissioner) preceding the date of return by not more than thirty days.

§11-10-14. Overpayments; credits; refunds and limitations.

(a) Refunds or credits of overpayments. — In the case of overpayment of any tax (or fee), additions to tax, penalties, or interest imposed by this article, or any of the other articles of this chapter, or of this code, to which this article is applicable, the Tax Commissioner shall, subject to the provisions of this article, refund to the taxpayer the amount of the overpayment or, if the taxpayer so elects, apply the same as a credit against the taxpayer’s liability for the tax for other periods. The refund or credit shall include any interest due the taxpayer under §11-10-17 of this code.

(b) Refunds or credits of gasoline and special fuel excise tax or motor carrier road tax. — Any person who seeks a refund or credit of gasoline and special fuel excise taxes under §11-14-10, §11-14-11, §11-14-12, §11-14A-9, or §11-14A-11 of this code, or of motor fuel excise tax under §11-14C-9 of this code shall file his or her claim for refund or credit in accordance with the provisions of the applicable sections. The 90-day time period for determination of claims for refund or credit provided in subsection (d) of this section does not apply to these claims for refund or credit: Provided, That claims for refund or credit of the motor fuel excise tax under §11-14C-9 of this code are subject to the 90-day time period provided in subsection (d) of this section: Provided, however, That claims for refund or credit of the motor fuel excise tax under §11-14C-9 of this code made by the United States government or unit or agency thereof, any municipal government or any agency thereof, or any county board of education made pursuant to §11-14C-9(c)(1), (2), (3), (4), (5), and (6) of this code will be subject to a 30-day time period.

(c) Claims for refund or credit. — No refund or credit shall be made unless the taxpayer has timely filed a claim for refund or credit with the Tax Commissioner. A person against whom an assessment or administrative decision has become final is not entitled to file a claim for refund or credit with the Tax Commissioner as prescribed herein. The Tax Commissioner shall determine the taxpayer’s claim and notify the taxpayer in writing of his or her determination.

(d) Petition for refund or credit; hearing. —

(1) If the taxpayer is not satisfied with the Tax Commissioner’s determination of taxpayer’s claim for refund or credit, or if the Tax Commissioner has not determined the taxpayer’s claim within 90 days after the claim was filed, or six months in the case of claims for refund or credit of the taxes imposed by §11-21-1 et seq., §11-21A-1 et seq., and §11-24-1 et seq. of this code, after the filing thereof, the taxpayer may file, with the Tax Commissioner, either personally or by certified mail, a petition for refund or credit: Provided, That no petition for refund or credit may be filed more than 60 days after the taxpayer is served with notice of denial of taxpayer’s claim: Provided, however, That after December 31, 2002, the taxpayer shall file the petition with the Office of Tax Appeals in accordance with §11-10A-9 of this code.

(2) The petition for refund or credit shall be in writing, verified under oath by the taxpayer, or by taxpayer’s duly authorized agent having knowledge of the facts, and set forth with particularity the items of the determination objected to, together with the reasons for the objections.

(3) When a petition for refund or credit is properly filed, the procedures for hearing and for decision applicable when a petition for reassessment is timely filed shall be followed.

(e) Appeal. — An appeal from the Office of Tax Appeals" administrative decision upon the petition for refund or credit may be taken by the taxpayer in the same manner and under the same procedure as that provided for judicial review of an administrative decision on a petition for reassessment, but no bond is required of the taxpayer. An appeal from the administrative decision of the Office of Tax Appeals on a petition for refund or credit, if taken by the taxpayer, shall be taken as provided in §11-10A-19 of this code.

(f) Decision of the court. — Where the appeal is to review an administrative decision on a petition for refund or credit, the court may determine the legal rights of the parties but in no event shall it enter a judgment for money.

(g) Refund made or credit established. — The Tax Commissioner shall promptly issue his or her requisition on the treasury or establish a credit, as requested by the taxpayer, for any amount finally administratively or judicially determined to be an overpayment of any tax (or fee) administered under this article. The Auditor shall issue his or her warrant on the Treasurer for any refund requisitioned under this subsection payable to the taxpayer entitled to the refund, and the Treasurer shall pay the warrant out of the fund into which the amount refunded was originally paid: Provided, That refunds of personal income tax may also be paid out of the fund established pursuant to §11-21-93 of this code.

(h) Forms for claim for refund or a credit; where return constitutes claim. — The Tax Commissioner may prescribe by rule or regulation the forms for claims for refund or credit. Notwithstanding the foregoing, where the taxpayer has overpaid the tax imposed by §11-21-1 et seq., §11-21A-1 et seq., §11-23-1 et seq., or §11-24-1 et seq. of this code, a return signed by the taxpayer which shows on its face that an overpayment of tax has been made constitutes a claim for refund or credit.

(i) Remedy exclusive. — The procedure provided by this section constitutes the sole method of obtaining any refund, credit, or any tax (or fee) administered under this article, it being the intent of the Legislature that the procedure set forth in this article is in lieu of any other remedy, including the Uniform Declaratory Judgments Act embodied in §55-13-1 et seq. of this code, and §11-1-2a of this code.

(j) Applicability of this section. — The provisions of this section apply to refunds or credits of any tax (or fee), additions to tax, penalties or interest imposed by this article, or any article of this chapter, or of this code, to which this article is applicable.

(k) Erroneous refund or credit. — If the Tax Commissioner believes that an erroneous refund has been made or an erroneous credit has been established, he or she may proceed to investigate and make an assessment within the period prescribed in §11-10-15 of this code or institute civil action to recover the amount of the refund or credit, within two years from the date the erroneous refund was paid or the erroneous credit was established, except that the assessment may be issued or civil action brought within two years from the date if it appears that any portion of the refund or credit was induced by fraud or misrepresentation of a material fact.

(l) Limitation on claims for refund or credit. —

(1) General rule. — Whenever a taxpayer claims to be entitled to a refund or credit of any tax (or fee), additions to tax, penalties or interest imposed by this article, or any article of this chapter, or of this code, administered under this article, paid into the treasury of this state, the taxpayer shall, except as provided in subsection (d) of this section, file a claim for refund, or credit, within three years after the due date of the return in respect of which the tax (or fee) was imposed, determined by including any authorized extension of time for filing the return, or within two years from the date the tax (or fee) was paid, whichever of the periods expires the later, or if no return was filed by the taxpayer, within two years from the time the tax (or fee) was paid, and not thereafter.

(2) Extensions of time for filing claim by agreement. — The Tax Commissioner and the taxpayer may enter into a written agreement to extend the period within which the taxpayer may file a claim for refund or credit, which period shall not exceed two years. The period agreed upon may be extended for additional periods not in excess of two years each by subsequent agreements in writing made before expiration of the period previously agreed upon.

(3) Special rule where agreement to extend time for making an assessment. — Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, if an agreement is made under §11-10-15 of this code extending the time period in which an assessment of tax can be made, then the period for filing a claim for refund or credit for overpayment of the same tax made during the periods subject to assessment under the extension agreement are also extended for the period of the extension agreement plus 90 days.

(4) Overpayment of federal tax. — Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, in the event of a final determination by the United States Internal Revenue Service or other competent authority of an overpayment in the taxpayer’s federal income or estate tax liability, the period of limitation upon claiming a refund reflecting the final determination in taxes imposed by §11-21-1 et seq., §11-21A-1 et seq., and §11-24-1 et seq. of this code may not expire until six months after the determination is made by the United States Internal Revenue Service or other competent authority.

(5) Tax paid to the wrong state. — Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, when an individual, or the fiduciary of an estate, has in good faith erroneously paid personal income tax, estate tax or sales tax, to this state on income or a transaction which was lawfully taxable by another state and, therefore, not taxable by this state, and no dispute exists as to the jurisdiction to which the tax should have been paid, then the time period for filing a claim for refund, or credit, for the tax erroneously paid to this state does not expire until 90 days after the tax is lawfully paid to the other state.

(6) Exception for gasoline and special fuel excise tax, motor fuel excise tax and motor carrier road tax. — This subsection does not apply to refunds or credits of gasoline and special fuel excise tax, motor carrier road tax, or motor fuel excise tax sought under §11-14-1 et seq., §11-14A-1 et seq., or §11-14C-1 et seq. of this code.

§11-10-14a. Tax refund check-off programs.

(a) Except as otherwise provided in this section, or in another section of this code enacted after June 30, 1991, all voluntary tax refund check-off programs expire and do not apply to any personal income tax returns required to be filed after June 30, 1991: Provided, That if any such program has an earlier expiration date specifically provided by law, the earlier expiration date applies.

(b) The Tax Commissioner shall cause each West Virginia personal income tax return form to contain a provision by which a taxpayer, and his or her spouse if a joint return, may donate a portion or all of his or her tax refund to the West Virginia Department of Veterans Assistance for purposes of providing nursing home and health care for aged and disabled veterans in the West Virginia Veterans Home. The total amount of donations received under this subsection shall be deposited in the State Treasury to the credit of the Department of Veterans Assistance to be used exclusively for purposes of providing nursing home and health care for aged and disabled veterans in the West Virginia Veterans Home.

(c) The Tax Commissioner shall cause each West Virginia personal income tax return form to contain a provision by which a taxpayer, and his or her spouse if a joint return, may donate a portion or all of his or her tax refund to the Donel C. Kinnard Memorial State Veterans Cemetery for purposes of operating and maintaining the cemetery. The total amount of donations received under this subsection shall be deposited in the State Treasury to the credit of the Department of Military Affairs and Public Safety to be used exclusively for purposes of operating and maintaining the Donel C. Kinnard Memorial State Veterans Cemetery.

§11-10-14b. Monetary remedies for overpayments due to unconstitutionality.

(a) Legislative findings and purpose. -- Taxpayers who successfully challenge the Constitutionality of state taxes may be entitled to retroactive monetary relief for the amount of their overpayments. Because there may be many of such taxpayers and the period of retroactivity may be extensive, the amount of monetary relief owed to such taxpayers may represent a considerable and unpredictable risk to the fiscal integrity and stability of this state. This section provides the Tax Commissioner with greater flexibility and discretion in the manner in which such relief may be provided.

(b) Legislative intent and rules of construction.

(1) Legislative intent. -- It is the intent of the Legislature that this section shall be construed to preserve the fiscal integrity and stability of the State of West Virginia and to provide appropriate relief to the extent required by this section and the state and federal Constitutions. The provisions of section fourteen of this article shall remain in full force and effect with regard to overpayments of tax resulting from any reason including unconstitutionality.

(2) Rules of construction.

(A) The remedies provided by this section and section fourteen of this article are exclusive and shall be in lieu of any and all remedies provided at common law or by other statutes.

(B) Because all legislative enactments are presumptively Constitutional and because the Tax Commissioner is without authority to determine the Constitutionality of tax laws, other than through the courts, no cause of action shall exist against said Tax Commissioner, in his or her individual capacity, for damages, attorney's fees or court costs incurred in litigating the Constitutionality of any tax law administered under this article which is subsequently determined to be unconstitutional.

(C) A holding of retroactivity shall not be deemed to override any statutes of limitation which have run, or to require relief for any cases which are res judicata.

(c) Criteria for retroactive monetary relief. -- No person may be granted relief based on a claim of unconstitutionality, unless the decision that the tax or its application is unconstitutional also mandates retroactive monetary relief and is a final decision of a court of competent jurisdiction of this state or a federal court having appropriate jurisdiction. A final decision is one for which the availability of an appeal has been exhausted, and the time for filing a petition has elapsed or the petition has been finally denied.

(d) Amount of relief; interest. -- The amount of monetary relief shall be comprised solely of the amount of overpayment, together with interest, and shall not include damages of any kind, court costs, or attorney's fees except when ordered by a court of competent jurisdiction. Interest shall be paid as provided by section seventeen of this article.

(e) Type and manner of providing relief. -- In addition to the powers already provided in this article, the Tax Commissioner may, in his or her discretion and in accordance with guidelines published by him or her in the state Register, provide retroactive monetary relief by any one or combination of the following remedies:

(1) Refunds. -- The total amount of any refund to be paid to a taxpayer may be paid either in one lump sum or in periodic installments. Installment payments shall be paid in full not later than three years from the date of the final decision of entitlement to retroactive monetary relief: Provided, That the periodic installment method for payment may only be used when the total amount of any refund to an individual taxpayer exceeds $1,000 or the aggregate amount of all refunds resulting from a final decision of unconstitutionality of a particular tax is estimated to be more than $5 million.

(2) Credits. -- With the taxpayer's consent, the Tax Commissioner may issue an overpayment credit for tax.

(f) Finality of relief. -- The issuance of refunds or credits shall constitute complete and final settlement of all entitlements based on the claim or claims for which such refunds or credits were made.

§11-10-14c. Prompt payment of refunds of personal income taxes.

(a) General rule. -- The net amount of a lawful, mathematically correct, uncontested claim for refund of any tax imposed by article twenty-one of this chapter shall be refunded to the taxpayer within ninety days after such a claim for refund is filed with the Tax Commissioner. If the fund is not made to a taxpayer within the ninety days, the Tax Commissioner shall pay interest, at the rate specified in section seventeen-a of this article, for the period commencing with the date the claim for refund was received by the Tax Commissioner until the date the state warrant for the refund amount is issued, notwithstanding any provisions of section seventeen of this article to the contrary.

(b) Definitions. -- For purposes of this section:

(1) A claim for refund is "filed with the Tax Commissioner" on the date it is physically received by the state Tax Division.

(2) A "lawful, mathematically correct, uncontested claim for refund" is one that is timely filed; is signed by the appropriate taxpayer or taxpayers; is mathematically correct; is supported by any necessary documentation; and appears on its face to be correct.

(c) The payment of a claim for refund under this section shall not bar the Tax Commissioner from later issuing an assessment to recover any amount erroneously refunded, plus statutory interest and any applicable additions to tax, within two years after the date the refund was made: Provided, That if the refund or any part thereof was obtained by fraud, the assessment may be made at any time.

(d) This section shall apply only to claims for refund of personal income taxes filed after January 1, 1997.

§11-10-14d. Prompt payment of refunds of corporation net income taxes.

(a) General rule. -- The net amount of a lawful, mathematically correct, uncontested claim for refund of any tax imposed by article twenty-four of this chapter shall be refunded to the taxpayer within six months after a claim for refund is filed with the Tax Commissioner. If the refund is not made to a taxpayer within this period, the Tax Commissioner shall pay interest, at the rate specified in section seventeen-a of this article, for the period commencing with the date the claim for refund was received by the Tax Commissioner until the date the state warrant for the refund amount is issued, notwithstanding any provisions of section seventeen of this article to the contrary.

(b) Definitions. -- For purposes of this section:

(1) A claim for refund is "filed with the Tax Commissioner" on the date it is physically received by the state Tax Division.

(2) A "lawful, mathematically correct, uncontested claim for refund" is one that is timely filed; is signed by the appropriate taxpayer or taxpayers; is mathematically correct; is supported by any necessary documentation; and appears on its face to be correct.

(c) The payment of a claim for refund under this section shall not bar the Tax Commissioner from later issuing an assessment to recover any amount erroneously refunded, plus statutory interest and any applicable additions to tax, within two years after the date the refund was made: Provided, That if the refund or any part thereof was obtained by fraud, the assessment may be made at any time.

(d) This section shall apply only to claims for refund of corporation net income taxes filed after January 1, 1997.

§11-10-15. Limitations on assessment.

(a) General rule. — The amount of any tax, additions to tax, penalties, and interest imposed by this article or any of the other articles of this chapter to which this article is applicable shall be assessed within three years after the date the return was filed (whether or not such return was filed on or after the date prescribed for filing): Provided, That in the case of a false or fraudulent return filed with the intent to evade tax, or in case no return was filed, the assessment may be made at any time: Provided, however, That if a taxpayer fails to disclose a listed transaction, as defined in Section 6707A of the Internal Revenue Code, on the taxpayer’s state or federal income tax return, an assessment may be made at any time not later than six years after the due date of the return required under §11-21-1 et seq., or §11-24-1 et seq., or §11-21A-1 et seq. of this code for the same taxable year or after such return was filed, or not later than three years after an amended return is filed, whichever is later.

(b) Time return deemed filed. —

(1) Early return. — For purposes of this section, a return filed before the last day prescribed by law, or by rules promulgated by the Tax Commissioner for filing thereof, shall be considered as filed on such last date;

(2) Returns executed by Tax Commissioner. — The execution of a return by the Tax Commissioner pursuant to the authority conferred by §11-10-5c of this code shall not start the running of the period of limitations on assessment and collection.

(c) Exceptions. — Notwithstanding subsection (a) of this section:

(1) Extension by agreement. — The Tax Commissioner and the taxpayer may enter into written agreements to extend the period within which the Tax Commissioner may make an assessment against the taxpayer which period shall not exceed two years. The period so agreed upon may be extended for additional periods not in excess of two years each by subsequent agreements in writing made before the expiration of the period previously agreed upon;

(2) Deficiency in federal tax. — Notwithstanding subsection (a) of this section, in the event of a final determination by the United States Internal Revenue Service or other competent authority of a deficiency in the taxpayer’s federal income tax liability, the period of limitation, upon assessment of a deficiency reflecting such final determinations in the taxes imposed by §11-21-1 et seq., §11-21A-1 et seq., and §11-24-1 et seq. of this code, may not expire until 90 days after the Tax Commissioner is advised of the determination by the taxpayer as provided in §11-21-59 and §11-24-20 of this code, or until the period of limitations upon assessment provided in subsection (a) of this section has expired, whichever expires the later, and regardless of the tax year of the deficiency;

(3) Special rule for certain amended returns. — Where, within the 60-day period ending on the day on which the time prescribed in this section for the assessment of any tax for any taxable year would otherwise expire, the Tax Commissioner receives a written document signed by the taxpayer showing that the taxpayer owes an additional amount of such tax for such taxable year, the period for the assessment of such additional amount shall not expire before the day 60 days after the day on which the Tax Commissioner receives such document;

(4) Net operating loss or capital loss carrybacks. — In the case of a deficiency attributable the application by the taxpayer of a net operating loss carryback or a capital loss carryback (including that attributable to a mathematical or clerical error in application of the loss carryback) such deficiency may be assessed at any time before expiration of the period within which a deficiency for the taxable year of the net operating loss or net capital loss which results in such carryback may be assessed;

(5) Certain credit carrybacks. — In the case of a deficiency attributable to the application to the taxpayer of a credit carryback (including that attributable to a mathematical or clerical error in application of the credit carryback) such deficiency may be assessed at any time before expiration of the period within which a deficiency for the taxable year of the unused credit which results in such carryback may be assessed, or with respect to any portion of a credit carryback from a taxable year attributable to a net operating loss carryback, capital loss carryback, or other credit carryback from a subsequent taxable year, at any time before expiration of the period within which a deficiency for such subsequent taxable year may be assessed. The term "credit carryback" means any carryback allowed under §5E-1-8 of this code;

(6) Overpayment of tax credited against payment of another tax. — In the event of a final determination that a taxpayer owes less tax than the amount paid by the taxpayer, and the amount paid was allowed as a credit against a tax administered under this article, the period of limitation upon assessment of a deficiency in the payment of such other tax due to the overstating of the allowable credit, may not expire until 90 days after the Tax Commissioner receives written notice from the taxpayer advising the Tax Commissioner of the final determination reducing the taxpayer’s liability for a tax allowed as a credit against a tax administered under this article, or until the period of limitations upon assessment provided in subsection (a) of this section has expired, whichever expires the later, and regardless of the tax year of the deficiency.

(d) Cases under bankruptcy code. — The running of limitations provided in subsection (a) of this section, on the making of assessments, or provided in §11-10-16 of this code, on collection, shall, in a case under Title 11 of the United States Code, be suspended for the period during which the Tax Commissioner is prohibited by reason of such case from making the assessment or from collecting the tax and:

(1) For assessment, 60 days thereafter; and

(2) For collection, six months thereafter.

§11-10-16. Limitations on collection.

(a) Where assessment is issued. — Every proceeding instituted by the Tax Commissioner for the collection of the amount found to be due under an assessment which has become final of any tax, additions to tax, penalties or interest imposed by this article or any of the other articles of this chapter to which this article is applicable, irrespective of whether the proceeding  is instituted in a court or by utilization of other methods provided by law for the collection of such tax, additions to tax, penalty or interest, shall be brought or commenced within 10 years after the date on which such assessment has become final.

(b) Where assessment is not issued. — Every proceeding instituted by the Tax Commissioner for the collection of the amount determined to be due by methods provided by law other than the issuance of an assessment, of any tax, additions to tax, penalties, or interest imposed by this article or any of the other articles of this chapter to which this article is applicable, irrespective of whether the proceeding is instituted in a court or by utilization of other methods provided by law for the collection of such tax, additions to tax, penalties or interest, shall be brought or commenced within 10 years after the date on which the taxpayer filed the annual return required to be filed by any of the articles of this code to which §11-10-1 et seq. of this code is applicable and, if no annual return is required, such 10-year period shall begin on the day after the latest periodical return required to be filed in any year is filed.

(c) Extension of time for institutions of collection proceedings by agreement. — The Tax Commissioner and the taxpayer may enter into written agreement to extend the period within which the Tax Commissioner may institute proceedings for the collection of the amount found to be due under an assessment which has become final, or the amount determined to be due by methods provided by law other than the issuance of the assessment, of any tax, additions to tax, penalties or interest imposed by this article or any of the other articles of this code to which this article is applicable. This period may not exceed two years. The period so agreed upon may be extended for additional periods not in excess of two years each by subsequent agreements in writing made before the expiration of the period previously agreed upon.

An extension of a tax lien, including an extension agreed to in writing by the taxpayer and the Tax Commissioner, beyond 10 years is not effective under the provisions of this section unless the extension is docketed by the Tax Commissioner in the office of the county commission as is required under §38-10C-1 et seq. of this code for docketing tax liens.

§11-10-17. Interest.

(a) Underpayments. -– If any amount of a tax administered under this article is not paid on or before the last date prescribed for payment, interest on the amount at the rate of eight percent per annum shall be paid for the period from the last date to the date paid: Provided, That on and after July 1, 1986, interest on underpayments shall be paid at the annual rate established under section seventeen-a of this article, from the period beginning on July 1, or from the last day prescribed for payment, whichever is the later, to the date paid, regardless of when liability for the tax arose: Provided, however, That on and after July 1, 2002, interest on underpayments shall be paid at an annual rate of one and one-half percent above the annual rate established under section seventeen-a of this article, from the period beginning on July 1, or from the last day prescribed for payment, whichever is the later, to the date paid, regardless of when liability for the tax arose. For purposes of this subsection, the last date prescribed for payment shall be the due date of the return and shall be determined without regard to any extension of time for payment.

(b) Last date for payment not otherwise prescribed. -- In the case of taxes payable by stamp or other indicia of tax payment and in all other cases in which the last day for payment is not otherwise prescribed, the last date for payment shall be considered to be the date the liability for tax arises and in no event shall be later than the date notice and demand for payment of the tax is made by the Tax Commissioner.

(c) Erroneous refund or credit. -- If any refund is made or credit is established upon an erroneous claim for refund or credit, interest on the amount refunded or credited at the annual rate established under section seventeen-a of this article, shall be paid by the claimant from the date the refund was made or the credit was taken to the date the amount is recovered.

(d) Overpayments. -- Interest shall be allowed and paid at the annual rate of eight percent per annum upon any amount which has been finally administratively or judicially determined to be an overpayment in respect of each tax administered under this article except the taxes imposed by articles twelve, fourteen and fourteen-a of this chapter: Provided, That on and after July 1, 1986, interest on overpayments shall be paid at the annual rate established under section seventeen-a of this article, from July 1, or the date the claim for refund or credit is filed, whichever is the later, regardless of when the tax was paid. The interest shall be allowed and paid for the period commencing with the date of the filing by the taxpayer of a claim for refund or credit with the Tax Commissioner and ending with the date of a final administrative or judicial determination of overpayment. The Tax Commissioner shall, within thirty days after the determination of entitlement to refund, issue his or her requisition or establish a credit as requested by the taxpayer. Whenever the Tax Commissioner fails or refuses to issue any requisition or establish the credit within said thirty-day period, the interest provided herein shall commence to accrue until performance by the Tax Commissioner. The acceptance of the refund check or credit shall be without prejudice to any right of the taxpayer to claim any additional overpayment and interest thereon.

(e) Applicable rules. -- For purposes of this section:

(1) No interest payable on tax refunded or credited within ninety days after claim for refund or credit is filed. -- In the event of the overpayment of any tax administered under this article, except the tax imposed by articles twenty-one and twenty-four of this chapter, where the Tax Commissioner issues his or her requisition or establishes a credit as requested by the taxpayer within ninety days after the date of the filing by the taxpayer of a claim for refund or credit, no interest shall be allowed under this section.

(2) No interest payable where personal income tax and corporation net income tax refunded or credited within six months after claim for refund or credit is filed. -- In the event of the overpayment of the tax imposed by articles twenty-one and twenty-four of this chapter, where the Tax Commissioner issues his or her requisition or establishes a credit as requested by the taxpayer within six months after the date of the filing by the taxpayer of a claim for refund or credit, no interest shall be allowed under this section.

(3) Interest treated as tax. -- Interest prescribed under this section on any tax shall be collected and paid in the same manner as taxes.

(4) No interest on interest. -- No interest under this section shall be imposed on the interest provided by this section prior to July 1, 1986.

(5) Interest on penalties or additions to tax. -- Interest shall be imposed under subsection (a) of this section on any assessable penalty or additions to tax only if the penalty or additions to tax is not paid within fifteen days from the date of notice and demand therefor, and in that case, interest shall be imposed only for the period from the date of the notice and demand to the date of payment.

(6) Payments made within fifteen days after notice and demand. -- If notice and demand is made for payment of any amount, and if the amount is paid within fifteen days after the date of the notice and demand, interest under this section on the amount so paid may not be imposed for the period after the date of the notice and demand.

(7) Limitation on collection. -- Interest prescribed under this section on any tax may be collected at any time during the period within which the tax to which the interest relates may be collected.

(8) Exception as to estimated tax. -- This section does not apply to any failure to pay any estimated tax required to be paid under articles thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three or twenty-four of this chapter.

§11-10-17a. Determination of rate of interest.

(a) In general. -- The annual rate of interest established under this section shall be such adjusted rate as is established by the Tax Commissioner under subsections (b) and (c) : Provided, That for taxable years beginning prior to January 1, 2017, such annual rate shall not be less than eight percent per annum.

(b) Adjustments of interest rate prior to January 1, 2017.

(1) Establishment of adjusted rate. -- If the adjusted prime rate charged by banks (rounded to the nearest full percent):

(A) During the six-month period ending on September 30, of any calendar year; or

(B) During the six-month period ending on the thirty-first day of March of any calendar year, differs from the interest rate in effect under this section on either such date, respectively, then the Tax Commissioner shall establish, within fifteen days after the close of the applicable six-month period, an adjusted rate of interest equal to such adjusted prime rate.

(2) Effective date of adjustment. -- Any such adjusted rate of interest established under paragraph (1) shall become effective:

(A) On January 1, of the succeeding year in the case of an adjustment attributable to paragraph (1)(A) above; and on

(B) The first day of July of the same year in the case of an adjustment attributable to paragraph (1)(B).

(c) Adjustment of interest rate after December 31, 2016. -- Each year, the Tax Commissioner shall fix the adjusted rate to equal the adjusted prime rate charged by banks (rounded to the nearest hundredth of a percent) plus three percentage points per annum as of the first business day of December, for which an adjusted prime rate is determined, in the preceding year and it shall be effective January 1.

(d) Definition of "adjusted prime rate." -- For purposes of subsections (b) and (c), the term "adjusted prime rate charged by banks" means the average predominant prime rate quoted by commercial banks to large businesses, as determined by the board of Governors of the Federal Reserve System.

(e) Application of change in interest rate.

(1) To deficiencies. -- The interest rate in effect at the time of assessment or when the payment of delinquent tax is made shall not be applied retroactively to the date the tax was due. Interest on moneys owed by the taxpayer shall be the sum of the interest amounts calculated for each year or part thereof from the date prescribed for payment (determined without regard to any extensions) to the date the payment is made using the interest rate in effect for each respective year or part thereof.

(2) To overpayments. -- The interest rate in effect at the time an overpayment of tax is refunded, or a credit therefor is established, by the Tax Commissioner, shall not be applied retroactively to the date the claim for refund or credit was filed with the Tax Commissioner. Interest on moneys owed to taxpayers shall be the sum of the interest amounts calculated for each year or part thereof from date the claim for refund or credit was filed with the Tax Commissioner until date the refund is paid or credit therefor is established (such dates determined as provided in section seventeen) using the interest rate in effect for each respective year or part thereof.

§11-10-18. Additions to tax.

(a) Failure to file tax return or pay tax due. --

(1) In the case of failure to file a required return of any tax administered under this article on or before the date prescribed for filing such return (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return five percent of the amount of such tax if the failure is for not more than one month, an additional five percent for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five percent in the aggregate: Provided, That this addition to tax shall be imposed only on the net amount of tax due;

(2) In the case of failure to pay the amount shown as tax, on any required return of any tax administered under this article on or before the date prescribed for payment of such tax (determined with regard to any extension of time for payment), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount shown as tax on such return one half of one percent of the amount of such tax if the failure is for not more than one month, with an additional one half of one percent for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five percent in the aggregate: Provided, That the addition to tax shall be imposed only on the net amount of tax due;

(3) In the case of failure to pay any amount in respect to any tax required to be shown on a return specified in paragraph (1) which is not so shown within fifteen days of the date of notice and demand therefore, unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount of tax stated in such notice and demand one half of one percent of the amount of each tax if the failure is for not more than one month, with an additional one half of one percent for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five percent in the aggregate: Provided, That this addition to tax shall be imposed only on the net amount of tax due.

(b) Limitation and special rule. --

(1) Additions under more than one paragraph:

(A) With respect to any return, the amount of the addition under paragraph (1) of subsection (a) shall be reduced by the amount of the addition under paragraph (2) of subsection (a) for any month to which an addition to tax applies under both paragraphs (1) and (2);

(B) With respect to any return, the maximum amount of the addition permitted under paragraph (3) of subsection (a) shall be reduced by the amount of the addition under paragraph (1) of subsection (a) (determined without regard to the last sentence of such subsection) which is attributable to the tax for which the notice and demand is made and which is not paid within fifteen days of notice and demand.

(2) Amount of tax shown more than amount required to be shown. -- If the correct amount of tax due is less than the amount shown on the return, paragraphs (1) and (2) of subsection (a) shall only apply to the lower amount.

(3) Exception for estimated tax. -- Subsection (a) shall not apply to any failure to pay any estimated tax.

(c) Negligence or intentional disregard of rules and regulations. -- If any part of any underpayment of any tax administered under this article is due to negligence or intentional disregard of rules (but without intent to defraud), there shall be added to the amount of tax due five percent of the amount of such tax if the underpayment due to negligence or intentional disregard of rules is for not more than one month, with an additional five percent for each additional month or fraction thereof during which such underpayment continues, not exceeding twenty-five percent in the aggregate: Provided, That these additions to tax shall be imposed only on the net amount of tax due and shall be in lieu of the additions to tax provided in subsection (a), and the Tax Commissioner shall state in his or her notice of assessment the reason or reasons for imposing this addition to tax with sufficient particularity to put the taxpayer on notice regarding why it was assessed.

(d) False or fraudulent return. -- In the case of the filing of any false or fraudulent return with intent to evade any such tax, or in the case of willful failure to file a return with intent to evade tax, there shall be added to the tax due an amount equal to fifty percent thereof which shall be in lieu of the additions to tax provided in subsections (a) and (c). The burden of proving fraud, willfulness or intent to evade tax shall be upon the Tax Commissioner. In the case of a joint personal income tax return under article twenty-one of this chapter, this subsection shall not apply with respect to the tax of the spouse unless some part of the underpayment is due to the fraud of such spouse.

(e) Additions to tax treated as tax. -- Additions to tax prescribed under this section on any tax shall be assessed, collected and paid in the same manner as taxes.

(f) Penalties for promoting abusive tax shelters and for failure to report listed transactions. --

(1) A penalty is hereby imposed on every person who engages in activities promoting abusive tax shelters described in Section 6700(a) of the Internal Revenue Code of 1986, or any subsequent corresponding provisions of the Internal Revenue Code, as from time to time amended, and who is subject to a penalty imposed thereunder, whether or not such penalty has been imposed, where such activities affect tax returns required to be filed with the Tax Commissioner. The amount of the penalty imposed hereunder shall be equal to fifty percent of the gross income derived from activities by such person which are subject to that penalty under paragraph (2)(A) of said section 6700(a) for making a false or fraudulent statement; and shall be the lesser of $1,000 or one hundred percent of such gross income when the activity is subject to that penalty under paragraph (1) of said section 6700(a).

(2) For audits of returns commencing on or after July 1, 2006, when it appears that any part of the deficiency for which an assessment is made is due to failure to disclose a listed transaction or a reportable transaction other than a listed transaction, as the terms are defined in Section 6707A of the Internal Revenue Code of 1986, or any subsequent corresponding provision of the Internal Revenue Code, as from time to time amended, on the taxpayer's federal income tax return, there shall be imposed a penalty. In the case of a listed transaction the amount of the penalty shall be equal to seventy percent of the amount of the deficiency, and in the case of other reportable transactions the amount of the penalty shall be equal to thirty-five percent of the amount of the deficiency.

(g) Coordination with other penalties. -- Unless provided otherwise by rules, the penalties imposed by this section are in addition to any other penalty imposed by this article or article ten-e of this chapter.

§11-10-18a. Additions to tax for failure to pay estimated income or business franchise tax.

(a) Additions to tax. -- Except as otherwise provided in this section, in the case of any underpayment of estimated tax, there shall be added to the tax due for the taxable year, under article twenty-one, twenty-three or twenty-four of this chapter, an amount determined by applying the rate established under section seventeen or seventeen-a of this article, as appropriate for the taxable year, to the amount of the underpayment of estimated tax, for the period of the underpayment.

(b) Amount of underpayment. -- For purposes of subsection (a) of this section, the amount of the underpayment shall be the excess of the amount determined under subdivision (1) of this subsection over the amount determined under subdivision (2) of this subsection.

(1) The amount of the installment required to be paid on or before the due date for the installment, if the estimated tax due for the taxable year were an amount equal to ninety percent of the tax shown on the annual return for the taxable year divided by the number of installments taxpayer was required to make for the taxable year, or, if no return was filed, ninety percent of the tax for such year divided by the number of installment payments taxpayer was required to make for the taxable year.

(2) The amount, if any, of the installment paid on or before the last date prescribed for payment of that installment.

(c) Period of underpayment. -- The period of underpayment of an installment shall run from the date the installment was required to be paid (due date) to whichever of the following dates is the earlier:

(1) The due date of the annual return following the close of the taxable year for which the installment was due (determined without regard to any extension of time for filing such annual return); or

(2) With respect to any portion of the underpayment, the date on which such portion is paid. For purposes of this subdivision, a payment of estimated tax shall be credited against unpaid required installments in the order in which such installments are required to be paid.

(d) Exception. -- Notwithstanding the provisions of the preceding subsections, the additions to tax with respect to any underpayment of any installment shall not be imposed if the total amount of all payments of estimated tax made on or before the last date prescribed for the payment of such installment equals or exceeds the amount which would have been required to be paid on or before such date if the estimated tax were whichever of the following is lesser:

(1) Prior year's tax. -- One hundred percent of the tax shown on the return of the taxpayer for the preceding taxable year, if a return showing a liability for tax was filed by the taxpayer for the preceding taxable year and such preceding year was a taxable year of twelve months;

(2) Annualized tax. -- In the case of any required installment, if the taxpayer establishes that the annualized income installment is less than the amount determined under subdivision (1) of this subsection and under subsection (b) of this section, then the amount of such required installment shall be the annualized income installment. For purposes of this subdivision, there shall be four required installments for each taxable year and the "annualized income installment" is the difference (if any) determined by subtracting the amount determined under paragraph (B) of this subdivision from the amount determined under the appropriate clause of paragraph (A) of this subdivision. When making these computations, the rules in paragraph (C) of this subdivision shall be followed:

(A) (i) Corporations. -- An amount equal to the applicable percentage of the tax of a corporation for the taxable year computed by placing on an annualized basis its taxable income:

(I) For the first three months of the taxable year, in the case of the first installment;

(II) For the first three months of or the first five months of the taxable year, in the case of the second installment;

(III) For the first six months or the first eight months of the taxable year, in the case of the third installment; and

(IV) For the first nine months or for the first eleven months of the taxable year, in the case of the fourth installment.

(ii) Individuals. -- An amount equal to the applicable percentage of the tax of an individual for the taxable year computed by placing on an annualized basis the taxable income of the individual for months in the taxable year ending before the due date for the installment.

(B) The aggregate amount of any prior required installments for the taxable year.

(C) Special rules. -- For purposes of this subdivision:

(i) Annualization. -- Taxpayer's taxable income shall be placed on an annualized basis in the same manner that taxable income is annualized for federal income tax purposes for the taxable year.

(ii) Applicable percentage. -- The applicable percentage shall be determined from the following table:

In the case of the following The applicable

required installments: percentage is:

1^st 22.5

2^nd 45

3^rd 67.5

4^th 90

(e) Additional exceptions. --

(1) Where tax amount is small. -- No addition to tax shall be imposed under subsection (a) of this section for any taxable year if the tax shown on the return for such taxable year (or, if no return is filed, the tax), reduced by the credit allowable for withheld tax, is less than $600.

(2) Where individual has no personal income tax liability for preceding taxable year. -- No addition to tax shall be imposed under subsection (a) of this section for any taxable year if:

(A) The individual's preceding taxable year was a taxable year of twelve months;

(B) The individual did not have any West Virginia personal income tax liability for the preceding taxable year;

(C) The individual was a citizen or resident of the United States throughout the preceding taxable year; and

(D) The individual's West Virginia personal income tax liability for the current taxable year is less than $5,000.

(3) Waiver in certain cases. -- No addition to tax shall be imposed under subsection (a) of this section with respect to any underpayment if and to the extent the Tax Commissioner determines that by reason of casualty, disaster or other unusual circumstances the imposition of such addition to tax would be against equity and good conscience.

(f) Tax computed after application of credits against tax. -- For purposes of this section, the term "tax" means the amount of any annual tax or fee administered under this article that is generally payable in two or more installment payments during the taxable year, minus the amount of credits allowable against such tax or fee, other than taxes withheld from the taxpayer under section seventy-one or seventy-one-a, article twenty-one of this chapter (relating to taxes withheld on wages, or from distributions of pass-through income to nonresident partners, S corporation shareholders or beneficiaries of an estate or trust).

(g) Application of section in case of personal income tax withheld on wages. --

(1) In general. -- For purposes of applying this section, the amount of the credit allowed under section seventy-one, article twenty-one of this chapter, for the taxable year shall be deemed a payment of estimated tax, and an equal part of such amount shall be deemed to have been paid on each installment payment due date for such taxable year, unless the taxpayer establishes the specific dates on which all amounts were actually withheld, in which case the amounts so withheld shall be deemed payments of estimated tax on the dates on which such amounts were actually withheld.

(2) Separate application. -- The taxpayer may apply subdivision (1) of this subsection separately with respect to:

(A) Wage withholding; and

(B) All other amounts withheld for which credit is allowed under section seventy-one, article twenty-one of this chapter.

(h) Application of section in case of income tax withheld by pass-through entities from distributions to nonresidents. -- For purposes of applying this section, the amount of credit allowed under section seventy-one-a, article twenty-one of this chapter to a nonresident distributee of a pass-through entity, shall be deemed to be a payment of estimated income tax for the taxable year of the nonresident distributee, and an equal part of such amount shall be deemed (only for purposes of this section) to have been paid on each installment due date for the taxable year of the distributee, unless the distributee establishes the dates on which all amounts were actually withheld, in which case the amounts so withheld shall be deemed payments of estimated tax on the dates on which such amounts were actually withheld.

(i) Special rule where personal income tax return filed on or before the thirty-first day of January. -- If on or before the last day of the first month following the end of the taxable year, the taxpayer files his or her annual personal income tax return for that taxable year and pays in full the amount computed on the return as payable, then no addition to tax shall be imposed under subsection (a) of this section with respect to any underpayment of the fourth required installment for that taxable year.

(j) Special rules for farmers. -- For purposes of this section, if an individual is a farmer for any taxable year:

(1) There is only one required installment for that taxable year;

(2) The due date for such installment is January 15, of the following taxable year;

(3) The amount of such installment shall be equal to the required annual payment determined under subsection (b) of this section by substituting "sixty-six and two-thirds percent" for "ninety percent"; and

(4) Subsection (h) of this section shall be applied:

(A) By substituting "March 1" for the phrase "the thirty-first day of January"; and

(B) By treating the required installment described in subdivision (1) of this subsection as the fourth required installment.

(k) Fiscal years and short years. --

(1) Fiscal years. -- In applying this section to a taxable year beginning on any date other than January 1, there shall be substituted, for the months specified in this section, the months of the fiscal year that correspond thereto.

(2) Short taxable year. -- The application of this section to taxable years of less than twelve months shall be in accordance with regulations prescribed by the Tax Commissioner.

(l) Reserved.

(m) Estates and trusts. --

(1) In general. -- Except as otherwise provided in this subsection, this section shall apply to any estate or trust.

(2) Exception for certain estates and certain trusts. -- With respect to any taxable year ending before the date two years after the date of the decedent's death, this section shall not apply to:

(A) The estate of such decedent; or

(B) Any trust all of which was treated for federal income tax purposes as owned by the decedent and to which the residue of the decedent's estate will pass under his or her will (or, if no will is admitted to probate, which is the trust primarily responsible for paying debts, taxes and expenses of administration).

(3) Special rule for annualizations. -- In the case of any estate or trust to which this section applies, paragraph (A), subdivision (2), subsection (d) of this section shall be applied by substituting "ending before the date one month before the due date of the installment" for the phrase "ending before the due date for the installment".

(n) Rules. -- The Tax Commissioner may prescribe such rules as the commissioner deems necessary to carry out the purpose of this section. This includes, but is not limited to, equitable rules allowing payment of adjusted seasonal installments in lieu of annualized income installments when the commissioner determines, based on known facts and circumstances, that payment of the annualized income installment will result in significant hardship to the taxpayer due to the seasonal nature of taxpayer's business, and equitable rules for payment of estimated personal income tax by an individual who is: (1) An employee; (2) employed in another state for some portion or all of the taxable year; and (3) required to pay personal income taxes to such other state on (or measured by) wages earned in that state, for which credit is allowed under section twenty, article twenty-one of this chapter.

(o) Effective date. --

(1) This section, as amended in the year 1992, shall apply to taxable years beginning after June 30, 1992, and this section as in effect on January 1, 1992, is preserved and shall apply to taxable years beginning before July 1, 1992.

(2) This section, as amended in the year 1993, shall apply to taxable years ending after June 30, 1993. For taxable years ending on or before such dates, the provisions of this section as in effect for such years are fully preserved.

(3) This section, as amended in the year 1998, shall apply to taxable years ending after June 30, 1998. For taxable years ending on or before these dates, the provisions of this section as in effect for those years are fully preserved.

§11-10-18b. Additions to tax for failure to pay any other estimated tax.

(a) General rule. - If a person required to make monthly or quarterly installment payments of any annual tax administered under this article, except the taxes imposed by article twenty-one, twenty-three or twenty-four [§§11-21-1 et seq., §§11-23-1 et seq. or §§11-24-1 et seq.] of this chapter fails to timely remit any installment payment of such tax or remits less than the amount of the required installment payment of such tax, there shall be added to the tax due for the taxable year an amount determined by applying the rate established under section seventeen or seventeen-a [§11-10-17 or §11-10-17a] of this article, as appropriate for the taxable year, to the amount of the underpayment of estimated tax, for the period of the underpayment.

(1) Quarterly installment payments. - If a person required to make quarterly installment payments of estimated tax timely pays estimated tax during the taxable year equal to seventy-five percent or more of such person's actual liability for such tax for that taxable year, no additions to tax shall be imposed under this section with respect to such payments. Estimated tax is paid timely if at least one fourth of the tax due for the taxable year is paid by the due date of each installment for that year.

(2) Monthly installment payments. - If a person required to make monthly installment payments of estimated tax timely pays estimated tax during the taxable year equal to at least eleven twelfths of such person's actual liability for such tax for that taxable year, no additions to tax shall be imposed under this section with respect to such payments. Estimated tax is paid timely if at least one twelfth of the tax due for the taxable year is paid by the due date of each installment for that year.

(b) Amount of underpayment. - For purposes of subsection (a) of this section, the amount of the underpayment shall be the excess of the amount that should have been paid by the due date of the required installment payment over the amount taxpayer remitted by the due date of the required installment payment.

(c) Period of underpayment. - The period of underpayment of any installment shall run from the date the installment was required to be paid (due date) to whichever of the following dates is the earlier:

(1) The due date of the annual return following the close of the taxable year for which the installment was due (determined without regard to any extension of time for filing such annual return); or

(2) With respect to any portion of the underpayment, the date on which such portion is paid. For purposes of this subdivision, a payment of estimated tax shall be credited against unpaid required installments in the order in which such installments are required to be paid.

(d) Waiver in certain cases. - No addition to tax shall be imposed under this section with respect to any underpayment of estimated tax if and to the extent the Tax Commissioner determines that:

(1) By reason of casualty, disaster or other unusual circumstances the imposition of such addition would be against equity and good conscience; or

(2) The amount of the installment payment remitted was determined using the statutory measure of the particular tax, as received or accrued under taxpayer's method of accounting during the period to which the installment payment relates, and the applicable rate of tax.

(e) Burden of proof. - The Tax Commissioner shall make his or her determination under subsection (d) of this section based upon relevant facts and circumstances established by the taxpayer through such proof or proofs as the Tax Commissioner may require.

(f) Short tax years. - This section shall apply to short tax years under rules promulgated by the Tax Commissioner.

(g) Effective date. - This section shall apply to taxable years ending after the thirtieth day of June, one thousand nine hundred ninety-three.

§11-10-19. Penalties.

(a) Failure to collect, account for, and pay over tax, or attempt to defeat or evade tax. -- Any person required to collect, account for and pay over any tax administered under this article, who willfully fails truthfully to account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable for a money penalty equal to the total amount evaded, or not collected, or not accounted for and paid over. No additions to tax shall be imposed under section eighteen for any offense to which this subsection is applicable.

(b) Fraudulent statement or failure to furnish statement to employees. -- Any person required under the provisions of section seventy-two, article twenty-one of this chapter to furnish a statement to an employee, who willfully furnishes a false or fraudulent statement, or who willfully fails to furnish a statement in the manner, at the time, and showing the information required by said section, or regulations prescribed thereunder, shall for each such failure be subject to a money penalty of $50.

(c) Fraudulent claim for refund or credit. -- In the case of the filing of a false or fraudulent claim for refund or credit with the intent to defraud this state, there shall be added to such amount erroneously refunded or credited a penalty equal to fifty percent thereof. No additions to tax shall be imposed under section eighteen for any offense to which this subsection is applicable. The burden of proving fraud or intent to defraud shall be upon the Tax Commissioner.

(d) Collection of penalty. -- Any money penalty may be collected in the same way as the tax imposed by this article.

§11-10-19a. Failure to file correct information returns.

(a) Imposition of penalty. -- In addition to any criminal penalty imposed by article nine of this chapter for willful failure to file required return or supply information or for knowingly filing false or fraudulent return, in the case of a failure described in subsection (b) by any person with respect to an information return, such person shall pay a penalty of $50 for each information return with respect to which such failure occurs, but the total amount imposed by this section on such person for all such failures during any calendar year shall not exceed $100,000.

(b) Failures subject to penalty. -- For purposes of subsection (a), the failures described in this subsection are:

(1) Any failure to file an information return with the Tax Commissioner on or before the required filing date; and

(2) Any failure to include all of the information required to be shown on the return or the inclusion of incorrect information.

(c) Reduction of penalty where correction in specified period. --

(1) Correction within thirty days. -- If any failure described in subsection (b) is corrected on or before the day, thirty days after the required filing date, the penalty imposed by subsection (a) shall be $15 in lieu of $50, and the total amount imposed on the person for all such failures during any calendar year which are so corrected shall not exceed $25,000.

(2) Failures corrected by August first. -- If any failure described in subsection (b) is corrected after the thirtieth day referred to in subdivision (1) of this subsection but on or before August 1, of the calendar year in which the required filing date occurs, the penalty imposed by subsection (a) shall be calculated using $30 in lieu of $50 and the total amount imposed on the person for all such failures during the calendar year which are so corrected shall not exceed $50,000.

(d) Exception for de minimis failures to include all required information. --

(1) In general. -- If an information return is filed with the Tax Commissioner, but there is a failure to include all of the information required to be shown on the return or there is inclusion of incorrect information, and such failure or error is corrected on or before August 1, of the calendar year in which the required filing date occurs, then for purposes of this section, such return shall be treated as having been filed with all of the correct required information.

(2) Limitation. -- The number of information returns to which subdivision (1) of this subsection applies for any calendar year shall not exceed the greater of: (A) ten, or (B) one-half of one percent of the total number of information returns required to be filed with the Tax Commissioner by the person during the calendar year.

(e) Penalty in case of intentional disregard. -- If one or more failures described in subsection (b) are due to intentional disregard of the filing requirement or the correct information reporting requirement then, with respect to such failure, subsections (c) and (d) shall not apply and the penalty imposed under subsection (a) shall be $100, or, if greater, ten percent of the aggregate amount of the items required to be reported correctly. When the amount of penalty is determined under this subsection, the $100,000 limitation under subsection (a) shall not apply, and such penalty shall not be taken into account in applying such limitation (or any similar limitation under subsection (c)) to penalties not determined under this subsection (e).

(f) Reasonable cause waiver. -- No penalty shall be imposed under this section with respect to any failure if it is shown that such failure is due to reasonable cause and not due to willful neglect.

(g) Payment of penalty. -- Any penalty imposed by this section shall be paid on notice and demand by the Tax Commissioner and in the same manner as tax.

(h) Definitions. -- For purposes of this section:

(1) Information return. -- The term "information return" means any return required by:

(A) Subsection (a)(2) or (4), section fifty-one, article twenty-one of this chapter (relating to estates and trusts);

(B) Subsection (b), section fifty-eight, article twenty-one of this chapter (relating to partnerships);

(C) Subsection (c), section fifty-eight, article twenty-one of this chapter relating to certain information at source; and

(D) Section thirteen-b, article twenty-four of this chapter relating to S corporations.

(2) Required filing date. -- The term "required filing date" means the date prescribed for filing an information return with the Tax Commissioner determined with regard to any extension of time for filing.

(i) Effective date. -- The provisions of this section shall apply to information returns required to be filed for taxable years beginning after December 31, 1991.

§11-10-20. Effective date; transition rules.

(a) The provisions of this article shall take effect on July 1, 1978, except to the extent modified in this section.

(b) The provisions of sections one through fourteen shall apply on and after the effective date of this article irrespective of when the tax liability arose: Provided, That when the assessment has been made prior to the effective date of this article, the rights and duties of the taxpayer and the State of West Virginia shall be determined with regard to the assessment, hearing and appeals therefrom by the laws of the State of West Virginia as they existed prior to the effective date hereof, which laws shall be preserved and continued with respect to such assessment, hearing and appeals as fully and completely as if set forth in extenso herein.

(c) The provisions of sections fifteen through nineteen shall apply only with respect to taxes imposed for periods ending on or after the effective date of this article. Tax liabilities, if any, arising prior to the effective date of this article shall, with respect to additions to tax, penalties and interest, be determined, administered and assessed as if this act and the sections and articles it amends and reenacts or repeals had not been amended and reenacted or repealed, and the rights and duties of the taxpayers and the State of West Virginia shall be fully and completely preserved.

(d) Notwithstanding subsection (c) above, the provisions of sections sixteen, seventeen, eighteen and nineteen of this article may apply to tax liabilities arising during any period prior to the effective date of this article if (1) the Tax Commissioner has not issued an assessment with respect to such prior period, or (2) the Tax Commissioner has issued such assessment which is or may be the subject of a petition for reassessment and his decision thereon has not been issued as of the effective date of this article, and the taxpayer elects to have all of the provisions of sections sixteen, seventeen, eighteen and nineteen of this article apply as fully as if the same had been in effect at the time the tax liability arose. Such election shall be made within sixty days after assessment or within sixty days after the effective date of this article, whichever last occurs. No election under this subsection shall serve to shorten the statute of limitations upon assessments otherwise applying to tax liabilities arising prior to the effective date of this article.

§11-10-21. Severability.

If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect, impair or invalidate other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.

§11-10-22. Information returns and due date thereof.

(a) Information returns required. -- The Tax Commissioner shall develop a representative statistical sample of persons who have business registration certificates under article twelve of this chapter. This sample shall be broad enough to reasonably predict revenues and to project how the recommendations of the Governor's commission on fair taxation would impact different classifications of businesses, as well as the various forms of doing business in which those business activities are conducted. Persons included in the sample shall file an information return reporting information for the calendar year ending December 31, 1999, and for the calendar year ending December 31, 2000. When a business files its federal tax returns on a fiscal year basis, the business include in its information return information for its fiscal years ending within the calendar years 1999 and 2000, respectively, except as otherwise prescribed in the rule promulgated pursuant to subsection (d) of this section.

(b) Due date. -- Information returns shall be due on the day the federal tax return or federal informational return is due during calendar year 2001, determined by including any extension of time to file the return. This information return shall be filed with the business's West Virginia form 112, 112S, 120, 141, or, in the case of a sole proprietor, form 140. When the business is not required to file any of these West Virginia forms, the information return shall be filed as a separate document on or before the fifteenth day of the fifth month following the close of its year for tax accounting or financial accounting purposes ending December 31, 1999, or ending within calendar year 2000 but prior to December 31, 2000, unless the Tax Commissioner grants an extension of time to file the information return. Information returns shall be filed in the form and pursuant to instructions prescribed by the Tax Commissioner. These returns shall require information as if the recommendations of the Governor's commission on fair taxation were in effect for the period covered by each information return.

(c) Notification. -- On or before July 1, 2000, the Tax Commissioner shall notify each person selected to be a member of the statistical sample of the selection, and advise the person of the process by which the person will be receiving forms and instructions for filing an informational return after authorization of the same pursuant to subsection (d) of this section.

(d) Legislative rules. --

(1) The Tax Commissioner shall propose legislative rules for promulgation pursuant to article three, chapter twenty-nine-a of this code. Notwithstanding any provision of article three, chapter twenty-nine-a of this code to the contrary, the Tax Commissioner shall submit finally approved proposed rules, including amendments, to the legislative rule-making and review committee on or before August 31, 2000.

(2) The proposed rules shall include the actual content of information return to be completed and filed by each person selected to be a member of the statistical sample, as well as the actual content of the instructions to be used by the person to complete the information return, proposed by the Tax Commissioner. The information required to be provided in the information return shall be, to the extent possible, only information that can be obtained by a selected member of the statistical sample from other tax or regulatory filings made by the selected member.

(3) The proposed rules shall, for the review of the Legislature, separately identify any additional information not obtainable from the filings described in subdivision (2) of this subsection that can be obtained from a selected member of the statistical sample, in the least expensive and intrusive manner for the selected person, that the Tax Commissioner determines is necessary for an adequate state fiscal analysis of the impact of the recommendations of the Governor's commission on fair taxation.

(4) The proposed rules shall, for the review of the Legislature, separately identify any additional information not obtainable from the filings described in subdivision (2) of this subsection that can be obtained from a selected member of the statistical sample, in the least expensive and intrusive manner for the selected person, that the Tax Commissioner determines is necessary for an adequate state economic analysis of the impact of the recommendations of the Governor's commission on fair taxation.

(e) Incentive to file. -- To encourage the filing of complete and accurate information returns, the Tax Commissioner shall allow a $200 tax credit for each required information return that is filed electronically, within the meaning of article five, chapter thirty-nine of this code, and a credit of $150 for each such paper return filed. This credit shall be claimed against the person's liability for tax under article twenty-three of this chapter. Unused credit may be claimed against the person's liability for income tax under article twenty-one or twenty-four of this chapter for the tax year of the person in which the information return is filed. Alternatively, the Tax Commissioner may refund the amount of this credit to any person required to file information returns under this section.

(f) Civil money penalty. -- Any person required to file an information return under this section who fails to file the return timely, determined with regard to any authorized extension of time for filing, or who files a return that is materially incorrect or incomplete shall pay a money penalty of $1,000 for each return that is not filed timely or that is filed timely but is materially inaccurate or incomplete. The Tax Commissioner is authorized to waive this penalty. This penalty shall be collected in the same manner as the penalties imposed by section nineteen of this article are collected.

(g) Confidentiality. --

(1) Information returns and information return information filed under this section shall be treated as returns and return information under the provisions of section five-d of this article. Such returns and return information shall be open to inspection by or disclosure to officers and employees of the Department of Tax and Revenue whose official duties require such inspection or disclosure for the purpose of, but only to the extent necessary in, preparing economic or financial forecasts, projections, analyses, and statistical studies and conducting related activities.

(2) Persons authorized to receive information under this subdivision shall be treated as officers and employees of the state under the provisions of section five-d of this article. Inspection or disclosure of information returns and information return information shall also be permitted pursuant to a contract between the proper officer of this state and a university in this state when the purpose of the disclosure is to prepare economic or financial forecasts, projections, analyses, and statistical studies and conducting related activities regarding the recommendations of the Governor's commission on fair taxation.

(3) Except as otherwise provided in this section, no person who receives an information return or information return information under this section shall disclose the return or return information to any person other than the taxpayer to whom it relates except in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.

§11-10-23. Alternative dispute resolution of tax disputes.

On or before December 31, 2002, the Tax Commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code which adopt and implement alternative dispute resolution mechanisms which offer taxpayers voluntary and cost-effective methods of resolving tax disputes in order to encourage voluntary settlements and minimize the number of disputes that require litigation to resolve the controversy.

§11-10-24. Commissioner to review taxpayer problem resolution procedures; report to Legislature.

The commissioner shall review the procedures utilized to resolve taxpayer complaints and problems to determine whether taxpayer complaints and problems are being remedied promptly and to assure that taxpayer rights are safeguarded and protected during tax determination and collection processes. The commissioner shall, on or before October 1, 2004, report the findings of the review to the Joint Committee on Government and Finance with recommendations on the need for legislation to implement a taxpayer resolution program.

§11-10-25. Taxpayer must show tax exemption applies; presumption.

(a) The burden of proving that a tax exemption applies to any tax administered by the Tax Commissioner shall be upon the taxpayer. Tax exemptions administered by the Tax Commissioner shall be strictly construed against the taxpayer and for the payment of any applicable tax.

(b) To prevent evasion, it is presumed that a tax exemption does not apply until the contrary is clearly established by a preponderance of the evidence.

§11-10-26. Adjustment for correction of erroneous distribution of funds, limitation period, immunity of agencies, subdivisions, and instrumentalities of this state.

(a)(1) An erroneous distribution, transfer, allocation, overpayment or underpayment dedicated, distributed or directed by the state or an instrumentality of the state to a state or local governmental subdivision or a fund, entity, agency or instrumentality of the state or a political subdivision of the state, under the provisions of this code administered under this article, or under the provisions of article twenty-two, twenty-two-a, twenty-two-b, twenty-two-c or twenty-five, chapter twenty-nine of this code, or any other provision of this code, or any combination thereof, caused by clerical error or mistake, or a computational, informational or other mistake or error, may be corrected by an adjustment to a distribution, transfer, allocation or payment to the subdivision, entity, agency, instrumentality or fund and by transfer of moneys from the subdivision, entity, agency, instrumentality or fund until the amount of the erroneous distribution, transfer, allocation, overpayment or underpayment has been corrected: Provided, That no correction or adjustment may be made for an erroneous distribution, transfer, allocation, overpayment or underpayment of moneys that is first discovered by the distributor or the distributee more than three years after the date on which the erroneous distribution, transfer, allocation, overpayment or underpayment of moneys was made, and no action lies for collection, correction or remediation of the late discovered erroneous distribution, transfer, allocation, overpayment or underpayment of the moneys.

(2) A distribution, transfer, allocation, overpayment or underpayment of moneys is deemed to have been made on the date when the moneys related thereto are under the actual, substantive control of the transferee, and subject to expenditure, disbursement, consumption or disposition by the transferee.

(3) An erroneous distribution, transfer, allocation, overpayment or underpayment of moneys is deemed to have been discovered on the date when the distributor or the distributee or any employee, officer, agent or representative of the distributor or distributee has actual substantive knowledge of the erroneous distribution, transfer, allocation, overpayment or underpayment of moneys.

(b) An agency, governmental subdivision or instrumentality of this state is not subject to a fine, penalty, assessment or imposition as a result of, or attributable to, an erroneous distribution, transfer, allocation, overpayment or underpayment of moneys.

(c) The provisions of subsection (a) of this section shall not be applied to alter, abrogate or terminate any current and ongoing agreement or arrangement which was in operation on the effective date of this section, to correct or adjust an erroneous distribution, transfer, allocation, overpayment or underpayment, between (1) this state or an instrumentality of this state and (2) a state or local governmental subdivision or a fund, entity, agency or instrumentality of the state or a political subdivision of this state.

§11-10-27. Administrative fees.

(a) Administrative fee for the collection of money for other state departments, divisions, agencies and institutions.

(1) The Tax Commissioner may retain one percent of the taxes and fees, including one percent of any interest, additions to tax and penalties related thereto, collected by the Tax Division of the Department of Revenue that are to be deposited into any of the following special revenue funds: The Special Reclamation Fund, the Special Reclamation Water Trust Fund, the Mining and Reclamation Operations Fund, the Solid Waste Reclamation and Environmental Response Fund, the Solid Waste Enforcement Fund, the Solid Waste Management Board Reserve Fund, the Recycling Assistance Fund, the Closure Cost Assistance Fund, the Solid Waste Planning Fund, the Hazardous Waste Emergency Response Fund, the Law-Enforcement Fund, the Gas Field Highway Repair and Horizontal Drilling Waste Study Fund, the Waste Coal-Producing Counties Fund, the Coalbed Methane Gas Distribution Fund, the Eligible Acute Care Provider Enhancement Account, the West Virginia Affordable Housing Trust Fund, the special revenue account in the State Treasury to be appropriated by the Legislature for the purposes of the Division of Forestry and the special medical school fund in the State Treasury to be used solely for the construction, maintenance and operation of a four-year school of medicine, dentistry and nursing. For all taxes collected by the Tax Division of the Department of Revenue that are to be deposited into any other special revenue funds, the Tax Commissioner may retain, as an administrative fee, one percent of the taxes and fees, including one percent of any interest, additions to tax and penalties related thereto. Notwithstanding any provision of this code to the contrary, on and after July 1, 2022, any fee collected by or dedicated to the Office of the Tax Commissioner for the collection, distribution, or administration of a specified tax or fee, shall be deposited into the “Tax Administration Services Fund” specified in this section, and shall be used for the purposes and in the manner specified in this section. The amount retained by the Tax Commissioner is a fee for the services provided by the Tax Division in the administration, distribution or collection, or any combination thereof, of those taxes and fees.

(2) (A) Notwithstanding any provision of this code to the contrary, effective July 1, 2022, and thereafter, all amounts required to be deposited into the following funds prior to the amendment of this section during the 2022 regular legislative session shall, in lieu thereof, be deposited into the “Tax Administrative Services Fund” specified in this section and shall be used for the purposes and in the manner specified in this section. All moneys currently contained in the following funds, as of July 1, 2022, shall be transferred to the “Tax Administrative Service Fund”:

(i) The “Motor Fuel General Tax Administrative Fund” created pursuant to §11-14C-47 of this code;

(ii) The “Oil and Gas County Revenue Fund Administration Fund” created pursuant to §11-13A-5a of this code;

(iii) The “Additional Tax Administration Fund” created pursuant to §11-13A-6 of this code;

(iv) The “Special Audit and Investigative Unit Fund” created pursuant to §11-9-2a of this code;

(v) The “Medicaid State Share Administration Fund” created pursuant to §11-27-32 of this code;

(vi) The “Cemetery Company Registration Fund” created pursuant to §35-5B-2 of this code;

(vii) The “Telemarketer Registration Fund” created pursuant to §46A-6F-303 of this code;

(viii) The “Local Sales Tax and Excise Tax Administration Fund” created pursuant to §11-10-11c of this code;

(ix) The “Wine Tax Administration Fund” created pursuant to §60-8-24 of this code;

(x) The “Tax Offset Fee Administration Fund” created pursuant to §11-10-11 of this code;

(xi) The “Municipal Fines and Fees Collection Fund” created pursuant to the previous provisions of §8-10-2b of this code; and

(xii) The “Magistrate Fines and Fees Collection Fund” created pursuant to §50-3-2c of this code.

(B) The amount of any statutory authorized fee listed in paragraph (A) of this subdivision shall be the amount provided in the authorizing statute: Provided, That, notwithstanding any provision of this code to the contrary, the fee authorized by §11-10-11c(c) of this code shall be one percent of collections.

(b) Administrative fee for the collection, administration and distribution of money for local or municipal government, any other governmental subdivision or other public entity or public corporation, where a fee is not otherwise provided for elsewhere in this code.

For all taxes or fees collected by the Tax Division of the Department of Revenue on behalf of any local, county or municipal government, or any other governmental subdivision or public entity or public corporation, including, but not limited to, sanitary districts, water districts and solid waste authorities, the Tax Commissioner may retain, as an administrative fee, one percent of the taxes and fees, including one percent of any interest, additions to tax and penalties related thereto: Provided, That the Legislature has not expressly and specifically authorized a fee in a provision of this code other than this section, to be collected by, retained by or dedicated to, the Tax Commissioner for the collection, distribution or administration of a specified tax or fee. For purposes of this section the term “taxes and fees” includes any interest, additions to tax and penalties relating to any taxes or fees.

(c) Transaction fees imposed by the Enterprise Resource Planning System may be recovered by the Tax Division of the Department of Revenue.

If the Tax Division of the Department of Revenue incurs a fee imposed by the Enterprise Resource Planning System, which is developed, implemented and managed by the West Virginia Enterprise Resource Planning Board §12-6D-1 et seq. of this code, relating to a transaction of any entity or person with the Tax Division of the Department of Revenue, then the Tax Commissioner may charge that entity or person a fee in the amount that the Tax Division of the Department of Revenue incurred or will incur relating to that transaction.

(d) Fees collected under this section shall be retained in a revolving fund for the use of the Tax Division of the Department of Revenue.

Any fees collected or retained under subsections (a), (b) and (c) of this section shall be held in a revolving fund for the use of the Tax Division of the Department of Revenue for general tax administration, which fund is hereby created in the State Treasury and designated the “Tax Administration Services Fund”. Expenditures from the fund are authorized from collections. Moneys remaining in such fund on the last day of the fiscal year shall carry over and remain in the fund in the next succeeding fiscal year for use by the Tax Division of the Department of Revenue.

(e) Fee increases. – Any state agency may increase any administrative fee that the agency is authorized to impose by West Virginia statute or West Virginia rule by proposing a legislative rule, for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, imposing the increase: Provided, That no such increase shall be made within three years of the initial imposition of the fee or within three years of the most recent revision of a statute or rule that increases or decreases the fee.

(f) Effective date. – The provisions of this section, as enacted in 2015, become effective January 1, 2016. The provisions of this section, as enacted in 2022, become effective January 1, 2022.

§11-10A-1. Legislative finding; purpose.

The Legislature finds that there is a need for an independent quasi-judicial agency separate and apart from the Tax Division to resolve disputes between the Tax Commissioner, county assessors, county commissions, and taxpayers to maintain public confidence in the state tax system. The Legislature does therefore declare that the purpose of this article is to create the West Virginia office of tax appeals to resolve disputes between the Tax Commissioner, county assessors, county commissions, and taxpayers and to prescribe the powers and duties of the office of tax appeals.

§11-10A-2. Definitions.

(a) "Division" means the Tax Division of the West Virginia Department of Tax and Revenue.

(b) "Tax commissioner" or "commissioner" means the Tax Commissioner of the State of West Virginia or his or her authorized designee.

(c) "Office of tax appeals" means the West Virginia office of tax appeals created by this article.

§11-10A-3. Office of tax appeals created.

There is hereby created the West Virginia office of tax appeals, a quasi-judicial agency which, for administrative purposes only, is in the Department of Tax and Revenue.

§11-10A-4. Principal office; place for hearings; county commission to provide facilities.

The principal office shall be at the state capital, but the office of tax appeals may hold hearings at any place within this state. A county commission, upon request by the office of tax appeals, shall provide it with suitable rooms and facilities for hearings it holds in that county at times convenient to the county commission and the office of tax appeals.

§11-10A-5. Seal; authenticating records; judicial notice.

The office of tax appeals shall have a seal. The seal shall have the following words engraved thereon: "West Virginia Office of Tax Appeals." The office of tax appeals shall authenticate all of its orders, records and proceedings with the seal; and the courts of this state shall take judicial notice of the seal.

§11-10A-6. Chief Administrative Law Judge; appointment, term and vacancy; qualifications; compensation; conflicts of interest prohibited; removal.

(a) The Governor, with the advice and consent of the Senate, shall appoint the Chief Administrative Law Judge from a list of three qualified nominees submitted to the Governor by the board of Governors of the West Virginia State Bar for a four-year term. An appointment to fill a vacancy in the position shall be for the unexpired term.

(b) Prior to appointment, the Chief Administrative Law Judge shall be a citizen of the United States and a resident of this state who is admitted to the practice of law in this state and who has five years of full-time or equivalent part-time experience as an attorney with federal or state tax law expertise or as a judge of a court of record.

(c) The salary of the Chief Administrative Law Judge shall be set by the Secretary of the Department of Revenue created in section two, article one, chapter five-f of this code. The salary shall be within the salary range for comparable chief administrative law judges as determined by the state Personnel Board created by section six, article six, chapter twenty-nine of this code.

(d) The Chief Administrative Law Judge during his or her term shall:

(1) Devote his or her full time to the duties of the position;

(2) Not otherwise engage in the active practice of law or be associated with any group or entity which is itself engaged in the active practice of law: Provided, That nothing in this paragraph may be construed to prohibit the Chief Administrative Law Judge from being a member of a national, state or local bar association or committee, or of any other similar group or organization, or to prohibit the Chief Administrative Law Judge from engaging in the practice of law by representing herself or his or her immediate family in their personal affairs in matters not subject to this article.

(3) Not engage directly or indirectly in any activity, occupation or business interfering or inconsistent with his or her duties as Chief Administrative Law Judge;

(4) Not hold any other appointed public office or any elected public office or any other position of public trust; and

(5) Not be a candidate for any elected public office, or serve on or under any committee of any political party.

(e) The Governor may remove the Chief Administrative Law Judge only for incompetence, neglect of duty, official misconduct or violation of subsection (d) of this section, and removal shall be in the same manner as that specified for removal of elected state officials in section six, article six, chapter six of this code.

§11-10A-7. Powers and duties of Chief Administrative Law Judge; all employees, except Chief Administrative Law Judge, members of classified service; qualifications of administrative law judges.

(a) The Chief Administrative Law Judge is the chief executive officer of the Office of Tax Appeals and he or she may employ one person to serve as executive director, two staff attorneys, and other clerical personnel as necessary for the proper administration of this article. The Chief Administrative Law Judge may delegate administrative duties to other employees, but the Chief Administrative Law Judge is responsible for all official delegated acts.

(1) Upon the request of the Chief Administrative Law Judge, the Governor may appoint up to three administrative law judges as necessary for the proper administration of this article.

(2) All employees of the Office of Tax Appeals, except the Chief Administrative Law Judge, shall be in the classified service and shall be governed by the provisions of the statutes, rules, and policies of the classified service in accordance with the provisions of §29-6-1 et seq. of this code.

(3) Prior to employment by the Office of Tax Appeals, all administrative law judges shall be admitted to the practice of law in this state and have at least two years of full-time or equivalent part-time experience as an attorney with federal or state tax law expertise.

(4) The Chief Administrative Law Judge and all administrative law judges shall be members of the Public Employees Retirement System and do not qualify as participants in the judicial retirement system during their tenure with the Office of Tax Appeals.

(b) The Chief Administrative Law Judge shall:

(1) Direct and supervise the work of the legal staff;

(2) Make hearing assignments;

(3) Maintain the records of the Office of Tax Appeals;

(4) Review and approve decisions of administrative law judges as to legal accuracy, clarity and other requirements;

(5) Publish decisions in accordance with the provisions of §11-10A-16 of this code;

(6) Submit to the Legislature, on or before February 15, an annual report summarizing the Office of Tax Appeals’ activities since the end of the last report period, including a statement of the number and type of matters handled by the Office of Tax Appeals during the preceding fiscal year and the number of matters pending at the end of the year; and

(7) Perform the other duties necessary and proper to carry out the purposes of this article.

§11-10A-8. Jurisdiction of Office of Tax Appeals.

The Office of Tax Appeals has exclusive and original jurisdiction to hear and determine all:

(1) Appeals from tax assessments issued by the Tax Commissioner pursuant to article ten of this chapter;

(2) Appeals from decisions or orders of the Tax Commissioner denying refunds or credits for all taxes administered in accordance with the provisions of §11-10-1 et seq. of this code;

(3) Appeals from orders of the Tax Commissioner denying, suspending, revoking, refusing to renew any license, or imposing any civil money penalty for violating the provisions of any licensing law administered by the Tax Commissioner;

(4) Questions presented when a hearing is requested pursuant to the provisions of any article of this chapter which is administered by the provisions of §11-10-1 et seq. of this code;

(5) Matters which the Tax Division is required by statute or legislatively approved rules to hear, except employee grievances filed pursuant to §6C-2-1 et seq. of this code;

(6) Other matters which may be conferred on the office of tax appeals by statute or legislatively approved rules; and

(7) Appeals by any party aggrieved by the valuation of real property and personal property tax assessments and classifications or taxability as set forth in §11-3-1 et. seq. of this code.

§11-10A-9. Appeal to Office of Tax Appeals; petition; answer.

(a) A proceeding before the Office of Tax Appeals appealing a tax assessment, a denial of a tax refund or credit or any other order of the Tax Commissioner, or requesting a hearing pursuant to the provisions of any article of this chapter which is administered pursuant to article ten of this chapter, shall be initiated by a person timely filing a written petition that succinctly states:

(1) The nature of the case;

(2) The facts on which the appeal is based; and

(3) Each question presented for review by the Office of Tax Appeals.

(b) Except where a different time for filing a petition is specified elsewhere in this code, a petition filed pursuant to subsection (a) of this section is timely filed if postmarked or hand delivered to the Office of Tax Appeals within sixty days of the date a person received written notice of an assessment, denial of a refund or credit, order or other decision of the Tax Commissioner.

(c) The Office of Tax Appeals shall, within five days of receipt of a timely petition filed pursuant to subsection (a) of this section, provide the Tax Commissioner with a copy of the petition. The Tax Commissioner shall submit a written answer to the petition within forty days of his or her receipt of the petition. The answer shall succinctly state:

(1) The nature of the case;

(2) The facts relied upon by the Commissioner;

(3) An answer to each question presented for review.

(d) A proceeding before the Office of Tax Appeals in other matters conferred by statute or legislatively approved rules shall be initiated by filing a petition with the Office of Tax Appeals in accordance with the provisions of the applicable statute or rule.

§11-10A-10. Hearing procedures.

(a) The office of tax appeals shall assign a date, time, and place for a hearing on a petition and shall notify the parties to the hearing by written notice at least 20 days in advance of the hearing date. The hearing shall be held within 45 days of the due date of the commissioner’s answer unless continued by order of the office of tax appeals for good cause.

(b) A hearing before the office of tax appeals shall be heard de novo and conducted pursuant to the provisions of the contested case procedure set forth in §29A-5-1 et seq. of this code to the extent not inconsistent with the provisions of this article. In case of conflict, the provisions of this article shall govern. The provisions of §29A-5-5 of this code are not applicable to a hearing before the office of tax appeals.

(c) The office of tax appeals is not bound by the rules of evidence as applied in civil cases in the circuit courts of this state. The office of tax appeals may admit and give probative effect to evidence of a type commonly relied upon by a reasonably prudent person in the conduct of his or her affairs.

(d) All testimony shall be given under oath.

(e) Except as otherwise provided by this code or legislative rules, the taxpayer or petitioner has the burden of proof.

(f) The administrative law judge may ask for proposed findings of fact and conclusions of law from the parties prior to the issuance by the office of tax appeals of the decision in the matter.

(g) Hearings shall be exempt from the requirements of §6-9A-1 et seq. and §29B-1-1 et seq. of this code.

(h) For all appeals regarding property tax assessments, taxability, and classifications pursuant to §11-3-1 et. seq., the standard of proof which a taxpayer must meet at all levels of review and appeal shall be a preponderance of the evidence standard.

§11-10A-11. Small claims hearing.

(a) If the amount in dispute in any petition filed with the Office of Tax Appeals does not exceed $10,000 for any one taxable year, then, at the option of the taxpayer and with the concurrence of the Tax Commissioner and the Office of Tax Appeals, the hearing shall be conducted under this section. Notwithstanding the provisions of section fourteen of this article, a hearing under this section shall be conducted in an informal manner and in accordance with the rules of practice and procedure as the Office of Tax Appeals may prescribe.

(b) At any time before commencement of the hearing held under this section, the petitioner may unilaterally withdraw the election made under subsection (a) of this section. Upon a change of election, a hearing shall be held in the same manner as other contested matters to which this article applies.

(c) A decision entered in any hearing conducted under this section is not subject to administrative or judicial review under this article, article ten of this chapter or article five, chapter twenty-nine-a of this code and may not be treated as precedent for any other contested matter. The amount, if any, owed by the taxpayer to the state shall be paid within thirty days after notice of the decision is served on the taxpayer. The amount, if any, of overpayment by the taxpayer shall be promptly refunded or credited to the taxpayer.

(d) For purposes of this section, the amount in dispute includes tax, additions to tax and penalties, but excludes interest.

§11-10A-12. Powers of the office of tax appeals.

In determining the outcome of a case, the office of tax appeals may affirm, reverse, modify or vacate an assessment of tax; may order the payment of or deny a refund, in whole or part; may authorize or deny a credit, in whole or part; or may grant other relief necessary or appropriate to dispose of the matter.

§11-10A-13. Subpoenas; service; cost; fees; relief; disobedience; oath.

(a) The office of tax appeals has the power to issue subpoenas and subpoenas duces tecum requiring the attendance of witnesses and the production of books, papers, records, documents and testimony at the time and place specified. The office of tax appeals may exercise the power upon the request of any person who is a party to a hearing before the office of tax appeals.

(b) Every subpoena and subpoena duces tecum must be served at least five days before the return date thereof, by either personal service made by any person over eighteen years of age, or by registered or certified mail, but a return receipt signed by the person to whom subpoena or subpoena duces tecum is directed shall be required to prove service by registered or certified mail. Any party requesting a subpoena or subpoena duces tecum is responsible for service thereof and payment of any fee for service. Any person who serves any subpoena or subpoena duces tecum shall be entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state.

(c) Fees for the attendance of witnesses subpoenaed shall be the same as for witnesses before the circuit courts of this state. All fees related to any subpoena or subpoena duces tecum issued at the request of a party to an administrative hearing shall be paid by the party who requested the subpoena or subpoena duces tecum be issued. All requests by parties for issuance of subpoena or subpoena duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay the fees.

(d) Upon motion made promptly, and in any event before the time specified in a subpoena or subpoena duces tecum for compliance therewith, the circuit court of the county in which the hearing is to be held or the circuit court of the county in which the person upon whom any subpoena or subpoena duces tecum was served resides, has his her or its principal place of business or is employed, or the circuit court of the county in which any subpoena or subpoena duces tecum was served, or the judge of any circuit court in vacation, may grant any relief with respect to the subpoena or subpoena duces tecum which any circuit court, under the West Virginia rules of civil procedure, could grant, and for any of the same reasons, with respect to any subpoena or subpoena duces tecum issued from any circuit court.

(e) In case of disobedience to or neglect of any subpoena or subpoena duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which he or she may be lawfully interrogated, the circuit court of the county in which the hearing is being held, or the circuit court of Kanawha County or of the county in which the person resides, has his her or its principal place of business or is employed, or the judge thereof in vacation, upon application of the chief administrative law judge of the office of tax appeals, may compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from the circuit court for a refusal to testify therein.

(f) Witnesses subpoenaed under this section shall testify under oath or affirmation.

§11-10A-14. Recording hearings; notice; record; transcripts; costs.

(a) Except in the small claims division, all hearings before the office of tax appeals shall be recorded by means acceptable for use in courts of this state. All parties shall receive notice that the hearing will be recorded and that each is entitled to receive a copy of the recording at cost.

(b) A copy of the written exhibits made part of the record shall be available to any party upon request and payment of a reasonable fee.

(c) Upon appeal to circuit court, a verbatim transcript and copy of written exhibits shall be prepared for submission to the circuit court with the cost paid by the party taking the appeal: Provided, That if both parties appeal, the cost of the transcript shall be shared equally by the two parties.

§11-10A-15. Appearances before the office of tax appeals.

(a) A person may appear before the office of tax appeals in his or her own behalf, or may be represented by an attorney or by any other person as he or she may choose.

(b) Nothing in this section may be construed to permit the unauthorized practice of law as defined by the West Virginia Supreme Court of Appeals.

§11-10A-16. Decisions and orders of the office of tax appeals; publication.

(a) Every final decision or order of the office of tax appeals shall be in writing and shall include a concise statement of the material facts and conclusions of law.

(b) All final decisions or orders of the office of tax appeals shall be issued within a reasonable time, not to exceed six months, from the date the petition is filed or from the date the hearing record is closed, whichever is later.

(c) All final decisions and orders, except small claims decisions, shall be published in the state register after having been redacted to maintain confidentiality. The office of tax appeals may also post its redacted decisions on the Internet.

§11-10A-17. Service of notice of final decisions and orders.

(a) Notice of final decisions and orders of the office of tax appeals shall be served upon the parties either by personal or substituted service, or by certified mail.

(1) Service of notice by personal or substituted service is valid if made by any method authorized by the rules of the West Virginia rules of civil procedure.

(2) Service of notice by certified mail is valid if accepted by the party, or if addressed to and mailed to the party's usual place of business or usual place of abode or last known address and accepted by any person.

(b) Any notice addressed and mailed in the manner specified in subsection (a), which is refused or not claimed, may then be served by first-class mail, postage prepaid, to the same address and the date of posting in the United States mail is the date of service.

§11-10A-18. Finality of decision by the office of tax appeals; amount due payable; prompt refunds.

Unless an appeal from the decision of the office of tax appeals is taken pursuant to section nineteen of this article, within sixty days after service of notice of the decision, the office of tax appeals's decision shall become final and conclusive and not subject to either administrative or judicial review. The amount, if any, owed by the taxpayer shall be due and payable to the Tax Commissioner on the day following the date upon which the decision became final. The amount of overpayment by the taxpayer, if any, shall be promptly refunded or credited to the taxpayer.

§11-10A-19. Judicial review of office of tax appeals decisions.

(a) Either the taxpayer or the commissioner, or both, or in the case of property taxes the county assessor, or county commission, may appeal the final decision or order of the Office of Tax Appeals by taking an appeal to the Intermediate Court of Appeals of this state within 30 days after entry of the final decision or order.

(b) The Office of Tax Appeals may not be made a party in any judicial review of a decision or order it issued.

(c) The appeal proceeding shall be instituted by filing a notice of appeal with the Intermediate Court of Appeals, within the 30 day period prescribed in subsection (a) of this section.

 (d) If the appeal is of an assessment, except a jeopardy assessment for which security in the amount thereof was previously filed with the Tax Commissioner, then within 90 days after the notice of appeal is filed, or sooner if ordered by the Intermediate Court of Appeals, the petitioner shall file with the clerk of the Intermediate Court of Appeals a cash bond or a corporate surety bond approved by the clerk. The surety must be qualified to do business in this state. These bonds shall be conditioned upon the petitioner performing the orders of the court. The penalty of this bond shall be not less than the total amount of tax or revenue plus additions to tax, penalties, and interest for which the taxpayer was found liable in the administrative decision of the office of tax appeals. Notwithstanding the foregoing and in lieu of the bond, the Tax Commissioner, upon application of the petitioner, may upon a sufficient showing by the taxpayer, certify to the clerk of the Intermediate Court of Appeals that the assets of the taxpayer are adequate to secure performance of the orders of the court: Provided, That if the Tax Commissioner refuses to certify that the assets of the taxpayer or other indemnification are adequate to secure performance of the orders of the court, then the taxpayer may apply to the Intermediate Court of Appeals for the certification. No bond may be required of the Tax Commissioner.

 (e) The Intermediate Court of Appeals shall hear the appeal as provided in §29A-5-4 of this code: Provided, That when the appeal is to review a decision or order on a petition for refund or credit, the court may determine the legal rights of the parties, but in no event shall it enter a judgment for money.

 (f) Unless the Tax Commissioner appeals an adverse court decision, the commissioner, upon receipt of the certified order of the court, shall promptly correct his or her assessment or issue his or her requisition on the treasury or establish a credit for the amount of an overpayment.

 (g) Either party may appeal an Intermediate Court of Appeals’ decision to the Supreme Court of Appeals as provided in §29A-6-1 et seq. of this code.

 (h) For all appeals regarding property tax assessments, taxability, and classifications pursuant to §11-3-1 et seq., the standard of proof which a taxpayer must meet at all levels of review and appeal shall be a preponderance of the evidence standard.

§11-10A-20. Rules required.

The office of tax appeals shall adopt rules of practice and procedure in accordance with the provisions of article three, chapter twenty-nine-a of this code no later than March 31, 2003.

§11-10A-21. Timely filing.

(a) Any petition, statement or other document required to be filed within a prescribed period or on or before a prescribed date under authority of this article is timely filed if it is delivered in person on or before the date to the office of tax appeals at its office during normal business hours.

(b) Any petition, statement or other document required to be filed within a prescribed period or on or before a prescribed date under authority of this article that is delivered by the United States mail to the office of tax appeals is timely filed if the date of the United States postmark stamped on the envelope is within the prescribed period or on or before the prescribed date for filing, and the envelope was deposited in the United States mail, postage prepaid and properly addressed to the office of tax appeals.

(c) The last date for timely filing includes any extension of time authorized by law or rule and any extension of time granted in writing by the office of tax appeals.

§11-10A-22. Time for performance of acts where last day falls on Saturday, Sunday or legal holiday.

When the last day prescribed under authority of this article for performing any act falls on Saturday, Sunday or a legal holiday, the performance of the act is considered timely if it is performed on the next succeeding day which is not a Saturday, Sunday or a legal holiday. For purposes of this section, the last day for the performance of any act shall be determined by including any authorized extension of time. The term "legal holiday" means a legal holiday in this state.

§11-10A-23. Confidentiality.

The provisions of section five-d, article ten of this chapter, to the extent not inconsistent with the provisions of this article, are applicable to all employees of the office of tax appeals.

§11-10B-1. Legislative intent.

It is the intent of the Legislature in enacting the tax penalty and additions to tax amnesty program, as provided by this article, to improve compliance with this state's tax laws and to accelerate and increase collections of certain taxes currently owed to this state. The Legislature finds and declares that a public purpose is served by the waiver of tax penalties, additions to tax and criminal prosecution in return for the immediate reporting and payment of previously underreported, nonreported, unpaid or underpaid tax liabilities which accrued prior to or are delinquent as of January 1, 1986. The benefits gained by this program include, among other things, accelerated receipt of certain currently owed taxes, permanently bringing into the tax system taxpayers who have been evading tax and providing an opportunity for taxpayers to clear their records and satisfy tax obligations. It is further the intent of the Legislature in enacting this article that the tax penalty and additions to tax amnesty program be a one-time occurrence which shall not be repeated in the future, since taxpayers' expectations of future amnesty programs could have a counterproductive effect on compliance today.

§11-10B-2. Definitions.

(a) General rule. -- Terms used in this article shall have the meaning ascribed to them in section four, article ten of this chapter, unless the context in which the term is used in the article clearly requires a different meaning, or the term is defined in subsection (b) of this section.

(b) Terms defined. -- For purposes of this article, the term:

(1) "Additions to tax" shall mean that amount imposed by section eighteen, or eighteen-a, article ten of this chapter, for failure to file a return or pay tax due, or for negligence or intentional disregard of rules and regulations of the Tax Commissioner, for filing a false or fraudulent return, or for failure to pay estimated tax, and includes "additions to tax" imposed by articles fourteen, fourteen-a, seventeen, nineteen, twenty-one and twenty-four of this chapter, as in effect on June 30, 1978, and preserved in section twenty, article ten of this chapter, for periods ending on or before that date;

(2) "Applicant" shall mean any person who timely files an application for amnesty under this article;

(3) "Penalty" shall mean and include additions to tax, penalties imposed by section nineteen, article ten of this chapter, penalties imposed by articles eleven, twelve, thirteen, fourteen, fourteen-a, fifteen, fifteen-a, seventeen, nineteen, twenty-one or twenty-four of this chapter, as such articles are presently written or as in effect on June 30, 1978, and preserved in section twenty, article ten of this chapter, for periods ending on or before that date;

(4) "Specified tax" shall mean the tax or taxes and the periods thereof for which the taxpayer applies for amnesty under this article.

§11-10B-3. Development and administration of program, implementation of article.

The Tax Commissioner shall develop and administer the tax penalty and additions to tax amnesty program as provided in this article, and shall develop and issue such forms, instructions, regulations and guidelines as he deems to be necessary, and take any other action needed to implement this article.

§11-10B-4. Duration and application of program.

The Tax Commissioner shall establish a three-month tax penalty and additions to tax amnesty program to be conducted during the calendar year, 1986. The program shall apply to payments and returns required pursuant to any tax specified in section three, article ten of this chapter, but only if the obligation for payment or filing of a return, or both, arose prior to, is delinquent as of, or is due and payable as of January 1, 1986.

§11-10B-5. Waiver of penalties; criminal immunity; exceptions and limitations.

(a) For any taxpayer who meets the requirements of section six below, and except as otherwise specifically provided in this article.

(1) The Tax Commissioner shall waive all penalties, as defined in section two of this article, and all additions to tax, as defined in said section two, for the taxes for which tax penalty and additions to tax amnesty is granted, which are owed as a result of nonpayment, underpayment, nonreporting or underreporting of tax liabilities; and

(2) No criminal action may be brought against the taxpayer for the default for which tax penalty and additions to tax amnesty is granted.

(b) This section does not apply to nonpayment, underpayment, nonreporting, misreporting or underreporting of tax liabilities for which amnesty is sought if, as of the date the taxpayers' application for amnesty is filed:

(1) The taxpayer is the subject of a criminal investigation by any agency of this state; or

(2) An administrative proceeding, or a civil or criminal court proceeding has been initiated or is pending in any administrative agency or court of this state or of the United States for nonpayment, delinquency, fraud or other event of noncompliance in relation to any of the specified taxes. An administrative or civil proceeding shall not be deemed to be pending if the taxpayer withdraws with prejudice from the proceeding prior to the granting of amnesty, pays in full the outstanding tax liability plus the accrued interest thereon and otherwise cures any default which is the subject of such proceeding.

(c) No refund or credit may be granted for any penalty or addition to tax paid prior to the time the taxpayer files his application for tax penalty and additions to tax amnesty pursuant to section six below. Additionally, no refund or credit shall be granted for any specified taxes plus interest paid under this program unless the Tax Commissioner, on his own motion, redetermines the amount of tax and accrued interest thereon.

(d) The taxpayer shall not be eligible for amnesty for any tax liability if the taxpayer has other tax liabilities outstanding for a tax listed in section three, article ten of this chapter, for which he has not applied for amnesty.

§11-10B-6. Application for amnesty; requirements; deficiency assessment.

(a) The provisions of this article apply to any taxpayer who, on or after the date of commencement of the tax penalty and additions to tax amnesty program and on or before the termination date designated by the Tax Commissioner, files an application for tax penalty and additions to tax amnesty on or before the last day of the third calendar month of the amnesty program and does the following:

(1) Voluntarily completes, signs and files amended tax returns to report transactions and other material matters not included on original returns and pays in full all additional taxes and interest shown to be due thereon;

(2) Voluntarily completes, signs and files all delinquent tax returns and pays in full all taxes and interest shown to be due thereon;

(3) Voluntarily completes, signs and files amended tax returns to correct all incorrect, deficient or incomplete original returns and pays in full all taxes and interest shown to be due thereon; and

(4) Voluntarily pays in full all previously assessed tax liabilities and other taxes legally collectible under section eleven, article ten of this chapter, and interest due thereon.

(b) Except as provided in subsection (d) below, all taxes for which tax penalty and additions to tax amnesty is sought plus accrued interest shall be paid not later than last day of the month succeeding the termination of the amnesty program. Interest on the amount of tax due shall be calculated at the rate prescribed in article ten of this chapter, which continues to accrue until the tax liability is paid.

(c) Payments made by the taxpayer under this tax penalty and additions to tax amnesty program shall be in money, United States currency or by certified check, cashier's check or post office money order, payable to the Tax Commissioner of this state.

(d) The Tax Commissioner may, at his discretion and upon such terms and conditions as he may prescribe, enter into an installment payment agreement with the taxpayer, such installment payment agreement to be in lieu of the full immediate payment required by subsection (b) of this section. Any such agreement shall include interest on the outstanding amount due. Failure of the taxpayer to fully comply with the terms of the installment payment agreement shall render the waiver of penalties and additions to tax under this amnesty program null and void, unless the Tax Commissioner determines that the failure was due to reasonable cause, and, in the event of such unexcused noncompliance with the terms of the installment payment agreement, the total amount of tax, interest and all additions to tax and penalties shall be immediately due and payable.

(e) If, subsequent to termination of the tax penalty and additions to tax amnesty program, the Tax Commissioner determines there was a defect in the amnesty application or in the materials submitted in support of the amnesty application and subsequently issues a deficiency assessment upon a return or amended return filed pursuant to subsection (a) of this section, the Tax Commissioner has the authority to impose applicable penalties and additions to tax and to pursue any criminal prosecution as may ordinarily be brought with respect to such defect as if no amnesty had been granted the taxpayer.

(f) The Tax Commissioner may review all cases in which amnesty has been granted and may on the basis of mistake of fact, fraud or misrepresentation rescind the grant of amnesty, or in lieu thereof, appropriate review of the grant of amnesty may be obtained by proceeding under article nine or ten (or both) of this chapter. Any taxpayer who files a false or fraudulent return or amended return, or attempts in any manner to defeat or evade payment of a tax under this amnesty program, shall be subject to applicable civil penalties and criminal prosecution.

§11-10B-7. Publicity efforts.

The Tax Commissioner shall cause the tax penalty and additions to tax amnesty program to be adequately publicized so as to maximize public awareness of and participation in the program.

§11-10B-8. Disposition of revenue collected.

From the revenue collected under this tax penalty and additions tax amnesty program, $4,000,000 of revenue collected, the disposition of which is not otherwise dedicated by Constitutional provision or prior statutory enactment, shall be paid by the Tax Commissioner into a special "disaster recovery fund," which is hereby created in the State Treasurer's office to be used as appropriated by the Legislature for the recovery of losses occurring in the November, 1985 flood disaster, in twenty-nine counties of this state. The Tax Commissioner shall retain the amount of $200,000 to cover his costs of administering this program. All additional revenues collected by the Tax Commissioner under the provisions of this article, the disposition of which is not otherwise dedicated by Constitutional provision or prior statutory enactment, shall be paid by him into the General Fund.

§11-10C-1. Legislative finding; short title and purpose.

The Legislature hereby finds that creation, development, acquisition and maintenance of an automated tax administration system by the Tax Division of the Department of Tax and Revenue are crucial to efficient operation of state government and in the best interests of the people of West Virginia; that the accuracy, efficiency and cost effectiveness of an automated tax administration system will benefit the people of West Virginia through cost savings, more efficient tax administration and more uniform and effective application of the tax laws of the state.

This article shall be known as the "Benefits-funded Purchasing Act" and is hereby established by the Legislature for the purpose of creating, developing and maintaining an automated tax administration system by the Tax Division of the Department of Tax and Revenue.

§11-10C-2. Authorization of benefits-funded automated tax administration system purchasing program; reports; expiration of authority.

(a) The Tax Commissioner is hereby authorized to enter into contracts to finance and acquire an automated tax administration system and associated computer hardware and software for use in the registration of taxpayers, processing of remittances and returns and collection of delinquent taxes and any interest and penalties thereon and for general tax administration. The Tax Commissioner is further authorized to acquire the technical services and related services necessary to develop, implement and maintain such system and associated computer hardware and software.

(b) Prior to entering into any contract authorized by this article, the Tax Commissioner shall provide to the Joint Committee on Government and Finance a copy of the contract and a report setting forth a detailed summary of the terms of the contract, including the estimated amounts of vendor payments and other terms of financing anticipated under the contract and the date upon which vendor payments will end under the contract, and a description and the cost of the technical services and related services the Tax Commissioner determines is necessary to develop, implement and maintain the system and associated hardware or software to be acquired under the contract.

(c) The authority of the Tax Commissioner to enter into contracts to finance and acquire an automated tax administration system expires June 30, 2005. The expiration of that authority does not affect the authority of the Tax Commissioner to enter into contracts to maintain an automated tax administration system acquired pursuant to this section, including contracts for the acquisition of associated hardware, software or services after meeting the requirements of subsection (b) of this section.

§11-10C-3. Benefits funding.

Notwithstanding any provision of article three, chapter five-a of this code or any other provision of this code to the contrary, payment of costs and compensation for the automated tax administration system, related hardware, software and services may be computed and paid: (1) On the basis of a percentage of the increase in the amount of taxes, interest and penalties collected which is attributable to implementation of the automated tax administration system, as may be described in detail by contract; or (2) on a fixed-fee contract basis, such fees to be paid from the increase in the amount of taxes, interest and penalties collected which is attributable to implementation of the automated tax administration system, as may be described in detail by contract.

§11-10C-4. Monthly determination of increased revenue attributable to automated tax administration system; monthly report; deposit of moneys; creation and operation of automated tax administration system development fund; annual report.

(a) Revenue increment, fund created, operation of fund. --

(1) The Tax Commissioner shall determine monthly the total amount of increased revenue attributable to the successful implementation of the automated tax administration system under this article and the amount shall be paid into the State Treasury and deposited to the credit of a special fund known as the "Automated Tax Administration System Development Fund" which is hereby created. The Tax Commissioner is authorized to use moneys deposited in the automated tax administration system development fund to pay vendors of hardware, software or services pursuant to the terms of contracts created in accordance with this article. All moneys in excess of that required to be paid to the vendors, as determined by the Tax Commissioner, shall be transferred to the General Fund: Provided, That all moneys in excess of $750,000 remaining in the fund at the end of each fiscal year shall be transferred to the General Fund.

(2) The total monthly amount of increased revenue attributable to the successful implementation of the automated tax administration system as determined by the Tax Commissioner and the basis for the determination shall be reported to the Joint Committee on Government and Finance within ten days following the determination.

(b) Treatment of local moneys. -–

(1) The amount of the local moneys derived from any tax imposed under this code which is directed or dedicated to local or municipal subdivisions shall not be deposited in the automated tax administration system development fund, but shall be paid undiminished, including any increase resulting from implementation of the automated tax administration system, to the local or municipal subdivision to which it is directed or dedicated by law. Local or municipal moneys shall be deposited, as directed by law, in those funds designated for orderly distribution of revenues to local or municipal subdivisions.

(2) For purposes of this section, the total amount of increased revenue attributable to the successful implementation of an automated tax administration system for purposes of determining the amount to be deposited in the automated tax administration system development fund and the amount of any benefits-funded payments to vendors under this article shall be determined after subtraction of any tax revenues payable to a local or municipal subdivision under this code.

(c) Reports. -- Prior to January 15, of each year, the Tax Commissioner shall submit a report to the Governor, the President of the Senate and the Speaker of the House of Delegates. The report shall include detailed information on the costs and benefits of implementing the automated tax administration system pursuant to this article during the fiscal year immediately preceding the submission of the report. The report shall be made until two complete fiscal years have elapsed following payment in full for the acquisition of the automated tax administration system by the Tax Commissioner.

(d) Other contracts and purchases not prohibited or hindered. -- This article shall not be construed to prohibit or hinder the Tax Commissioner from acquiring any goods or services for any Tax Division function or program not specifically included in any contract entered into pursuant to this article.

§11-10C-5. Transfer of funds; repeal of article.

At the end of fiscal year two thousand thirteen, all moneys in the automated tax administration system development fund shall be transferred to the General Fund and the provisions of this article are repealed.

§11-10D-1. Short title.

This article may be cited as the "West Virginia Tax Amnesty Program of 2004."

§11-10D-2. Legislative intent and findings.

(a) Intent. -– It is the intent of the Legislature in enacting the tax amnesty program provided by this article to improve compliance with this state's tax laws and to accelerate and increase collections of certain taxes currently owed to this state.

(b) Findings. -– The Legislature finds and declares that a public purpose is served by the waiver of tax penalties, additions to tax, a portion of accrued interest, and criminal prosecution in return for the immediate reporting and payment of previously underreported, unreported, unpaid or underpaid tax liabilities that are due and owing and are delinquent as of January 1, 2004. Benefits gained by this program include, among other things, accelerated receipt of certain currently owed taxes, permanently bringing into the tax system taxpayers who have been evading tax and providing an opportunity for taxpayers to clear their records and satisfy tax obligations. It is further the intent of the Legislature in enacting this article that the tax amnesty program be a one-time occurrence which shall not be repeated in the future, since taxpayers' expectations of future amnesty programs could have a counterproductive effect on compliance today.

§11-10D-3. Definitions.

(a) General rule. -- Terms used in this article shall have the meaning ascribed to them in section four, article ten of this chapter, unless the context in which the term is used in this article clearly requires a different meaning, or the term is defined in subsection (b) of this section.

(b) Terms defined. -- For purposes of this article, the term:

(1) "Additions to tax" means that amount imposed by section eighteen or eighteen-a, article ten of this chapter, for failure to file a return or pay tax due, or for negligence or intentional disregard of rules and regulations of the Tax Commissioner, for filing a false or fraudulent return, or for failure to pay estimated tax, and includes "additions to tax" imposed by any other article of chapter eleven of the code administered under article ten of this chapter;

(2) "Applicant" means any person who timely files an application for amnesty under this article;

(3) "Interest" means interest imposed pursuant to sections seventeen and seventeen-a, article ten of this chapter;

(4) "Penalty" means civil money penalties imposed by section nineteen, article ten of this chapter and any other civil money penalty imposed by any article of this chapter administered under article ten;

(5) "Specified tax" shall mean the tax or taxes and the periods thereof for which the taxpayer applies for amnesty under this article.

§11-10D-4. Development and administration of tax amnesty program, implementation of article.

(a) General. -– The Tax Commissioner shall develop and administer the tax amnesty program provided in this article, notwithstanding any provision of this article to the contrary. The Tax Commissioner shall develop and issue the forms, instructions and guidelines as the commissioner believes to be necessary, and take any other action needed to implement this article.

(b) Rules. -– The Tax Commissioner may promulgate rules, including emergency rules, that implement, clarify or explain the tax amnesty program, in the manner provided in article three, chapter twenty-nine-a of this code.

§11-10D-5. Duration and application of program.

The Tax Commissioner shall establish a two-month tax amnesty program to be conducted during the calendar year, 2004. The program shall apply to payments and returns required pursuant to any tax administered under article ten of this chapter, but only if the obligation for payment or filing of a return, or both, arose after January 1, 1986, and prior to January 1, 2004, provided: (1) The tax return was due before January 1, 2004; (2) the amount of tax shown to be due on the tax return was due and payable to the Tax Commissioner before January 1, 2004; or (3) if no tax return was required by law to be filed, the tax was due and payable to the Tax Commissioner before January 1, 2004.

§11-10D-6. Waiver of penalties; criminal immunity; exceptions and limitations.

(a) Waiver of penalty, addition to tax and interest. -– For any taxpayer who meets the requirements of section seven of this article and except as otherwise specifically provided in this article:

(1) Waiver. -– The Tax Commissioner shall waive all penalties and additions to tax and fifty percent of the interest imposed on the late filing of a return or the late payment of any tax for which tax amnesty is granted, which is owed as a result of nonpayment, underpayment, nonreporting or underreporting of tax liabilities; and

(2) Criminal penalties. -– No criminal action may be brought against the taxpayer for the default for which tax amnesty is granted under this article.

(b) Exceptions. -– This section does not apply to nonpayment or underpayment of tax liabilities, or to nonreported, misreported or underreported tax liabilities for which amnesty is sought if, as of the date the taxpayer's application for amnesty is filed:

(1) The taxpayer is the subject of a criminal investigation by any agency of this state; or

(2) An administrative proceeding or a civil or criminal court proceeding has been initiated or is pending in any administrative agency or court of this state or of the United States for nonpayment, delinquency, fraud or other event of noncompliance in relation to any of the taxes administered under article ten of this chapter. An administrative or civil proceeding shall not be deemed to be pending if the taxpayer withdraws with prejudice from the proceeding prior to the granting of amnesty, pays in full the outstanding tax liability plus fifty percent of the accrued interest thereon and otherwise cures any default which is the subject of the proceeding.

(c) No refund or credit. -– No refund or credit may be granted for any penalty, addition to tax or interest paid prior to the date the taxpayer files his or her application for tax amnesty pursuant to section seven of this article. Additionally, no refund or credit shall be granted for any tax or interest paid under this program unless the Tax Commissioner, on his or her own motion, redetermines the amount of tax or accrued interest thereon.

(d) Bar to amnesty. -– A taxpayer shall not be eligible for amnesty for any tax liability if the taxpayer has other liabilities outstanding for any tax administered under article ten of this chapter, for which the taxpayer has not applied for amnesty. This includes tax deficiencies pending before the office of tax appeals or a court in this state.

§11-10D-7. Application for amnesty; requirements; deficiency assessment.

(a) Timely application required. -– The provisions of this article apply to any taxpayer who, on or after the date of commencement of the tax amnesty program and on or before the termination date of the program designated by the Tax Commissioner, files an application for tax amnesty on or before the last day of the second calendar month of the amnesty program and does the following:

(1) Voluntarily completes, signs and files amended tax returns to report transactions and other material matters not included on original returns and pays in full all additional taxes shown to be due on the amended return or returns and fifty percent of the interest imposed on the additional taxes by article ten of this chapter;

(2) Voluntarily completes, signs and files all delinquent tax returns and pays in full all taxes shown to be due on the return or returns and fifty percent of the interest imposed on the taxes by article ten of this chapter;

(3) Voluntarily completes, signs and files amended tax returns to correct all incorrect, deficient or incomplete original returns and pays in full all taxes shown to be due on the amended return or returns and fifty percent of the interest imposed on the tax or taxes by article ten of this chapter; and

(4) Voluntarily pays in full all previously assessed tax liabilities and other taxes legally collectible under section eleven, article ten of this chapter and fifty percent of the interest due thereon imposed by article ten of this chapter.

(b) Due date of tax for which amnesty granted. -– Except as provided in subsection (d) of this section, all taxes for which tax amnesty is sought plus fifty percent of interest accrued to the date of payment shall be paid not later than the last day of the month next succeeding the termination of the amnesty program. Interest on the amount of tax due shall be calculated as prescribed in article ten of this chapter and shall continue to accrue until the tax liability is paid.

(c) Payments. -– Payments made by the taxpayer under this tax amnesty program shall be in United States currency or by certified check, cashier's check or post office money order, payable to the Tax Commissioner of this state.

(d) Installment payment agreements. -– The Tax Commissioner may, at his or her discretion and upon such terms and conditions as the commissioner may prescribe, enter into an installment payment agreement with the taxpayer, which installment payment agreement shall be in lieu of the full immediate payment required by subsection (b) of this section: Provided, That the length of the installment payment may not exceed twelve months.

(1) Each installment payment agreement shall provide for payment of the tax due and fifty percent of the statutory interest on the outstanding amount of tax due, computed to the date the installment payment agreement is executed by the taxpayer. The amount of tax and interest due from the taxpayer shall be stated in the installment payment agreement and constitute the installment payment agreement amount.

(2) Down payment. -– The installment payment agreement shall require payment of twenty-five percent of the installment payment agreement amount or $100,000, whichever amount is the greater, at the time the installment payment agreement is submitted to the Tax Commissioner for acceptance and signature.

(3) Interest. -– Interest on the installment payment agreement amount shall be calculated at the rates determined under sections seventeen and seventeen-a, article ten of this chapter, as applicable to the installment payment period, and shall accrue on the declining balance of the installment payment agreement amount from the date the installment payment agreement is signed by the taxpayer to the date the last installment payment is made by the taxpayer.

(4) Lien securing payment. -– When payments are made under an installment payment agreement, the amount due shall be secured by recordation of a tax lien against the property of the taxpayer and recordation of a tax lien against the property of any person guaranteeing payment of the installment payment agreement amount, should there be a guarantor, unless the Tax Commissioner determines that existing recorded tax liens are adequate to secure the payment. Liens required by this subdivision shall be recorded in each county of this state in which the taxpayer and the guarantor, if any, owns an interest in property and shall be released by the Tax Commissioner upon full payment of the amount stated in the installment payment agreement plus applicable interest.

(5) Failure to comply with installment payment agreement. -– Failure of the taxpayer to fully comply with the terms of the installment payment agreement shall render the waiver of penalties, additions to tax and interest under this amnesty program null and void, unless the Tax Commissioner determines that the failure was due to reasonable cause. In the event of an unexcused noncompliance with the terms of the installment payment agreement, the taxpayer shall immediately pay the unpaid balance of the installment payment agreement amount plus the interest and all additions to tax and penalties waived under section six of this article.

(6) Late payment of installment payment. -– Notwithstanding the provisions of subdivision (5) of this subsection, payment of an installment payment after the date the installment payment is due under the installment payment agreement shall not void the agreement provided the amount of the installment payment, plus a late payment fee of $10 or one half of one percent of the amount of the late installment payment, whichever is the greater amount, is paid within twenty days after the installment payment was due under the installment payment agreement.

(7) Failure to timely pay current taxes. -– If a taxpayer with an installment payment agreement fails to timely file returns and remit current tax liabilities by their statutory due date or dates, the installment payment agreement shall be rendered null and void, unless the Tax Commissioner determines that the failure was due to reasonable cause. In the event an installment payment agreement becomes null and void, taxpayer shall immediately pay the unpaid balance of the installment payment agreement plus interest and all additions to tax and penalties waived when the Tax Commissioner accepted the installment payment agreement.

(e) Understatement of tax due. -– If, subsequent to termination of this tax amnesty program, the Tax Commissioner determines there was a defect in the amnesty application or in the materials submitted in support of the amnesty application and subsequently issues a deficiency assessment upon the application or a return or amended return filed pursuant to this article, the Tax Commissioner has the authority to collect the additional tax due, impose applicable penalties, additions to tax and interest and to pursue any criminal prosecution as may ordinarily be brought with respect to the defect as if no amnesty had been granted the taxpayer.

(f) Mistake or misrepresentation of material fact. -– The Tax Commissioner may review all cases in which amnesty has been granted and may on the basis of a mistake or misrepresentation of a material fact, rescind the grant of amnesty, or in lieu thereof, appropriate review of the grant of amnesty may be obtained by proceeding under article nine or ten, or both, of this chapter. The taxpayer may appeal the Tax Commissioner's order rescinding the grant of amnesty by filing a petition for appeal with the office of tax appeals, established in article ten-a of this chapter, within thirty days after receipt of the Tax Commissioner's order, which shall be served by personal service or by certified mail.

(g) False or fraudulent amnesty return. -– Any taxpayer who files an amnesty tax return or amended return that is false or fraudulent shall be subject to applicable civil penalties and be referred for criminal prosecution.

(h) Attempt to evade or defeat tax. -– Any taxpayer who files a false amnesty application or attempts in any manner to defeat or evade payment of tax or interest under this amnesty program, shall be subject to applicable civil penalties and be referred for criminal prosecution.

§11-10D-8. Publicity efforts.

The Tax Commissioner shall cause the tax amnesty program to be adequately publicized so as to maximize public awareness of and participation in the program.

§11-10D-9. Examination of amnesty returns and taxpayer books and records.

Nothing in this article shall prevent the Tax Commissioner or any authorized employee or agent of the commissioner from examining the books, paper, records and equipment of any taxpayer or other person in order to verify the accuracy and completeness of the application for amnesty or of any tax return filed or payment made under this article, as provided in article ten of this chapter, and to ascertain and assess any tax or other liability owed to the state for any tax administered under article ten of this chapter.

§11-10D-10. Disposition of revenue collected.

There is hereby created in the State Treasury a special fund to be known as the "tax amnesty fund" into which shall be deposited all payments received under the tax amnesty program. On a monthly basis, the tax amnesty fund shall be distributed as follows:

(1) Dedicated taxes. -– A dedicated tax and applicable interest collected under the tax amnesty program shall be deposited in the fund or account in which the tax would have been deposited had the tax been timely paid; and

(2) Other taxes. -– After complying with subdivision (1) of this section, all other funds collected under the tax amnesty program shall be deposited into the General Revenue Fund.

§11-10D-11. Penalty on liabilities eligible for amnesty for which taxpayer did not apply for amnesty.

(a) If a taxpayer has a liability that would be eligible for amnesty under this article but the taxpayer fails to apply for amnesty within the designated amnesty period as determined in this article, or, after applying for amnesty, fails to satisfy all of the requirements for amnesty, then a penalty in the amount of ten percent of the unpaid liability shall be added to the amount of any unpaid taxes eligible for amnesty.

(b) The Tax Commissioner shall assess the penalty provided in subsection (a) of this section unless:

(1) Taxpayer provides evidence satisfactory to the commissioner which demonstrates that taxpayer's failure to apply for amnesty or his or her failure to satisfy all of the requirements for amnesty was not an intentional attempt to avoid the payment of taxes and was based on the taxpayer's mistaken belief that he or she did not have any liability eligible for amnesty; or

(2) Taxpayer's failure to apply for amnesty, in the case of an assessment issued before the start of or during the amnesty period, is due to taxpayer contesting in an administrative or judicial forum the disputed liability.

§11-10D-12. Report to Legislature and Governor.

On or before July 1, 2005, the Tax Commissioner shall issue a report to the Legislature and the Governor detailing the implementation and results of the tax amnesty program provided in this article. This report shall include, but not be limited to, the following information:

(1) A detailed breakdown of the Tax Commissioner's administrative costs in implementing the program;

(2) The total number of tax amnesty returns filed, by tax and by whether the returns are new returns or amended returns;

(3) The gross tax amnesty revenues collected by tax, which shall also be broken down into the following categories:

(A) Amounts represented by assessments made, but not finalized, and by liens filed by the Tax Commissioner before the first day of the amnesty period; and

(B) All other amounts;

(4) The total dollar amount of revenue collected by the program to a date no earlier than thirty days before the date of the report required by this section, which shall be further allocated by type of tax, interest on the tax to which the payment relates;

(5) The total amount of interest forgiven under the program;

(6) The total amount of additions to tax forgiven under the program;

(7) The total amount of penalties (not including additions to tax or interest) collected under the program; and

(8) Any other statistical information that the Tax Commissioner determines to be necessary to measure the net impact of this tax amnesty program.

§11-10D-13. Suspension of inconsistent code provisions.

All provisions of article ten, chapter eleven of this code and all provisions of tax statutes administered under article ten of this chapter that are inconsistent with the provisions of this article are suspended to the extent necessary to carry out the provisions of this article.

§11-10E-1. Short title.

This article may be cited as the "Tax Shelter Voluntary Compliance Act."

§11-10E-2. Tax shelter voluntary compliance program.

(a) In general. -- The Tax Commissioner shall establish and administer a tax shelter voluntary compliance program for eligible taxpayers subject to tax under article twenty-one and article twenty-four of this chapter. The program shall be conducted from August 1, 2006, through November 1, 2006, and shall apply to personal income tax and corporation net income tax liabilities attributable to the use of tax avoidance transactions for taxable years beginning before January 1, 2006.

(b) The department is authorized to adopt rules (including interpretive and emergency rules), issue forms and instructions, issue administrative notices, and take such other actions as it deems necessary to implement the provisions of this article.

(c) Election. -- An eligible taxpayer that meets the requirements of subsection (d) of this section with respect to any taxable year to which this article applies may elect to participate in the program under either method below for any particular tax avoidance transaction period. Such election shall be made separately for each taxable year in the form and manner prescribed by the Tax Commissioner, and once made shall be irrevocable.

(1) Voluntary compliance without appeal. -- If an eligible taxpayer elects to participate under this paragraph: (i) The Tax Commissioner shall abate and not seek to collect any penalty that may be applicable to the underreporting or underpayment of West Virginia income tax attributable to the use of tax avoidance transactions for such taxable year; (ii) except as otherwise provided in this article, the Tax Commissioner shall not seek civil or criminal prosecution against the taxpayer for such taxable year with respect to tax avoidance transactions; and (iii) the taxpayer may not file a claim for credit or refund with respect to the tax avoidance transaction for such taxable year. Nothing in this subsection shall preclude a taxpayer from filing a claim for credit or refund for the same taxable year in which a tax avoidance transaction was reported if such credit or refund is not attributable to the tax avoidance transaction. No penalty may be waived or abated under this article if the penalty imposed relates to an amount of West Virginia income tax assessed prior to August 1, 2006.

(2) Voluntary compliance with appeal. -- If an eligible taxpayer elects to participate under this paragraph, then: (i) The Tax Commissioner shall abate and not seek to collect the penalties for failure to report listed transactions, with respect to such taxable year; (ii) except as otherwise provided in this article, the Tax Commissioner shall not seek civil or criminal prosecution against the taxpayer for such taxable year with respect to tax avoidance transactions; and (iii) the taxpayer may file a claim for credit or refund as provided in article ten of this chapter with respect to such taxable year. Notwithstanding any other provision of the code to the contrary, the taxpayer may not file an appeal until after either of the following: (i) The Tax Commissioner issues a notice of denial; or (ii) the earlier of: (1) The date which is one hundred eighty days after the date of a final determination by the Internal Revenue Service with respect to the transactions at issue; or (2) the date that is three years after the date the claim for refund was filed or one year after full payment of all tax, including penalty and interest. No penalty may be waived or abated under this article if the penalty imposed relates to an amount of West Virginia income tax assessed prior to August 1, 2006.

(d) Eligible taxpayer. -- The tax shelter voluntary compliance program applies to any eligible taxpayer who, during the period from August 1, 2006, to November 1, 2006, does both of the following: (1) Files an amended return for the taxable year for which the taxpayer used a tax avoidance transaction to underreport the taxpayer's West Virginia income tax liability, reporting the total West Virginia taxable income and income tax for such taxable year computed without regard to any tax avoidance transactions; and (2) makes full payment of the additional income tax and interest due for such taxable year that is attributable to the use of the tax avoidance transaction. For purposes of this subsection (d), if the Tax Commissioner subsequently determines that the correct amount of West Virginia income tax was not paid for the taxable year, then the penalty relief under this section shall not apply to any portion of the underpayment not paid to the state that is attributable to a tax avoidance transaction.

An "eligible taxpayer" is an individual, partnership, estate, trust, corporation, limited liability company, joint stock company, or any other company, trustee, receiver, assignee, referee, society, association, business or any other person as described in the tax law, who or which has a tax liability relating to income tax imposed under article twenty-one or article twenty-four of this chapter. However, an otherwise eligible taxpayer would be prohibited from participating in the voluntary compliance initiative if:

(a) The taxpayer is a party to any federal or state criminal investigation for underreporting or underpayment of tax;

(b) As of the taxpayer's application date under the voluntary compliance initiative, the taxpayer is a party to any pending administrative proceeding or civil or criminal litigation relating to the designated taxes under the voluntary compliance initiative. An administrative proceeding or civil litigation shall be deemed not to be pending on the application date if the taxpayer withdraws from that proceeding or litigation before the Tax Commissioner's penalty waiver under the voluntary compliance initiative;

(c) The taxpayer has a criminal conviction concerning the tax on which penalty relief is sought; or

(d) The taxpayer was eligible to participate in the amnesty program under article ten-d of this chapter but did not do so, and the taxpayer participated in the voluntary compliance programs of any other state.

§11-10E-3. "Tax avoidance transaction" defined.

For purposes of this article, the term "tax avoidance transaction" means a plan or arrangement devised for the principal purpose of avoiding federal or state income tax or both. Tax avoidance transactions include, but are not limited to, "listed transactions" as defined in Treasury Regulations Section 1.6011-4(b)(2).

§11-10E-4. Use of evidence of participation in the program.

The fact of a taxpayer's participation in the tax shelter voluntary compliance program shall not be considered evidence that the taxpayer in fact engaged in a tax avoidance transaction.

§11-10E-5. Reportable transactions.

(a) For each taxable year in which a taxpayer is required to make a disclosure statement under Treasury Regulations Section 1.6011-4 (26 CFR 1.6011-4) (including any taxpayer that is a member of a consolidated group required to make such disclosure) with respect to a reportable transaction (including a listed transaction) in which the taxpayer participated in a taxable year for which a return is required, such taxpayer shall file a copy of such disclosure with the Tax Commissioner. Disclosure under this subsection is required to be made by any taxpayer that is a member of a unitary business group that includes any person required to make a disclosure statement under Treasury Regulations Section 1.6011-4. Disclosure under this subsection is required with respect to any transaction entered into after February 28, 2000, that becomes a listed transaction at any time, and shall be made in the manner prescribed by the Tax Commissioner. With respect to transactions in which the taxpayer participated for taxable years ending before December 31, 2004, disclosure shall be made by the due date (including extensions) of the first annual return due after the effective date of this article. With respect to transactions in which the taxpayer participated for taxable years ending on and after December 31, 2004, disclosure shall be made in the time and manner prescribed in Treasury Regulations Section 1.6011-4(e). Notwithstanding the above, no disclosure is required for transactions entered into after February 28, 2000, and before January 1, 2005: (i) If the taxpayer has filed an amended West Virginia income tax return which reverses the tax benefits of the potential tax avoidance transaction; or (ii) as a result of a federal audit the Internal Revenue Service has determined the tax treatment of the transaction and a West Virginia amended return has been filed to reflect the federal treatment.

(b) Reportable transaction understatement penalty. -- If a taxpayer has a reportable transaction understatement for any taxable year, there shall be added to the tax an amount equal to twenty percent of the amount of that understatement. This penalty shall be deemed assessed upon the assessment of the tax to which such penalty relates and shall be collected and paid on notice and demand in the same manner as the tax.

(1) Reportable transaction understatement. -- For purposes of this section, the term "reportable transaction understatement" means the product of: (i) The amount of the increase (if any) in taxable income, as determined by reference to the amount of post-apportioned income that results from a difference between the proper tax treatment of an item to which this subsection applies and the taxpayer's treatment of that item as shown on the taxpayer's return, including an amended return filed prior to the date the taxpayer is first contacted by the Tax Commissioner regarding the examination of the return; and (ii) the applicable tax rates.

(2) Items to which subsection (b) applies. -– This subsection shall apply to any item which is attributable to either of the following: (i) any listed transaction as defined in Treasury Regulations Section 1.6011-4; and (ii) any reportable transaction as defined in Treasury Regulations Section 1.6011-4 (other than a listed transaction) if a significant purpose of the transaction is the avoidance or evasion of federal income tax.

(3) Subsection (b) shall be applied by substituting thirty percent for twenty percent with respect to the portion of any reportable transaction understatement with respect to which the requirements of this subsection are not met.

(4) Reasonable cause exception. -–

(A) In general. -- No penalty shall be imposed under this subsection with respect to any portion of a reportable transaction understatement if it is shown by clear and convincing evidence that there was a reasonable cause for such portion and that the taxpayer acted in good faith with respect to such portion.

(B) Special rules. -- Subparagraph (A) does not apply to any reportable transaction (including a listed transaction) unless all of the following requirements are met:

(C)The relevant facts affecting the tax treatment of the item are adequately disclosed in accordance with this article. A taxpayer failing to adequately disclose shall be treated as meeting the requirements of this subparagraph: (i) If the penalty for that failure was rescinded; (ii) there is or was substantial authority for such treatment; and (iii) the taxpayer reasonably believed that such treatment was more likely than not the proper treatment.

(c) One hundred percent interest penalty for failure to participate. -- If an eligible taxpayer who fails to participate in the program is contacted by the Internal Revenue Service or the Tax Commissioner regarding the potential use of a tax avoidance transaction with respect to a taxable year and has a deficiency with respect to such taxable year or years, there shall be added to the tax attributable to the potential tax avoidance transaction an amount equal to one hundred percent of the interest due under article ten of this chapter for the period beginning with the statutory due date of the return (determined without regard to extensions) on which the income should have been reported to the date of the notice of assessment. Such penalty shall be deemed assessed upon the assessment of the interest to which such penalty relates and shall be collected and paid in the same manner as such interest. The penalty imposed by this subsection is in addition to any other penalty imposed by this article or article ten. This subsection shall apply to taxable years ending on and after December 31, 2005.

(d) Coordination with other penalties. -- Unless provided otherwise by rules, the penalties imposed by this section are in addition to any other penalty imposed by this article or article ten of this chapter.

§11-10E-6. Failure to register tax shelter or maintain list.

(a) Penalty imposed. -- Any person that fails to comply with the requirements of section eight or section nine of this article shall incur a penalty as provided in subsection (b). A person shall not be in compliance with the requirements of section eight unless and until the required registration has been filed and contains all of the information required to be included with such registration under such section eight or Section 6111 of the Internal Revenue Code. A person shall not be in compliance with the requirements of section nine unless, at the time the required list is made available to the Tax Commissioner, such list contains all of the information required to be maintained under such section nine or Section 6112 of the Internal Revenue Code.

(b) Amount of penalty. -- The following penalties apply:

(1) In the case of each failure to comply with the requirements of subsection (a), subsection (b) or subsection (d) of section eight, the penalty shall be $10,000;

(2) If the failure to comply with the requirements of subsection (a), subsection (b) or subsection (d) of section eight is with respect to a listed transaction described in subsection (c) of section eight, the penalty shall be $100,000;

(3) In the case of each failure to comply with the requirements of subsection (a) or subsection (b) of section nine, the penalty shall be $10,000; and

(4) If the failure to comply with the requirements of subsection (a) or subsection (b) of section nine is with respect to a listed transaction described in subsection (c) of section nine, the penalty shall be $100,000.

(c) Authority to rescind penalty. -- The office of tax appeals, with the written approval of the Tax Commissioner, may rescind all or any portion of any penalty imposed by this section with respect to any violation only if one or more of the following apply: (1) It is determined that failure to comply did not jeopardize the best interests of the state and is not due to any willful neglect or any intent not to comply; (2) it is shown that the violation is due to an unintentional mistake of fact; (3) rescinding the penalty would promote compliance with the requirements of this article and effective tax administration; or (4) the taxpayer can show that there was reasonable cause for the failure to disclose and that the taxpayer acted in good faith.

(d) Coordination with other penalties. -- The penalty imposed by this section is in addition to any penalty imposed by this article or article ten of this chapter.

§11-10E-7. Promoting tax shelters.

Except as herein provided, the provisions of Section 6700 of the Internal Revenue Code shall apply for purposes of this article as if such section applied to a West Virginia deduction, credit, exclusion from income, allocation or apportionment rule, or other West Virginia tax benefit. Notwithstanding Section 6700(a) of the Internal Revenue Code, if an activity with respect to which a penalty imposed under Section 6700(a) of the Internal Revenue Code, as applied for purposes of this article, involves a false or fraudulent statement as described in Section 6700(a)(2)(A) of the Internal Revenue Code, as applied for purposes of this article, the amount of the penalty imposed under this section shall be fifty percent of the gross income derived (or to be derived) from such activity by the person upon which the penalty is imposed.

§11-10E-8. Registration of tax shelters.

(a) Federal tax shelter. -- Any tax shelter organizer or material advisor required to register a tax shelter under Section 6111 of the Internal Revenue Code shall send a duplicate of the federal registration information to the Tax Commissioner not later than the day on which registration is required under federal law. Any person required to register under Section 6111 of the Internal Revenue Code who receives a tax registration number from the Secretary of the Treasury shall, within thirty days after request by the Tax Commissioner, file a statement of that registration number with the Tax Commissioner.

(b) Additional requirements for listed transactions. -- In addition to the requirements of subsection (a), for any transactions entered into on or after February 28, 2000, that become listed transactions (as defined under Treasury Regulations Section 1.6011-4) at any time, those transactions shall be registered with the Tax Commissioner (in the form and manner prescribed by the Tax Commissioner) by the later of: (i) Sixty days after entering into the transaction; (ii) sixty days after the transaction becomes a listed transaction; or (iii) July 1, 2006.

(c) Tax shelters subject to this section for taxable years commencing before January 1, 2007. -- The provisions of this section apply to any tax shelter herein described in which a person:

(1) Organizes or participates in the sale of an interest in a partnership, entity or other plan or arrangement; and

(2) Makes or causes another person to make a false or fraudulent statement with respect to securing a tax benefit or a gross valuation as to any material matter, and which is or was one or more of the following: (A) Organized in this state; (B) doing business in this state; or (C) deriving income from sources in this state.

(d) Tax shelters subject to this section for taxable years commencing on or after January 1, 2007. -- The provisions of this section apply to any tax shelter herein described in which a person organizes or participates in the sale of an interest in a partnership, entity or other plan or arrangement that is or was one or more of the following: (i) Organized in this state; (ii) doing business in this state; or (iii) deriving income from sources in this state.

(e) Tax shelter identification number. -- Any person required to file a return under this article and required to include on the person's federal income tax return a tax shelter identification number pursuant to Section 6111 of the Internal Revenue Code shall furnish such number when filing the person's West Virginia return.

§11-10E-9. Investor lists.

(a) Federal abusive tax shelter. -- Any person required to maintain a list under Section 6112 of the Internal Revenue Code and Treasury Regulations Section 301.6112-1 with respect to a potentially abusive tax shelter shall furnish such list to the Tax Commissioner not later than the time such list is required to be furnished to the Internal Revenue Service under federal income tax law. The list required under this section shall include the same information required with respect to a potentially abusive tax shelter under Treasury Regulations Section 301.6112-1 and any other information that the Tax Commissioner may require.

(b) Additional requirements for listed transactions. -- For transactions entered into on or after February 28, 2000, that become listed transactions (as defined under Treasury Regulations Section 1.6011-4) at any time thereafter, the list shall be furnished to the Tax Commissioner by the later of sixty days after entering into the transaction or sixty days after the transaction becomes a listed transaction.

(c) Tax shelters subject to this section. -- The provisions of this section apply to any tax shelter herein described in which a person:

(1) Organizes or participates in the sale of an interest in a partnership, entity or other plan or arrangement; and

(2) Makes or causes another person to make a false or fraudulent statement with respect to securing a tax benefit or a gross valuation as to any material matter; and which is or was one or more of the following: (A) Organized in this state; (B) doing business in this state; or (C) deriving income from sources in this state.

(d) Tax shelters subject to this section for taxable years commencing on or after January 1, 2007. -- The provisions of this section apply to any tax shelter herein described in which a person organizes or participates in the sale of an interest in a partnership, entity or other plan or arrangement that is or was one or more of the following: (i) Organized in this state; (ii) doing business in this state; or (iii) deriving income from sources in this state.

§11-10E-10. Suspension of inconsistent code provisions.

All provisions of article ten, chapter eleven of this code and all provisions of tax statutes administered under said article ten of this chapter that are inconsistent with the provisions of this article are suspended to the extent necessary to carry out the provisions of this article.

§11-11-1. Short title; arrangement and classification.

This article shall be known as the "West Virginia Estate Tax Act."

§11-11-2. Definitions.

(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) shall have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition.

(b) Terms defined.

(1) Alien. -- The term "alien" means a decedent who, at the time of his or her death, was not domiciled in this state or any other state of the United States and was not a citizen of the United States.

(2) Decedent or transferor. -- The terms "decedent" or "transferor" are used herein interchangeably and mean a deceased natural person by or from whom a transfer is made; and include any testator, intestate grantor, bargainor, vendor, assignor, donor, joint tenant or insured.

(3) Delegate. -- The term "delegate" in the phrase "or his or her delegate," when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Department duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the function or functions mentioned or described in the context.

(4) Estate or property. -- The terms "estate" or "property" mean the real or personal property or interest therein of a decedent or transferor and includes all the following:

(A) All intangible personal property of a resident decedent within or without this state or subject to the jurisdiction of this state.

(B) All intangible personal property in this state belonging to a deceased nonresident of the United States, including all stock of a corporation organized under the laws of this state, or which has its principal place of business or does the major part of its business in this state, or of a federal corporation or national bank which has its principal place of business or does the major part of its business in this state, excluding, however, savings accounts and savings and loan associations operating under the authority of the state banking commissioner or the federal home loan bank board, and bank deposits, unless those deposits are held and used in connection with a business conducted or operated, in whole or in part, in this state.

(5) Federal credit. -- The term "federal credit" means the maximum amount of the credit for state death taxes allowable by Section 2011, credit against federal estate tax (or Section 2102 in the case of an alien) and Section 2602, credit against the federal tax on generation-skipping transfers of the United States Internal Revenue Code of 1954, as amended or renumbered, or in successor provisions of the laws of the United States, in respect to a decedent's taxable estate. The term "maximum amount" shall be construed so as to take full advantage of such credit as the laws of the United States may allow: Provided, That in no event shall such amount be less than the federal credit allowable by Sections 2011, 2102 and 2602 of the Internal Revenue Code, as it existed on January 1, 1985: Provided, however, That for estates of decedents dying after December 31, 2001, such amount may in no event be less than the federal credit allowable by Sections 2011, 2102, and 2604 of the Internal Revenue Code, as amended by the estate, gift and generation - skipping transfer tax provisions of Public Law 107-16, the Economic Growth and Tax Relief Reconciliation Act of 2001.

(6) Gross estate. -- The term "gross estate" means the gross estate of the decedent as defined in Section 2031 (or Section 2103 in the case of an alien) of the United States Internal Revenue Code of 1954, as amended or renumbered, or in successor provisions of the laws of the United States.

(7) Includes and including. -- The words "includes" and "including" when used in a definition contained in this article shall not be deemed to exclude other things otherwise within the meaning of the term being defined.

(8) Intangible personal property. -- The term "intangible personal property" means incorporeal personal property including deposits in banks, negotiable instruments, mortgages, debts, receivables, shares of stock, bonds, notes, credits, evidences of an interest in personal property, evidences of debt and chooses in action generally.

(9) Internal revenue code. -- The term "Internal Revenue Code" means the United States Internal Revenue Code of 1954, as amended and in effect on January 1, 1985, including all changes to such code enacted subsequent to such date, that are similar to or a replacement of the section cited or referred to.

(10) Net estate. -- The term "net estate" means the net estate of the decedent as defined in Section 2051 of the United States Internal Revenue Code of 1954, as amended or renumbered, or in successor provisions of the laws of the United States.

(11) Nonresident. -- The term "nonresident" means a decedent who was a citizen of the United States, but was domiciled outside the State of West Virginia at the time of his or her death.

(12) Notice. -- The term "notice" means a written notice sent to the last known address of the addressee and shall be effective upon mailing.

(13) Other state. -- The term "other state" means any state of the fifty states in the United States (other than this state) and includes the District of Columbia and any possession or territory of the United States.

(14) Person. -- The term "person" includes natural person, corporation, society, association, partnership, joint venture, syndicate, estate, trust or other entity under which business or other activities may be conducted.

(15) Person required to file. -- The phrase "person required to file" means any person, including a personal representative, qualified heir, distributee or trustee required or permitted to file a federal estate tax return, or a West Virginia estate tax return, pursuant to the provisions of the Internal Revenue Code or this article.

(16) Personal representative. -- The terms "personal representative" and "fiduciary" are used interchangeably and mean:

(A) The personal representative of the estate of the decedent, appointed, qualified and acting within this state; or

(B) If there is no personal representative appointed, qualified and acting within this state, then any person in actual or constructive possession of the West Virginia gross estate of the decedent. The term "personal representative" includes the executor of a will, the administrator of the estate of a deceased person, the administrator of such estate with the will annexed, the administrator de bonis non of such estate, whether there be a will or not, the sheriff or other officer lawfully charged with the administration of the estate of a deceased person, and every other curator or committee of a decedent's estate for or against whom suits may be brought for causes of action which accrued to or against such decedent.

(17) Real property situated in this state. -- The phrase "real property situated in this state" means any and all interests in real property located in this state, including leasehold interests, royalty interests, production payments and working interests in coal, oil, gas and other natural resources.

(18) Resident. -- The term "resident" means a decedent who was domiciled in the State of West Virginia at the time of his or her death.

(19) State. -- The term "state" means any state, territory or possession of the United States and the District of Columbia.

(20) Tangible personal property. -- The term "tangible personal property" means corporeal personal property including money.

(21) Tax. -- The term "tax" means the tax imposed by this article, and includes any additions to tax, penalties and interest imposed by this article or article ten of this chapter.

(22) Tax commissioner. -- The term "Tax Commissioner" means the Tax Commissioner of the State of West Virginia or his or her delegate.

(23) Taxable estate. -- The term "taxable estate" means the taxable estate of the decedent as defined in Section 2051 (or Section 2106 in the case of an alien) of the United States Internal Revenue Code of 1954, as amended or renumbered, or in successor provisions of the laws of the United States.

(24) Taxpayer. -- The term "taxpayer" means any person required to file a return for the tax imposed by this article and any person liable for payment of the tax imposed by this article.

(25) This code. -- The term "this code" means the Code of West Virginia, 1931, as amended.

(26) This state. -- The term "this state" means the State of West Virginia.

(27) Transfer. -- The term "transfer" means "transfer" as defined in Sections 2001, 2101, 2601 of the United States Internal Revenue Code of 1954, as amended or renumbered, or in successor provisions of the laws of the United States. It includes the passage of any property, or any interest therein, or income therefrom, in possession or enjoyment, present or future, in trust or otherwise, whether by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift or appointment.

(28) Transferee. -- The term "transferee" means any person to whom a transfer is made and includes any legatee, devisee, heir, next of kin, grantee, donee, vendee, assignee, successor, survivor or beneficiary.

(29) United States. -- The term "United States", when used in a geographical sense, includes only the fifty states and the District of Columbia.

(30) Value. -- The term "value" means the value of property, the value of the gross estate or the value of the taxable estate as finally determined for federal estate tax purposes under the laws of the United States relating to federal estate taxes.

(c) Any term used in this article shall have the same meaning as when used in a comparable context in the laws of the United States relative to estate taxes, unless a different meaning is clearly required by the provisions of this article. Any reference in this article to the laws of the United States relating to federal estate taxes shall mean the provisions of the Internal Revenue Code of 1954, and amendments thereto, and other provisions of the laws of the United States relating to federal estate taxes, as the same may be or become effective at any time or from time to time.

§11-11-3. Imposition of tax.

Whenever a federal estate tax is payable to the United States, there is hereby imposed a West Virginia estate tax equal to the portion, if any, of the maximum allowable amount of federal credit for state death taxes which is attributable to property located in this state, or within its taxing jurisdiction. In no event, however, shall the estate tax hereby imposed result in a total death tax liability to this state and the United States in excess of the death tax liability to the United States which would result if this article were not in effect: Provided, That the estate tax hereby imposed shall not be affected by other credits properly allowable in computing the federal estate tax except that the unified credit established in Section 2010 of the Internal Revenue Code of 1986, as amended, shall be applied before calculating the West Virginia estate tax.

§11-11-4. Tax on transfer of estate of residents; credit; property of residents defined.

(a) Imposition of tax. -- A tax in the amount of the federal credit is imposed on the transfer of the taxable estate of every resident decedent, subject, where applicable, to the credit provided for in subsection (b).

(b) Credit. -- If property of a resident is subject to a death tax imposed by another state for which a federal credit is allowed, the amount due under this section shall be credited with the lesser of:

(1) The amount of the death tax paid to the other state, or states, and credited against the federal estate tax and federal tax on generation-skipping transfers; and

(2) The amount computed by multiplying the amount of the federal credit by a fraction, the numerator of which is the value of that part of the gross estate over which another state (or states) has (or have) jurisdiction to the same extent to which West Virginia would exert jurisdiction under this article with respect to residents of such other state (or states). The denominator of the fraction shall be the value of the decedent's gross estate.

(c) Property of resident. -- The property of a resident includes:

(1) Real property situated in this state;

(2) Tangible personal property having its actual situs in this state; and

(3) Intangible personal property owned by the resident, regardless of where it is located.

§11-11-5. Tax on transfer of estate of nonresidents; property of nonresidents defined; exemption.

(a) Imposition of tax. -- A tax in an amount computed as provided in this section is imposed on the transfer of the taxable estate located in West Virginia of every nonresident decedent.

(b) Amount of tax. -- The tax shall be an amount computed by multiplying the federal credit by a fraction, the numerator of which is the value of that part of the gross estate over which West Virginia has jurisdiction for estate tax purposes. The denominator shall be the value of the decedent's gross estate.

(c) Property of nonresident. -- For purposes of this section, property included in the gross estate of a nonresident which is taxable under this section shall include:

(1) Real property and real property interests located in this state, including (but not limited to) mineral interests, royalties, production payments, leasehold interests or working interests in coal, oil, gas or any other natural resource.

(2) Tangible personal property having an actual situs in this state.

§11-11-6. Tax on transfer of estate of aliens.

(a) Imposition of tax. -- A tax in the amount computed as provided in this section is imposed on the transfer of the taxable estate located in West Virginia of every alien. Taxable transfers include:

(1) Real property situated in this state;

(2) Tangible personal property having an actual situs in this state; and

(3) Intangible personal property physically present within this state of every decedent who, at the time of his or her death, was not a citizen of the United States.

(b) Amount of tax. -- The tax shall be an amount computed by multiplying the federal credit by a fraction, the numerator of which shall be the value of that part of the gross estate over which this state has jurisdiction for estate tax purposes. The denominator shall be the value of the decedent's gross, wherever situate, that is taxable by the United States.

(c) Stock of West Virginia corporations. -- For purposes of this section, stock in a corporation organized under the laws of this state shall be deemed to be physically present within this state.

§11-11-7. Nonprobate inventory of estates; penalties.

(a) The personal representative of every resident decedent who owned or had an interest in any nonprobate personal property, and the personal representative of every nonresident decedent who owned or had an interest in any nonprobate personal property which is a part of the taxable estate located in West Virginia, shall, under oath, list and appraise on a nonprobate inventory form prescribed by the Tax Commissioner all tangible and intangible nonprobate personal property owned by the decedent or in which the decedent had an interest, at its fair market value on the date of the decedent's death. The nonprobate personal property to be included on the nonprobate inventory form includes, but is not limited to, the following:

(1) Personal property held as joint tenants with right of survivorship with one or more third parties;

(2) Personal property payable on the death of the decedent to one or more third parties;

(3) Personal property held by the decedent as a life tenant;

(4) Insurance on the decedent's life payable to beneficiaries other than the executor or administrator of the decedent's estate;

(5) Powers of appointment;

(6) Annuities;

(7) Transfers during the decedent's life in which any beneficial interest passes by trust or otherwise to another person by reason of the death of the decedent;

(8) Revocable transfers in trust or otherwise;

(9) Taxable gifts under Section 2503 of the United States Internal Revenue Code of 1986; and

(10) All other nonprobate personal property included in the federal gross estate of the decedent.

(b) For purposes of this section, "nonprobate personal property" means all personal property which does not pass by operation of the decedent's will or by the laws of intestate descent and distribution or is otherwise not subject to administration in a decedent's estate at common law.

(c) The personal representative shall prepare the nonprobate inventory form and file it, together with the appraisement form required by section fourteen, article one, chapter forty-four of this code, for estates of decedents dying on or after July 13, 2001, with the clerk of the county commission or the fiduciary supervisor within ninety days of the date of qualification of the personal representative in this state: Provided, That for estates of decedents dying on or after July 13, 2001, but before the date the amendments to this section become effective, the requirement to file the nonprobate inventory form with the clerk or supervisor applies only if that form has not already been filed with Tax Commissioner.

(d) The nonprobate inventory form shall be maintained and preserved by the clerk of the county commission or the fiduciary supervisor, but shall not be recorded in the records of the clerk of the county commission. The nonprobate inventory form is confidential tax return information subject to the provisions of section five-d, article ten, chapter eleven of this code and may not be disclosed by the clerk of the county commission and his or her officers and employees or former officers and employees. Nothing in this section may be construed to hinder, abrogate or prevent disclosure of information as authorized in section thirty-five, article eleven, chapter eleven of this code.

(e) Any personal representative who fails to comply with the provisions of this section, without reasonable cause, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $500.

§11-11-8. Estate tax returns.

(a) When no return required. -- No West Virginia estate tax return needs to be filed if the estate of the decedent is not subject to the tax imposed by this article.

(b) Returns by personal representative. -- The personal representative of every estate subject to the tax imposed by this article, who is required by the laws of the United States to file a federal estate tax return, shall file with the Tax Commissioner, on or before the date the federal estate tax return is required to be filed:

(1) A return for the tax due under this article; and

(2) An executed copy of the federal estate tax return.

(c) Returns by beneficiaries.

(1) If the personal representative fails to make a complete return as to any part of the gross estate of the decedent, he shall include in his return a description of such part and the name of every person holding a legal or beneficial interest therein. The providing of such information shall not, in and of itself, exonerate the personal representative from any additions to tax or penalties prescribed by law for failure to file a complete return.

(2) Upon notice from the Tax Commissioner, a beneficiary of the estate, or other person holding a legal or beneficial interest therein, shall file a return under this article providing such information as the Tax Commissioner may request pertaining to the interest of the beneficiary, or other person, in the estate of the decedent.

(d) Returns due. -- Returns made under this article shall be filed within nine months after the date of the decedent's death.

(e) Place of filing. -- Estate tax returns shall be filed with the Tax Commissioner at his office in Charleston, West Virginia.

§11-11-9. Extension of time for filing return.

(a) Extension of time. -- If the personal representative has obtained an extension of time for filing the federal estate tax return, the filing required by section eight shall be extended until the end of the time period granted in the extension of time for filing the federal estate tax return.

(b) Copy of federal extension. -- Upon obtaining an extension of time for filing the federal estate tax return, the personal representative shall provide the Tax Commissioner with a true copy of the instrument providing for this extension within thirty days after receipt of it.

(c) Payment of tax. -- An extension of the time for filing a return shall not operate to extend the time for payment of the tax.

§11-11-10. Amended returns.

(a) When required. -- If the personal representative files an amended federal estate tax return, he shall, within sixty days thereafter, file an amended return under this article, and give such information as the Tax Commissioner may require. Such amended return shall include a copy of the amended federal estate tax return.

(b) Payment of additional tax. -- Any additional tax due under this article shall be remitted when the amended return is filed.

§11-11-11. Returns executed by Tax Commissioner.

(a) Authority of Tax Commissioner to execute return. -- If any person fails to file a return at the time prescribed by law, or files (willfully or otherwise) a false or fraudulent return, the Tax Commissioner shall make the return from his own knowledge and from such information as he can obtain through testimony or otherwise.

(b) Status of returns. -- A return so made and subscribed by the Tax Commissioner shall be prima facie good and sufficient for all legal purposes.

§11-11-12. Report of change in federal estate tax.

(a) Report of federal change. -- If the amount of the federal taxable estate reported on federal estate tax return is changed or corrected by the United States Internal Revenue Service, or other competent authority, the personal representative shall report the change or correction within ninety days after the final determination of the change, or correction, or as otherwise required by the Tax Commissioner. Such report shall concede the accuracy of the change, or correction, or state whether and wherein the determination is believed to be erroneous. The imposition of an additional federal estate tax under Section 2032A of the Internal Revenue Code shall constitute a change. The Tax Commissioner may by regulation prescribe exceptions to the requirements of this section as he deems appropriate.

(b) Payment of deficiency. -- If, based upon any deficiency in federal estate tax and the ground therefore, it shall appear that the amount of tax previously paid under this article is less than the amount of tax due and owing, the difference together with interest at the rate of one percent per month from the date the tax became delinquent under this article shall be remitted at the time the notice required by this section is filed.

(c) Failure to give notice. -- In the event the personal representative required to file the return and pay the tax required by this article shall fail to give the notice required by this section, any additional tax which may be due and owing may be assessed by the Tax Commissioner at any time notwithstanding the provisions of section fifteen, article ten of this chapter.

§11-11-13. Payment of tax.

(a) Payment by personal representative. -- The tax imposed by this article shall be paid by the personal representative. Liability for payment of the tax continues until the tax is paid.

(b) Due date. -- The tax imposed by this article is due and payable at the date of the decedent's death.

(c) Delinquent date. -- The tax imposed by this article becomes delinquent upon the expiration of nine months after the date on which it becomes due and payable, if not paid within that time.

§11-11-14. Extension of time for payment.

(a) General. -- If an extension of time for payment of federal estate tax has been granted and the Tax Commissioner finds that payment by the due date of the tax imposed by this article, or any part thereof, would impose undue hardship upon the estate, the Tax Commissioner may extend the time for payment of any such part, but no extension shall be for more than one year at a time. The aggregate of extensions with respect to any estate shall not exceed ten years from the due date.

(b) Payment of tax where extension granted. -- If an extension of time for payment has been granted under this section, the amount in respect of which the extension is granted shall be paid on or before the date of the expiration of the period of the extension, unless a further extension is granted. If the time for payment is thus extended, there shall be collected, as part of such amount, interest at the rate of twelve percent per annum of the amount due, from the date which is nine months after the date of death of the decedent until the date the tax is paid.

§11-11-15. Interest.

(a) Rate. -- The tax imposed by this article does not bear interest if it is paid before the expiration of nine months after the date of death of the decedent. If that tax is paid after that date, the tax bears interest at the rate of twelve percent per annum from the date by which it should have been paid (determined without regard to any extension of time for payment) until the date it is paid.

(b) Application of payment. -- Every payment of delinquent tax shall be applied, first, to any interest due on that tax, secondly, to any additions to tax or penalty imposed by article ten of this chapter, and then, if there is any balance, to the tax itself.

§11-11-16. Receipts for taxes.

(a) Receipts in triplicate. -- The Tax Commissioner shall issue to the personal representative, upon payment of the tax imposed by this article, receipts in triplicate, any of which shall be sufficient evidence of such payment, and shall entitle the personal representative to be credited and allowed the amount thereof by any county commission or court having jurisdiction to audit or settle his accounts.

(b) Application of personal representative for receipt. -- If the personal representative files a complete and correct return under this article, and there has been a final determination of the federal estate tax liability, he may make written application to the Tax Commissioner for determination of the amount of the tax and discharge from personal liability therefor. The Tax Commissioner, as soon as possible, and in any event within one year after receipt of such application, shall notify the personal representative of the amount of the tax; and upon payment thereof the personal representative shall be discharged from personal liability for any additional tax thereafter found to be due, and shall be entitled to receive from the Tax Commissioner a receipt in writing showing such discharge: Provided, That such discharge shall not operate to release the gross estate of the lien of any additional tax that may thereafter be found to be due nor release the personal representative if there has been negligence or fraud.

§11-11-17. Special lien for estate tax.

(a) Lien created. -- Unless the tax imposed by section three of this article is sooner paid in full, or becomes unenforceable by reason of lapse of time, it shall be a lien for ten years after the death of the decedent upon all property, real or personal, of the decedent located in this state, except as provided in subsection (b), (c) or (d) of this section.

(b) Liability of transferees and others; divestment and reattachment of lien. -- If the tax imposed by this article is not paid when due, then the spouse, transferee, trustee (except the trustee of an employees' trust which meets the requirements of Section 401(a) of the Internal Revenue Code of 1986, as amended), surviving tenant, person in possession of the property by reason of the exercise, nonexercise, or release of a power of appointment, or beneficiary, who receives, or possesses on the date of the decedent's death, property included in the gross estate for federal estate tax purposes, to the extent of the value at the time of the decedent's death of the property, shall be personally liable for the tax. Any part of the property transferred by (or transferred by a transferee of) the spouse, transferee, trustee, surviving tenant, person in possession, or beneficiary, to a purchaser or holder of a security interest shall be divested of the lien provided in subsection (a) of this section. However, a like lien shall attach to all the property not so transferred of such spouse, transferee, trustee, surviving tenant, person in possession, or beneficiary, or transferee of any person.

(c) Continuance after discharge of fiduciary; divestment and reattachment of lien. -- The provisions of section twenty of this article eleven (relating to discharge of fiduciary from personal liability) shall not operate as a release of any part of the gross estate from the lien provided in subsection (a) of this section for any deficiency that may thereafter be determined to be due, unless such part of the gross estate (or any interest therein) has been transferred to a purchaser or a holder of a security interest, in which case the part (or the interest) so transferred shall be divested of the lien provided in subsection (a) of this section or to any claim or demand for any such deficiency. However, a like lien shall attach to the consideration received from the purchaser or holder of a security interest, by the heirs, legatees, devisees, or distributees.

(d) Other exceptions. --

(1) The part of the property of the decedent as may at the time be subject to the lien provided for in subsection (a) of this section shall be divested of such lien to the extent used for payment of charges against the estate or expenses of its administration allowed by the county commission or court having jurisdiction thereof.

(2) The part of the personal property of the decedent as may at the time be subject to the lien provided for in subsection (a) of this section shall be divested of the lien upon the conveyance or transfer of the property to a bona fide purchaser or holder of a security interest for an adequate and full consideration in money or money's worth. The liens shall then attach to the consideration received for the property from the purchaser or holder of a security interest.

(e) Release of lien. -- Subject to such regulations as the Tax Commissioner may prescribe, the Tax Commissioner shall issue a certificate of release of any lien arising under this section not later than thirty days after the day on which the Tax Commissioner finds that the liability for the amount assessed, together with all interest and applicable penalties and additions to tax in respect thereof, has been fully satisfied or has become legally unenforceable.

(f) Certificate of discharge. -- Subject to such regulations as the Tax Commissioner may prescribe, the Tax Commissioner may issue a certificate of discharge of any or all of the property subject to the lien imposed by this section if the Tax Commissioner finds that the liability secured by the lien has been fully satisfied or provided for.

(g) Effect of certificate. --

(1) Conclusiveness. -- Except as provided in subdivisions (2) and (3) of this subsection, if a certificate is issued pursuant to subsection (f) of this section by the Tax Commissioner and is filed in the same office as the notice of lien to which it relates (if such notice of lien has been filed), the certificate shall have the following effect:

(A) In the case of a certificate of release, the certificate shall be conclusive that the lien referred to in the certificate is extinguished;

(B) In the case of a certificate of discharge, the certificate shall be conclusive that the property covered by the certificate is discharged from the lien; and

(C) In the case of a certificate of nonattachment, the certificate shall be conclusive that the lien of the State of West Virginia does not attach to the property of the person referred to in the certificate.

(2) Revocation of certification of release or nonattachment. -- If the Tax Commissioner determines that a certificate of release or nonattachment of a lien imposed by this section was issued erroneously or improvidently, or if a certificate of release of the lien was issued pursuant to a collateral agreement entered into in connection with a compromise under section five-q, article ten of this chapter, which has been breached, and if the period of limitation on collection after assessment has not expired, the Tax Commissioner may revoke the certificate and reinstate the lien:

(A) By mailing written notice, by certified mail, return receipt requested, of the revocation to the person against whom the tax was assessed at his or her last known address; and

(B) By filing notice of the revocation in the same office in which notice of lien to which it relates was filed (if the notice of lien had been filed).

Such reinstated lien: (i) Shall be effective on the date the notice of revocation is mailed to the taxpayer in accordance with the provisions of the foregoing paragraph (A), but not earlier than the date on which any required filing of notice of revocation is filed in accordance with the provisions of the foregoing paragraph (B); and (ii) shall have the same force and effect (as of the date), until the expiration of the period of limitation on collection after assessment, as a lien imposed by section eleven, article ten of this chapter (relating to lien for taxes).

(3) Certificates void under certain conditions. -- Notwithstanding any other provision of this article, any lien imposed by this section shall attach to any property with respect to which a certificate of discharge has been issued if the person liable for payment of the tax reacquires the property after the certificate has been issued.

§11-11-17a. Discharge of nonresident decedent’s real property in absence of ancillary administration, termination.

(a) The domiciliary personal representative of a nonresident decedent may apply to the Tax Commissioner for a certificate releasing all real property situate in this state included in decedent’s gross estate from any lien imposed by section seventeen of this article. In the absence of ancillary administration in this state, the Tax Commissioner may consider reliable and satisfactory evidence furnished by the personal representative regarding the value of real property and the amount of tax due under this article, or that no tax liability exists under this article with respect to any real property.

(b) If the Tax Commissioner determines that reliable and satisfactory evidence exists, an affidavit of value submitted by the personal representative made pursuant to and in conjunction with the evidence shall be marked as inspected by the commissioner and shall be filed by the estate in the county or counties of this state where the real property is situate.

(c) In determining tax liability, the Tax Commissioner may also consider an appraisal of the real property submitted in writing to the Tax Commissioner, paid for by the personal representative and made at the personal representative’s request. The appraisal shall be performed by a licensed real estate appraiser acceptable to the Tax Commissioner and it shall be filed in the county or counties where the real property is situate.

(d) If the Tax Commissioner is satisfied that no tax liability exists, or that the tax liability of the estate has been fully discharged, the Tax Commissioner may issue a certificate under subsection (f), section seventeen of this article.

(e) On and after July 1, 2017, the provisions of this section have no force or effect.

§11-11-18. Discharge of estate; notice of lien; limitation on lien; etc.

(a) Where no receipt for payment of the taxes, or no receipt of nonliability for taxes has been issued or recorded as provided for in this article, the property constituting the estate of the decedent in this state shall be deemed fully acquitted and discharged of all liability for estate taxes under this article after a lapse of ten years from the date of the filing with the Tax Commissioner of notice of the decedent's death, or after a lapse of ten years from the date of the filing with the Tax Commissioner of an estate tax return, whichever date shall be earlier, unless the Tax Commissioner shall make out and file and have recorded in the office of the clerk of the county wherein any part of the estate of the decedent may be situated in this state, a notice of lien against the property of the estate, specifying the amount or approximate amount of taxes claimed to be due to the state under this article, which notice of lien shall continue said lien in force for an additional period of five years, or until payment is made.

(b) Notwithstanding anything to the contrary in this section or this article, no lien for estate taxes under this article shall continue for more than twenty years from the date of death of the decedent, whether the decedent be a resident or a nonresident of this state.

§11-11-19. Final accounting delayed until liability for tax determined.

(a) If a personal representative is required to file a federal estate tax return for the estate of a decedent, then no final account of that personal representative shall be allowed or approved in any probate proceeding with respect to that estate, by the county commission, or the clerk thereof, before whom the proceeding is pending, unless the county commission finds that the tax imposed on the transfer of property by this article has been paid in full, or that no tax is due.

(b) No final account of a personal representative of an estate shall be allowed by any county commission, or clerk thereof, unless such account shows and the county commission, or clerk thereof, finds that all taxes imposed by this article upon the personal representative, which have become payable, have been paid.

(c) The certificate of release, discharge or nonattachment issued to the personal representative by the Tax Commissioner under section seventeen of this article shall be conclusive in the proceeding as to the liability or the payment of tax, to the extent provided in the certificate.

§11-11-20. Liability of personal representatives; etc.

(a) Personal representative. -- Any personal representative who distributes any property of an estate without first paying, securing another's payment of, or furnishing security for payment of the taxes due under this article, is personally liable for payment of the taxes due, to the extent of the value of any property that may come or that may have come into the possession of the personal representative. Security for payment of taxes due under this article shall be in an amount equal to or greater than the value of all property that is or has come into the possession of the personal representative, determined as of the time the security is furnished.

(b) Other person having control, custody or possession of property. -- Any person in this state who has control, custody or possession of any property includible in the gross estate of a decedent for federal estate tax purposes, and who delivers any of the property to the personal representative or other legal representative of the decedent outside this state without first paying, securing another's payment of, or furnishing security for payment of the taxes due under this article, is liable for the taxes due under this article to the extent of the value of the property delivered. Security for payment of the taxes due under this article shall be in an amount equal to or greater than the value of all property delivered to the personal representative or other legal representative of the decedent outside this state by such a person.

(c) Persons not having control. -- For the purpose of this section, persons do not have control, custody or possession of a decedent's property if they are not responsible for paying the tax due under this article, such as transferees, which term includes, but is not limited to, stockbrokers or stock transfer agents, banks and other depositories of checking and savings accounts, safe deposit companies and life insurance companies.

(d) Reliance upon Tax Commissioner's certificates. -- For the purposes of this section, any person in this state who has the control, custody or possession of any property includible in the gross estate of the decedent for federal estate tax purposes, and who delivers any of the property to the personal representative or other legal representative of the decedent, may rely upon the release or certificate furnished by the Tax Commissioner under section seventeen of this article to the personal representative as evidence of compliance with the requirements of this article, and make the deliveries and transfers as the personal representative may direct without being liable for any taxes due under this article with respect to any property.

(e) Discharge of personal liability for federal estate taxes. -- If a personal representative receives a discharge from personal liability for federal estate taxes pursuant to Section 2204 of the Internal Revenue Code of 1986, as amended, and if the personal representative makes written application to the Tax Commissioner for determination of the amount of the tax due under this article and for discharge from personal liability, the Tax Commissioner, within two months after receiving satisfactory evidence of the Section 2204 discharge, but not after the expiration of the period for issuance of a deficiency assessment, shall notify the personal representative of the amount of the tax due under this article, including the amount of any interest, additions to tax or penalties that are due. The personal representative, upon payment of the amount of which he is notified (other than any portion for which an extension of time for payment has been granted), and upon furnishing any bond that may be required by the Tax Commissioner to secure payment of any amount for which the time for payment has been extended, shall be discharged from personal liability for any deficiency in tax thereafter found to be due and shall be entitled to a receipt or writing showing the discharge.

§11-11-21. Duty of resident personal representative of nonresident decedent.

(a) General. -- A resident personal representative, holding personal property (tangible or intangible) of a deceased nonresident subject to tax under this article, shall not deliver such property to the personal representative of the domiciliary estate, or to any other person, until after the resident personal representative shall have deducted the tax therefrom, or collected it from the personal representative of the domiciliary estate and remitted it to the Tax Commissioner.

(b) Failure of domiciliary personal representative to pay tax. -- When the transfer of personal property of a nonresident decedent is taxable under this article and the personal representative of the domiciliary estate neglects or refuses to pay the tax upon demand of a resident personal representative, or if for any reason the tax is not paid within nine months after the decedent's death, the resident personal representative may, upon such notice as the circuit court of Kanawha County may direct, be authorized to sell such property, or if the same can be divided, such portion thereof as may be necessary, and shall deduct the tax from the proceeds of such sale and shall account for the balance, if any, in lieu of such property.

§11-11-22. Duties and powers of corporate personal representatives of nonresident decedents.

If the personal representative of the estate of a nonresident is a corporation duly authorized, qualified and acting as such personal representative in the jurisdiction of the domicile of the decedent, it shall be under the duties and obligations as to the giving of notices and filing of returns required by this article, and may bring and defend actions and suits as may be authorized or permitted by this article, and articles nine and ten of this chapter, to the same extent as an individual personal representative, notwithstanding that such corporation may be prohibited from exercising in this state any powers as personal representative. Nothing herein contained shall be taken or construed as authorizing corporations not authorized to do business in this state to qualify or act as personal representative, administrator or in any other fiduciary capacity, if otherwise prohibited by the laws of this state, except to the extent herein expressly provided.

§11-11-23. Proof of payment of death taxes to state of domicile.

(a) General. -- At any time before the expiration of eighteen months after the qualification in this state of any executor of the will of, or administrator of the estate of, any nonresident decedent, such executor or administrator shall file with the clerk of the county commission of the county in which he qualified proof that all death taxes which are due to the state of domicile of such decedent, or to any political subdivision thereof, have been paid, or secured, or that no such taxes are due, as the case may be, unless it appears that letters of probate or administration have been issued in the state of domicile.

(b) Form of proof. -- The proof required by subsection (a) may be in the form of a certificate issued by the official or body charged with the administration of the death tax laws of the domiciliary state.

(c) Notice to domiciliary state if proof not filed. -- If such proof is not filed within eighteen months after the qualification in this state of any personal representative of a nonresident decedent, then the clerk of the county commission shall forthwith notify by mail the official or body of the domiciliary state charged with the administration of the death tax laws thereof with respect to such estate and shall state in such notice, so far as it is known to him

(1) The name, date of death and last domicile of such decedent;

(2) The name and address of each executor or administrator;

(3) A summary of the values of the real estate, tangible personal property and intangible personal property, wherever situated, belonging to such decedent at the time of his death; and

(4) The fact that such executor or administrator has not filed, within the time prescribed by law, proof of payment of death taxes to the state of domicile of the nonresident decedent.

To such notice the clerk of the county commission shall attach a plain copy of the will and codicils of such decedent, if he died testate, or, if he died intestate, a list of his heirs and next of kin, so far as is known to such clerk.

(d) Petition of domiciliary state. -- Within sixty days after the mailing of the notice provided in the preceding subsection, the official or body charged with the administration of the death tax laws of the domiciliary state may file with the county clerk in this state a petition for an accounting in such estate. Such official body of the domiciliary state shall, for the purpose of this article, be a party interested for the purpose of petitioning such county clerk for such an accounting. If such petition be filed within the period of sixty days, such county clerk shall order such accounting and upon such accounting being filed and approved, shall decree the remission of the fiduciary appointed by the domiciliary probate court of the balance of the intangible personal property after payment of creditors and expenses of administration in this state.

(e) Final accounting not granted without compliance. -- Unless the provisions of either subsection (c) or (d) of this section shall have been complied with, no such executor or administrator shall be entitled to a final accounting or discharge by any county commission of this state.

§11-11-24. Domicile of decedent.

(a) General. -- For purposes of this article, every person shall be presumed to have died a resident and not a nonresident of this state:

(1) If such person has dwelled or lodged in this state during and for the greater part of any period of twelve consecutive months in the twenty-four months next preceding the decedent's death, notwithstanding the fact that from time to time during such twenty-four months such person may have sojourned outside of this state, and without regard to whether or not such person:

(A) May have voted in this state;

(B) May have been entitled to vote in this state; or

(C) May have been assessed for taxes in this state.

(2) If such person has been a resident of this state, sojourning outside this state.

(b) Proof of domicile. -- The burden of proof in an estate tax proceeding shall be upon any person claiming exemption by reason of alleged nonresidency. Domicile shall be determined exclusively in the proceedings provided in this chapter, and orders relating to domicile previously entered in any probate proceedings shall not be conclusive for purposes of the tax imposed by this article.

§11-11-25

Repealed.

Acts, 1988 Reg. Sess., Ch. 118.

§11-11-26. Sale of real estate by personal representative to pay tax.

Every personal representative shall have the same right and power to take possession of or sell, convey and dispose of real estate as assets of the estate for the payment of the tax imposed by this article, as he may have for the payment of the debts of the decedent.

§11-11-27. Prima facie liability for tax.

(a) The estate of each decedent whose property is subject to the laws of this state and which is required to file a federal estate tax return shall be deemed prima facie liable for payment of estate taxes under this article and shall be subject to a lien therefor in the amount as may be later determined to be due and payable on the estate as provided in this article.

(b) This presumption of liability shall begin on the date of the death of the decedent and shall continue until the full settlement of all taxes which may be found to be due under this article, the settlement to be shown by receipts for payment of all taxes due under this article, to be issued by the Tax Commissioner as provided for in this article.

(c) Whenever the Tax Commissioner determines that an estate described in subsection (a) of this section is not liable for payment of tax under this article, the Tax Commissioner shall issue to the personal representative a certificate in writing to that effect, showing the nonliability to tax, which certificate of nonliability shall have the same force and effect as a receipt showing payment of tax. This certificate of nonliability may be recorded and shall be admissible in evidence in like manner as receipts showing payment of taxes due under this article.

§11-11-28. Apportionment of West Virginia estate taxes; deduction of taxes by the fiduciary from shares of beneficiaries.

Whenever there is an estate tax levied or assessed under the provisions of any estate tax law of this state heretofore or hereafter enacted, the amount of the tax so paid shall be prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues in conformity with the provisions of section sixteen-a, article two, and section eighteen, article three-a, chapter forty-four of this code.

§11-11-29. Time for assessment of tax.

(a) General. -- The amount of estate tax due under this article shall be assessed on or before whichever of the following dates occurs last:

(1) The period specified in section fifteen, article ten of this chapter, during which an assessment may generally be issued;

(2) Within a period expiring ninety days after the last day on which the assessment of a deficiency in federal estate tax may lawfully be made under applicable provisions of the Internal Revenue Code; or

(3) Within ninety days after receipt of notice from a personal representative that the federal estate tax liability of an estate has been changed.

(b) Exceptions. -- In the case of a false or fraudulent return, or failure to file a return on or before the last day prescribed for filing, or failure of the personal representative to give the Tax Commissioner notice of a change in the federal estate tax liability of an estate, the tax may be assessed at any time.

§11-11-30. Refund of excess tax due to overpayment of federal estate tax.

(a) Claim for refund. -- Notwithstanding the provisions of section fourteen, article ten of this chapter, in the event of a final determination by the United States Internal Revenue Service, or other competent authority, of an overpayment of the estate's federal estate tax liability, the period of limitation upon claiming a refund reflecting such final determination in the taxes due under this article shall not expire until six months after such determination is made by the United States Internal Revenue Service or other competent authority.

(b) When determination becomes final. -- For purposes of this section, an administrative determination shall be deemed to have become final on the date of receipt by the personal representative, or other interested party, of the final payment to be made refunding federal estate tax or upon the last date on which the personal representative, or any other interested party, shall receive notice from the United States that an overpayment of federal estate tax has been credited by the United States against any liability other than the federal estate tax of said estate. A final judicial determination shall be deemed to have occurred on the date on which any judgment entered by a court of competent jurisdiction, determining that there has been an overpayment of federal estate tax, becomes final.

§11-11-31. Agreements as to amount of tax due.

For the purpose of facilitating the settlement and distribution of estates held by personal representatives, the Tax Commissioner may, on behalf of the state, agree to the amount of taxes due or to become due from such personal representative under the provisions of this article. Payment in accordance with such agreement shall be full satisfaction of the taxes to which the agreement relates.

§11-11-32.

Repealed.

Acts, 1996 Reg. Sess., Ch. 233.

§11-11-33. Administration of article by Tax Commissioner.

(a) The Tax Commissioner shall administer and enforce the tax imposed by this article. He is authorized to require such facts and information to be reported as he deems necessary to enforce the provisions of this article.

(b) Rules and regulations promulgated by the Tax Commissioner shall follow as nearly as practicable the rules and regulations of the secretary of the treasury of the United States. The construction of this article shall further its purpose to simplify the preparation of tax returns, aid in its interpretations through use of federal precedents and improve its enforcement.

(c) The Tax Commissioner may prescribe the form and content of any return or other documents, including a copy of part or all of a federal return, required to be filed under the provisions of this article.

(d) Reports and returns required to be filed under this article shall be preserved for four years and thereafter until the Tax Commissioner orders them destroyed.

§11-11-34. Appointment of special appraisers.

The Tax Commissioner may employ special appraisers for the purpose of determining the value of any property which is, or is believed by the Tax Commissioner to be, subject to the tax imposed by this article. Such special appraisers shall be paid such compensation as the Tax Commissioner deems proper.

§11-11-35. Privacy of information.

(a) Notwithstanding the provisions of article ten of this chapter, the tax return of an estate shall be open to inspection by or disclosure to:

(1) The personal representative of the estate;

(2) Any heir at law, or beneficiary under the will of the decedent; or

(3) The attorney for the estate or its personal representative or the attorney-in-fact duly authorized by any of the persons described in subdivision (1) or (2) of this section.

(b) Notwithstanding the provisions of article ten of this chapter, the personal representative of the decedent shall make the nonprobate inventory form of an estate available for inspection by or disclosure to:

(1) The personal representative of the estate;

(2) Any heir at law, beneficiary under the will of the decedent, a creditor who has timely filed a claim against the estate of the decedent with the fiduciary commissioner or fiduciary supervisor, or any party who has filed a civil action in any court of competent jurisdiction in which any asset of the decedent is in issue; or

(3) The attorney for the estate or its personal representative or the attorney-in-fact duly authorized by any of the persons described in subdivision (1) or (2) of this subsection.

§11-11-36. Money penalty for failure to produce records.

If any person:

(1) Fails to comply with any duty imposed upon him by this article; or

(2) Having in his possession or control any record, file or paper containing or supposed to contain any information concerning the estate of the decedent, or, having in his possession or control any property comprising part of the gross estate of the decedent, fails to exhibit the same upon request to the Tax Commissioner or any examiner, appraiser or attorney appointed pursuant to this article, who desires to examine the same in the performance of his duties under the article, such person shall be liable to a money penalty of not less than $10 nor more than $500 to be recovered, with costs of suit, in a civil action in the name of the state.

§11-11-37. Interpretation and construction.

(a) No inference, implication or presumption of legislative construction or intent shall be drawn or made by reason of the location or grouping of any particular section, provision or portion of this article; and no legal effect shall be given to any descriptive matter or heading relating to any section, subsection or paragraph of this article.

(b) When not otherwise provided for in this article, the rules of interpretation and construction applicable to the estate tax laws of the United States shall apply to, and be followed in, the interpretation of this article.

(c) The provisions of this article shall be liberally construed in order to ensure that the state of domicile of any decedent shall receive any death taxes, together with interest and penalties thereon, due it.

§11-11-38. Estates to which article applies; former law preserved.

(a) Persons dying after June 30, 1985. -- Except as otherwise specifically provided, the provisions of this article shall apply to the estate of every person dying on or after July 1, 1985.

(b) Persons dying before July 1, 1985. -- With respect to persons dying prior to July 1, 1985, the provisions of article eleven, chapter eleven of this code, in effect on January 1, 1985, are hereby continued in force, and fully preserved, until their objects have been fully accomplished.

§11-11-39. Effectiveness of this article.

This article shall remain in force and effect until either one of the following events occurs:

(1) This article is repealed by the Legislature; or

(2) The government of the United States ceases to allow credit against its estate tax for payment of state death taxes.

§11-11-40. General procedure and administration.

The provisions of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter, shall apply to the tax imposed by this article with like effect as if said act were set forth in extenso in this article, except where it is expressly and specifically provided in this article that a particular provision of this article shall govern and control.

§11-11-41. Criminal penalties.

Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of this chapter, shall apply to the tax imposed by this article with like effect as if said act were applicable only to the tax imposed by this article and were set forth in extenso in this article.

§11-11-42. Severability.

If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect, impair or invalidate other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.

§11-11-43. Effective date.

The amendments to this article made by this act shall take effect as provided in the Constitution of this state and, upon the effective date, these amendments shall apply to the estates of all decedents dying after June 30, 1985, for which no estate tax lien release has been issued by the Tax Commissioner prior to the effective date of these amendments in the year 1996, and to estates of all decedents dying on or after the effective date of these amendments.

§11-11A-1. Procedure and authority.

When the State Tax Commissioner claims that a decedent was domiciled in this state at the time of his death and the taxing authorities of another state or states make a like claim on behalf of their state or states, the State Tax Commissioner may make a written agreement of compromise with the other taxing authorities and the executor or administrator that a certain sum shall be accepted in full satisfaction of any and all death taxes imposed by this state, including any additions to tax, interest or penalties to the date of filing the agreement. The agreement shall also fix the amount to be accepted by the other states in full satisfaction of death taxes. The executor or administrator is hereby authorized to make such agreement. Either the State Tax Commissioner or the executor or administrator shall file the agreement, or a duplicate, with the authority that would be empowered to assess inheritance taxes for this state if there had been no agreement; and thereupon the tax shall be deemed conclusively fixed as therein provided. Unless the tax is paid within thirty days after filing the agreement, additions to tax, interest and penalties shall thereafter accrue upon the amount fixed in the agreement but the time between the decedent's death and the filing shall not be included in computing the same.

§11-11A-2. "State" defined.

As used in this article the word "state" means any state, territory or possession of the United States, and the District of Columbia.

§11-11A-3. Interpretation of article.

This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

§11-11A-4. Title.

This article may be cited as the "Uniform Act on Interstate Compromise of Death Taxes."

§11-11A-5. Applicability.

This article shall apply to estates of decedents dying before or after its effective date.

§11-11B-1. Arbitration authorized.

When the State Tax Commissioner claims that a decedent was domiciled in this state at the time of his death and the taxing authorities of another state or states make a like claim on behalf of their state or states, the State Tax Commissioner may make a written agreement with the other taxing authorities and with the executor or administrator to submit the controversy to the decision of a board consisting of one or any uneven number of arbitrators. The executor or administrator is hereby authorized to make the agreement. The parties to the agreement shall select the arbitrator or arbitrators.

§11-11B-2. Hearings.

The board shall hold hearings at such times and places as it may determine, upon notice to the parties to the agreement, all of whom shall be entitled to be heard, to present evidence and to examine and cross-examine witnesses.

§11-11B-3. Powers of board.

The board shall have power to administer oaths, take testimony, subpoena and require the attendance of witnesses and the production of books, papers and documents, and issue commissions to take testimony. Subpoenas may be signed by any member of the board.

§11-11B-4. Determination of board.

The board shall, by majority vote, determine the domicile of the decedent at the time of his death. This determination shall be final for purposes of imposing and collecting inheritance and death taxes but for no other purpose.

§11-11B-5. Majority vote; exception.

Except as provided in section three in respect to the issuance of subpoenas, all questions arising in the course of the proceeding shall be determined by majority vote of the board.

§11-11B-6. Filing of board's determination.

The State Tax Commissioner, the board, or the executor or administrator shall file the determination of the board as to domicile, the record of the board's proceedings, and the agreement, or a duplicate, made pursuant to section one, with the authority having jurisdiction to assess the inheritance and death taxes in the state determined to be the domicile and shall file copies of all such documents with the authorities that would have been empowered to assess the inheritance and death taxes in each of the other states involved.

§11-11B-7. Additions to tax, penalties and interest.

In any case where it is determined by the board that the decedent died domiciled in this state, additions to tax, interest and penalties, if otherwise imposed by law, for nonpayment of inheritance taxes between the date of the agreement and of filing of the determination of the board as to domicile, shall not exceed eight percent per annum.

§11-11B-8. Compromise permitted.

Nothing contained herein shall prevent at any time a written compromise, if otherwise lawful, by all parties to the agreement made pursuant to section one, fixing the amounts to be accepted by this and any other state involved in full satisfaction of inheritance and death taxes.

§11-11B-9. Compensation and expenses of board.

The compensation and expenses of the members of the board and its employees may be agreed upon among such members and the executor or administrator and if they cannot agree shall be fixed by the probate court of the state determined by the board to be the domicile of the decedent. The amounts so agreed upon or fixed shall be deemed an administration expense and shall be payable by the executor or administrator.

§11-11B-10. Applicability.

This article shall apply only to cases in which each of the states involved has a law identical with or substantially similar to this article.

§11-11B-11. "State" defined.

As used in this article the word "state" means any state, territory or possession of the United States, and the District of Columbia.

§11-11B-12. Interpretation of article.

This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

§11-11B-13. Title.

This article may be cited as the "Uniform Act on Interstate Arbitration of Death Taxes."

§11-11B-14. Estates affected.

This article shall apply to estates of decedents dying before or after its enactment.

§11-12-1. Short title.

This article shall be cited as the "Business Registration Tax."

§11-12-2. Definitions.

(a) General rule. -- Terms used in this article shall have the meaning ascribed to them in section four, article ten of this chapter, unless the context in which the term is used in this article clearly requires a different meaning, or the term is defined in subsection (b) of this section.

(b) Terms defined. -- For purposes of this article, the term:

(1) "Agriculture and farming" shall mean and include the production of food, fiber, or woodland products (but not timbering activity) by means of cultivation or tillage of the soil, or by the conduct of animal, livestock, dairy, apiary, equine or poultry husbandry, or by horticulture, or by any other plant or animal production, and all farm practices related (usual or incidental) thereto, including the storage, packing, shipping and marketing thereof, but not including any manufacturing, milling, processing or selling of such products by person other than the producer thereof.

For the purposes of this article:

(2) "Business activity" shall mean and include all purposeful revenue-generating activity engaged in or caused to be engaged in with the object of gain or economic benefit, either direct or indirect, and all activities of this state and its political subdivisions which involve the sale of tangible personal property or the rendering of service when such service activities compete with or may compete with the activities of another person. "Business activity" shall not include:

(A) Judicial sales directed by law or court order.

(B) Sales for delinquent taxes of real or personal property.

(C) The conduct of charitable bingo by any person licensed under article twenty,chapter forty-seven of this code.

(D) The conduct of a charitable raffle by any person.

(E) The conduct of a horse or dog race meeting by any racing association licensed under article twenty-three, chapter nineteen of this code.

(F) The operation or maintenance of the pari-mutuel system of wagering during the conduct of a licensed horse or dog race meeting.

(G) The sale of any commodity during the conduct of a licensed horse or dog race meeting.

(H) The services of owners, trainers or jockeys which are essential to the effective conduct of a licensed horse or dog race meeting.

(I) Occasional or casual sales of property or services.

(3) "Business registration certificate" shall mean a certificate issued by the Tax Commissioner authorizing a person to conduct business within the State of West Virginia; and when referred to in this article as a certificate of registration or a business franchise registration certificate, it shall mean a business registration certificate.

(4) "Occasional sale" or "casual sale" shall mean a sale of tangible personal property not held or used by a seller in the course of an activity for which a business registration certificate is required, including the sale or exchange of all or substantially all the assets of any business and the reorganization or liquidation of any business: Provided, That such sale or exchange is not one of a series of sales or exchanges sufficient in number, scope and character to constitute a business activity requiring the holding of a business registration certificate.

(5) "Person" or "company" shall mean and include any individual, firm, copartnership, joint venture, association, corporation, estate, trust, business trust, receiver, syndicate, club, society, or other group or combination acting as a unit, or body politic or political subdivision (whether public or private, or quasi-public) and in the plural as well as the singular and when used in connection with the penalties imposed by section nine of this article, shall mean and include the officers, directors, trustees, or members of any firm, copartnership, joint venture, association, corporation, trust, business trust, syndicate or any other groups or combinations acting as a unit.

(6) "Registration year" shall mean a period of twelve calendar months beginning July 1, and ending the thirtieth day of the following June.

(7) "Registrant" shall mean any person who has been issued a business registration certificate under this article for the current registration year.

(8) "Tax commissioner" shall mean the Tax Commissioner or his agent.

§11-12-3. Business registration certificate required; tax levied; exemption from registration; exemption from tax; penalty.

(a) Registration required. -- No person shall, without a business registration certificate, engage in or prosecute, in the State of West Virginia, any business activity without first obtaining a business registration certificate from the Tax Commissioner of the State of West Virginia. Additionally, before beginning business in this state, such person:

(1) If a transient vendor, shall comply with the provisions of sections twenty through twenty-five of this article.

(2) If a collection agency, shall comply with the provisions of article sixteen, chapter forty-seven of this code.

(3) If an employment agency, shall comply with the provisions of article two, chapter twenty-one of this code.

(4) If selling drug paraphernalia, as defined in section three, article nineteen, chapter forty-seven of this code, shall comply with the provisions of article nineteen, chapter forty-seven of this code.

Persons engaging in or prosecuting other business activities in this state may also be subject to other provisions of this code which they must satisfy before commencing or while engaging in a business activity in this state.

(b) Tax levied. -- The business registration tax hereby levied shall be $15 for each annual business registration certificate: Provided, That for registration periods beginning on or after July 1, 1999, the business registration tax shall be $30, except as otherwise provided in this article: Provided, however, That after June 30, 2010, the business registration tax shall be $30.00 for each business registration certificate, including business registration certificates granted upon application after cessation of a business, or after suspension, revocation, cancellation or lapse of a prior business registration certificate.

(1) A separate business registration certificate is required for each fixed business location from which property or services are offered for sale or lease to the public as a class, or to a limited portion of the public; or at which customer accounts may be opened, closed or serviced.

(2) A separate business registration certificate is not required for each coin-operated machine. A separate certificate is required for each location from which making coin-operated machines available to the public is itself a business activity.

(3) A business that sells tangible personal property or services from or out of one or more vehicles needs a separate business registration certificate for each fixed location in this state from or out of which business is conducted. A copy of its business registration certificate shall be carried in each vehicle and publicly displayed while business is conducted from or out of the vehicle.

(4) A business registration certificate is required by subsection (a) of this section for every person engaging in purposeful revenue generating activity in this state. If that activity is one for which an employment agency license or a collection agency license or a license to sell drug paraphernalia is required and no other business activity is conducted by that person at each business location for which the employment agency license or collection agency license or license to sell drug paraphernalia is issued, then only that license is required for each such activity conducted by the licensee at each business location. However, if, in addition to the activity for which each license is issued, some other business activity is conducted by the licensee at such business location, a separate business registration certificate is required to conduct the nonlicensed activity.

(c) Exemption from registration. -- Any person engaging in or prosecuting business activity in this state:

(1) Who is not required by law to collect or withhold a tax administered under article ten of this chapter; and

(2) Who does not claim exemption from payment of taxes imposed by articles fifteen and fifteen-a of this chapter, shall be exempt from both registration and payment of the tax imposed by this article, if such person had gross income from business activity of $4,000 or less during that person's tax year for state income tax purposes immediately preceding the registration period for which a registration certificate is otherwise required by this article.

(d) Exemptions from payment of tax. -- Any person engaging in or prosecuting any business activity in this state who is required by law to collect or withhold any tax administered under article ten of this chapter; or who claims exemption from payment of the taxes imposed by articles fifteen and fifteen-a of this chapter, shall be required to obtain a business registration certificate, as herein before provided, but shall be exempt from payment of the tax levied by subsection (b) of this section, if such person is:

(1) A person who had gross income from business activity of $4,000 or less during that person's tax year for state income tax purposes immediately preceding the registration period for which a registration certificate is required under this article.

(2) An organization which qualifies, or would qualify, for exemption from federal income taxes under section 501 of the Internal Revenue Code of 1986, as amended.

(3) This state, or a political subdivision thereof, selling tangible personal property, admissions or services, when those activities compete with or may compete with the activities of another person.

(4) The United States, or an agency or instrumentality thereof, which is exempt from taxation by the states.

(5) A person engaged in the business of agriculture and farming: Provided, That no producer or grower selling products of the farm, garden or dairy and not included within the definition of business under subsection (a), section two of this article shall be required to obtain a business registration certificate or pay the business registration tax.

(6) A foreign retailer who is not a "retailer engaging in business in this state" as defined in section one, article fifteen-a of this chapter, who enters into an agreement with the Tax Commissioner to voluntarily collect and remit use tax on sales to West Virginia customers.

(e) Money penalty. -- Any person required to obtain a business registration certificate under this section, who is exempt from payment of the tax, as provided in subsection (d) of this section, who does not obtain a registration certificate shall, in lieu of paying the penalty imposed by section nine of this article, pay a penalty of $15 for each business location for which a certificate is needed: Provided, That application for business registration is made and the applicable money penalty tendered to the Tax Commissioner within fifteen days after such person receives written notice from the Tax Commissioner that such person is required to obtain a business registration certificate.

§11-12-3a.

Repealed. Acts, 1970 Reg. Sess., Ch. 73.

§11-12-4. Application for business registration certificate; issuance of business certificate; effect of business registration certificate; municipal license taxes.

(a) General rule. -- Except as otherwise provided in this article, a person shall register with the Tax Commissioner prior to engaging in or prosecuting any business activity in this state. The application for business registration shall be in such form and contain such information as the Tax Commissioner may require; and the applicant shall set forth truthfully and accurately the information required by the Tax Commissioner. Upon receipt of a complete and properly executed application form, accompanied by payment of (or claim of exemption from) the tax levied by section three for each business registration certificate, the Tax Commissioner shall, if he determines to his satisfaction that all of the conditions precedent to the granting of such certificate have been fulfilled by the applicant, issue such business registration certificate or certificates.

(b) Certificate not to validate illegal activity. -- Nothing in this article, including, but not limited to, any payment of the tax imposed or issuance of any certificate of registration under the provisions hereof, shall be deemed to legalize any act, business activity or transaction which otherwise may be illegal or conducted in violation of law; or to exempt any person from any civil or criminal penalty prescribed for such illegal act or violation.

(c) Certificate not to be construed as consent to general tax jurisdiction of this state. -- The filing of an application for business registration certificate (or for renewal thereof) and payment of the tax imposed by section three shall not be construed by the Tax Commissioner or the courts of this state as consent, submission or admission by the registrant to the general taxing jurisdiction of this state, and liability for such other taxes imposed by this state shall depend upon the relevant facts in each case and the applicable law.

(d) Power of municipalities to impose license taxes preserved. -- Notwithstanding the repeal, as of July 1, 1970, of certain license taxes then imposed by this article and article thirteen-a of this chapter, the power of a municipality to impose similar license taxes, by ordinance adopted pursuant to the authority of its charter or this code, was and is preserved: Provided, That the municipal license taxes imposed on any business, activity, trade or employment that was previously subject to a state license tax under this article or article thirteen-a of this chapter, cannot exceed the state license tax in effect on such business, activity, trade or employment of January 1, 1970; and municipalities shall have the power to impose similar penalties as those then provided in this article and article thirteen-a of this chapter for noncompliance with such state license taxes.

§11-12-4a. Sellers of cigarettes, tobacco products or cigarette wrappers required to be licensed; business registration certificate is license; criminal penalties.

(a) For registration years beginning on or after July 1, 2000, each person who sells cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail shall apply for and receive a license to sell cigarettes or other tobacco products or cigarette wrappers. The cigarette license application shall be a part of the business registration certificate application or the renewal application for a business registration certificate.

(b) The license shall be printed on the business registration certificate or certificates issued under the provisions of subsection (a), section four of this article.

(c) Any person or company who sells any cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail after July 1, 2001, without obtaining the license specified in subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $250.

§11-12-5. Time for which registration certificate granted; power of Tax Commissioner to suspend, revoke or cancel certificate; certificate to be permanent until cessation of business for which certificates are granted or revocation, suspension or cancellation by the Tax Commissioner; penalty for involuntary loss of license due to failure to pay required fees and taxes relating to business.

(a) Registration period. -- All business registration certificates issued under the provisions of section four of this article are for the period of one year beginning July 1 and ending June 30 of the following year: Provided, That beginning on or after July 1, 1999, all business registration certificates issued under the provisions of section four of this article shall be issued for two fiscal years of this state, subject to the following transition rule. If the first year for which a business was issued a business registration certificate under this article began on July 1 of an even-numbered calendar year, then the Tax Commissioner may issue a renewal certificate to that business for the period beginning July 1, 1999, and ending June 30, 2000, upon receipt of $15 for each such one-year certificate. Notwithstanding any other provisions of this code to the contrary, any certificate of registration granted on or after July 1, 2010, shall not be subject to the foregoing requirement that it be renewed, but shall be permanent until cessation of the business for which the certificate of registration was granted or until it is suspended, revoked or canceled by the Tax Commissioner. Notwithstanding any provision of this code to the contrary, on or after July 1, 2010, reference to renewal of the business registration certificate shall refer to the issuance of a new business registration certificate pursuant to expiration, cancellation or revocation of a prior business registration certificate or to reinstatement of a business registration certificate or to reinstatement of a business certificate previously suspended by the Tax Commissioner. Subject to the exemptions, exceptions and requirements other than the $4,000 or less gross income exemption, set forth in section three of this article, on or after July 1, 2010, the business registration certificate shall be issued upon payment of a tax of $30 to the Tax Commissioner for new issuances of the business registration certificate or for issuances of the business registration certificate pursuant to expiration, cancellation or revocation of a prior business registration certificate or for reinstatement of a business registration certificate previously suspended by the Tax Commissioner, along with any applicable delinquent fees, interest, penalties and additions to tax. Subject to the exemptions, exceptions and requirements set forth in section three of this article, the $30 tax shall be paid each and every time there is an issuance, reissuance or reinstatement of a business registration certificate, along with any applicable delinquent fees, interest, penalties and additions to tax: Provided, however That the $4,000 or less gross income exemption set forth in subdivision (1), subsection (d), section three of this article does not apply.

(b) Revocation, cancellation or suspension of certificate. -–

(1) The Tax Commissioner may cancel, revoke or suspend a business registration certificate at any time during a registration period if:

(A) The registrant filed an application for a business registration certificate, or an application for renewal thereof, that was false or fraudulent.

(B) The registrant willfully refused or neglected to file a tax return or to report information required by the Tax Commissioner for any tax imposed by or pursuant to this chapter.

(C) The registrant willfully refused or neglected to pay any tax, additions to tax, penalties or interest, or any part thereof, when they became due and payable under this chapter, determined with regard to any authorized extension of time for payment.

(D) The registrant neglected to pay over to the Tax Commissioner on or before its due date, determined with regard to any authorized extension of time for payment, any tax imposed by this chapter which the registrant collects from any person and holds in trust for this state.

(E) The registrant abused the privilege afforded to it by article fifteen or fifteen-a of this chapter to be exempt from payment of the taxes imposed by such articles on some or all of the registrant's purchases for use in business upon issuing to the vendor a properly executed exemption certificate, by failing to timely pay use tax on taxable purchase for use in business or by failing to either pay the tax or give a properly executed exemption certificate to the vendor.

(F) The registrant has failed to pay in full delinquent personal property taxes owing for the calendar year.

(2) On or after July 1, 2010, a prospective registrant or a former registrant for which a business registration certificate has been suspended, canceled or revoked pursuant to the provisions of this article may apply for a new business registration certificate or for reinstatement of a suspended business registration certificate upon payment of all outstanding delinquent fees, taxes, interest, additions to tax and penalties, in addition to payment to the Tax Commissioner of a penalty in the amount of $100. The Tax Commissioner may issue a new business registration certificate or reinstate a suspended business registration certificate if the prospective or former registrant has provided security acceptable to and authorized by the Tax Commissioner, payable to the Tax Commissioner, sufficient to secure all delinquent fees, taxes, interest, additions to tax and penalties owed by the prospective registrant. The Tax Commissioner may issue a new business registration certificate or reinstate a suspended business registration certificate if the prospective or former registrant has entered into a payment plan approved by the Tax Commissioner by which liability for all delinquent fees, taxes, interest, additions to tax and penalties will be paid in due course and without significant delay. Failure of any registrant to comply with a payment plan pursuant to this provision shall be grounds for immediate suspension or revocation of the registrant's business registration certificate.

(3) On and after July 1, 2010, a prospective registrant or a former registrant for which a business registration certificate has been suspended, canceled or revoked pursuant to the provisions of any article of this code other than this article may apply for a new business registration certificate or for reinstatement of a suspended business registration certificate, only if the prospective or former registrant has complied with all applicable statutory and regulatory requirements for renewal, issuance or reinstatement of the business registration certificate and upon payment to the Tax Commissioner of a penalty in the amount of $100.

(4) Except pursuant to exceptions specified in this code, before canceling, revoking or suspending any business registration certificate, the Tax Commissioner shall give written notice of his or her intent to suspend, revoke or cancel the business registration certificate of the taxpayer, the reason for the suspension, revocation or cancellation and the effective date of the cancellation, revocation or suspension. Written notice shall be served on the taxpayer in accordance with section five-e, article ten of this chapter not less than twenty days prior to the effective date of the cancellation, revocation or suspension. Acceptance of service of notice shall be deemed to have occurred if completed as set forth in section five-e, article ten of this chapter. The taxpayer may appeal cancellation, revocation or suspension of its business registration certificate by filing a petition for appeal with the Office of Tax Appeals within twenty days immediately succeeding receipt of the service of notice to suspend, revoke or cancel the business registration certificate. The filing of a petition for appeal does not stay the effective date of the suspension, revocation or cancellation. A stay may be granted only after a hearing is held on a motion to stay filed by the registrant upon finding that state revenues will not be jeopardized by the granting of the stay. The Tax Commissioner may, in his or her discretion and upon such terms as he or she may specify, agree to stay the effective date of the cancellation, revocation or suspension until another date certain.

(5) On or before July 1, 2005, the Tax Commissioner shall propose for promulgation legislative rules establishing ancillary procedures for the Tax Commissioner's suspension of business registration certificates for failure to pay delinquent personal property taxes pursuant to paragraph (F), subdivision (1) of this section. The rules shall at a minimum establish any additional requirements for the provision of notice deemed necessary by the Tax Commissioner to meet requirements of law; establish protocols for the communication and verification of information exchanged between the Tax Commissioner, sheriffs and others; and establish fees to be assessed against delinquent taxpayers that shall be deposited into a special fund which is hereby created and expended for general tax administration by the Tax Division of the Department of Revenue and for operation of the Tax Division. Upon authorization of the Legislature, the rules shall have the same force and effect as if set forth herein. No provision of this subdivision may be construed to restrict in any manner the authority of the Tax Commissioner to suspend such certificates for failure to pay delinquent personal property taxes under paragraph (C) or (F), subdivision (1) of this section or under any other provision of this code prior to the authorization of the rules.

(c) Revocation, cancellation or suspension due to delinquent personal property tax. -- The Tax Commissioner may revoke, cancel or suspend a business registration certificate when informed in writing, signed by the county sheriff, that personal property owned by a registrant and used in conjunction with the business activity of the a registrant is subject to delinquent property taxes. The Tax Commissioner shall forthwith notify the registrant that the commissioner will revoke, cancel or suspend the registrant's business registration certificate unless information is provided evidencing that the taxes due are either exonerated or paid.

(d) Refusal to issue, revocation, suspension and refusal to renew business registration certificate of alter ego, nominee or instrumentality of a business that has previously been the subject of a lawful refusal to issue, revocation, suspension or refuse to renew. -–

(1) The Tax Commissioner may refuse to issue a business registration certificate, or may revoke a business registration certificate or may suspend a business registration certificate or may refuse to renew a business registration certificate for any business determined by the Tax Commissioner to be an alter ego, nominee or instrumentality of a business that has previously been the subject of a lawful refusal to issue a business registration certificate or of a lawful revocation, suspension or refusal to renew a business registration certificate pursuant to this section, and for which the business registration certificate has not been lawfully reinstated or reissued.

(2) For purposes of this section, a business is presumed to be an alter ego, nominee or instrumentality of another business or other businesses if:

(A) More than twenty percent of the real assets or more than twenty percent of the operating assets or more than twenty percent of the tangible personal property of one business are or have been transferred to the other business or businesses, or are or have been used in the operations of the other business or businesses, or more than twenty percent of the real assets or more than twenty percent of the operating assets or more than twenty percent of the tangible personal property of one business are or have been used to collateralize or secure debts or obligations of the other business or businesses;

(B) Ownership of the businesses is so configured that the attribution rules of either Internal Revenue Code section 267 or Internal Revenue Code section 318 would apply to cause ownership of the businesses to be attributed to the same person or entity; or

(C) Substantive control of the businesses is held or retained by the same person, entity or individual, directly or indirectly, or through attribution under paragraph (B) of this subdivision.

§11-12-5a. Prohibition on certificate being obtained by person connected to illegal activities involving scrap metal.

(a) For the purposes of this section, the term "scrap metal" shall have the same meaning ascribed to it in section forty-nine, article three, chapter sixty-one of this code.

(b) No person that has had a previous business registration certificate cancelled pursuant to subsection (j), section forty-nine, article three, chapter sixty-one of this code may apply for a subsequent business registration certificate that would permit them to own, conduct, or operate any business involving the purchase of scrap metal or the operation or any salvage yard or recycling facility.

(c) No person may apply for a business registration certificate that would permit them to own, conduct, or operate any business involving the purchase of scrap metal or the operation or any salvage yard or recycling facility in which a person convicted in the previous two years of a third or subsequent offense under section forty-nine, article three, chapter sixty-one of this code will hold a financial interest, be employed, or otherwise be involved in the day-to-day operations of said business.

(d) Upon applying for a business registration certificate, pursuant to section four of this article, that would permit the applicant to own, conduct, or operate any business involving the purchase of scrap metal or the operation of any salvage yard or recycling facility, the Tax Commissioner shall require as part of the application a statement by the applicant that to the best of his or her knowledge and belief no person that has been convicted in the previous two years of a third or subsequent offense under section forty-nine, article three, chapter sixty-one of this code will hold a financial interest, be employed, or otherwise be involved in the day-to-day operations of said business.

§11-12-6. Business certificate a personal privilege not assignable; change of name, location, ownership, etc.

Every business certificate issued under the provisions of section four of this article shall confer a personal privilege only to transact the business, activity or trade, which may be the subject of the business certificate and shall not be exercised except by the persons holding the same and shall not be assignable to any other person.

Changes in the name of the person or change of location, or address, or changes in ownership of the business or changes in real parties of interest shall be considered a cessation of the business and a new certificate shall be required. Changes of partners or members of firms or officers of a corporation shall not require a new certificate to be issued.

§11-12-6a.

Repealed.

Acts, 1970 Reg. Sess., Ch. 73.

§11-12-6b.

Repealed.

Acts, 1967 Reg. Sess., Ch. 185.

§11-12-7. Display of registration certificate; injunction; public information, reciprocal exchange of information.

Any person to whom a certificate of registration has been issued under the provisions of section four of this article shall keep the certificate posted in a conspicuous position in the place where the privilege of the business is exercised. The certificate of registration shall be produced for inspection whenever required by the Tax Commissioner or by any law-enforcement officers of this state, county or municipality in which the privileges to conduct business are exercised.

No injunction shall issue from any court in the state enjoining the collection of any business registration certificate tax required in this section; and any person claiming that any business certificate is not due, for any reason, shall pay the tax under protest and petition the Tax Commissioner for a refund in accordance with the provisions of section fourteen, article ten of this chapter.

If any person engaging in or prosecuting any business, or trade, contrary to any other provisions of this article, whether without obtaining a business certificate therefor before commencing the same, or by continuing the same after the termination of the effective period of the business certificate, the circuit court, or the judge thereof in vacation, of the county in which the violation occurred shall, upon proper application in the name of the state, and after ten days' written notice thereof to such person, grant an injunction prohibiting that person from continuing the business, activity or trade until he or she has fully complied with the provisions of this article. The remedy provided in this section is in addition to all other penalties and remedies provided by law.

The Tax Commissioner shall make available, when requested, information as to whether a person is registered to do business in the State of West Virginia.

The Tax Commissioner shall deliver to the commissioner of the Bureau of Employment Programs and the executive director of the workers' compensation commission the information contained in the business franchise registration certificate when this information is used to implement and administer a single point of registration program for persons engaging in any business activity in the State of West Virginia. The single point of registration program shall provide that, once an individual has received a business franchise registration certificate, the Tax Commissioner shall notify the commissioner of the Bureau of Employment Programs and the executive director of the workers' compensation commission of the names, addresses and other identifying information of that individual or entity. Upon receiving this information, the commissioner of the Bureau of Employment Programs and the executive director of the workers' compensation commission shall contact all businesses receiving a business franchise registration certificate and provide all necessary forms and paperwork to register a business within the bureau and commission pursuant to subsection (b), section six-b, article two, chapter twenty-one-a of this code and subsection (c), section two, article two, chapter twenty-three of this code.

Notwithstanding the provisions of section five, article ten of this chapter, the Tax Commissioner may enter into a reciprocal agreement with the Governor's office of community and industrial development and other departments or agencies of this state for the exchange of information contained in the application for a business franchise registration certificate filed under section four of this article when the purpose for the exchange is to implement and administer a single-point of registration program for persons engaging in business in this state. The other departments and agencies may enter into a reciprocal exchange agreement for this purpose notwithstanding any provision of this code to the contrary.

§11-12-8.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-12-9. Penalties.

In addition to the provisions of article ten of this chapter, any person engaging in or prosecuting any business contrary to the provisions of this article, whether without obtaining a business registration certificate therefor before commencing the same, or by continuing the same after the termination of the effective period of any such certificate may, in addition to paying the business registration tax, additions to tax, penalties and interest, be liable for a penalty of $50 for each month or fraction thereof during which he has been in default of the business registration tax. It shall be the duty of the Tax Commissioner to collect the full amount of the business registration tax, additions to tax, interest, and all penalties imposed: Provided, That in no event may the total penalty for failure to renew a business registration certificate exceed $50 per registration certificate.

§11-12-10. Collection of back taxes; notice of discontinuance of business.

Any person engaging in or prosecuting any business contrary to provisions of this article, whether without obtaining a certificate therefor before commencing the same, or by continuing the same after the termination of the effective period of such certificate, shall, in addition to all other penalties provided by law, be liable for the payment of all back business franchise registration taxes and the additions to tax, penalties and interest due thereon and the penalties imposed by this article for a period not exceeding three years.

Whenever any person ceases to engage in business within this state by reason of the discontinuance, sale or transfer or by any other means of disposition of the business, it shall be his duty to notify the Tax Commissioner in writing of the discontinuance, sale or transfer or other disposition of the business, the date thereof and the name and address of the seller or transferor and purchaser or transferee thereof.

Unless the notice shall have been given to the Tax Commissioner as above provided, such seller or transferor and purchaser or transferee shall be jointly liable to the State of West Virginia for the amount of all taxes, additions to tax, penalties and interest due and unpaid under the provisions of this article or article ten of this chapter.

§11-12-11.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-12-12.

Repealed.

Acts, 1984 Reg. Sess., Ch. 170.

§11-12-13.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-12-14. Hearing; appeal.

Any person adversely affected by refusal of the Tax Commissioner, or his representative, to issue a business franchise registration certificate or to renew this certificate may request a hearing before the Tax Commissioner, or his examiner, if such request is made within sixty days from receipt of written notice of the refusal.

The hearing provided for in this section and section five of this article shall be held as provided in section nine, article ten of this chapter and the taxpayer may take an appeal as provided in section ten of said article ten.

§11-12-15. Enforcement.

Any employee of the State Tax Department so designated by the Tax Commissioner shall have all the lawful powers delegated to members of the department of public safety to enforce the provisions of this article in any county or municipality of this state, and such employee shall, before entering upon the discharge of his duties, execute a bond with security in the sum of $3,500, payable to the State of West Virginia, conditioned for the faithful performance of his duties as such, and such bond shall be approved as to form by the Attorney General, and the same shall be filed with the Secretary of State and preserved in his office.

§11-12-16. Disposition of money collected.

All money collected under the provisions of sections three and nine of this article shall be paid into the State Treasury, monthly, by the State Tax Commissioner, and shall be added to and shall constitute a part of the General Fund for the elementary schools.

§11-12-17. Severability of provisions.

The provisions of this article are severable and if any shall be held unconstitutional, the decision of the court shall not affect or impair any of the remaining provisions thereof. It is hereby declared as legislative intent that this article would have been adopted if such unconstitutional provision had not been included therein.

§11-12-18. General procedure and administration.

Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter shall apply to the business franchise registration tax imposed by this article twelve, sections one through seventeen, with like effect as if said act were applicable only to such business franchise registration tax imposed by this article twelve and were set forth with respect thereto in extenso in this article twelve.

§11-12-19. Contractors.

(a) General. -- Every person who engages in this state in any contracting business or activity shall have a copy of his business registration certificate available at every construction site in this state until his work at such site is completed.

(b) Definitions. -- For purposes of this section:

(1) "Contracting business or activity" means and includes the furnishing of work, or both work and materials for the erecting, building, constructing, altering, repairing, removing or demolishing of any building or other structure, or other improvement appurtenant to any such building or other structure, or for altering, improving or developing of property, under and by virtue of a contract with the owner for an agreed lump sum or upon any other basis of settlement and payment agreed to by the parties, whether such contract be an oral agreement or in writing. The term "contracting business or activity" shall also include the furnishing of work or both work and materials or equipment under and by virtue of a subcontract with a general contractor for an agreed contract price, or by day, or by piece, or by other basis of payment agreed to by parties, whether such contract be an oral agreement or in writing.

(2) "Contractor" means every person, including a subcontractor, who agrees by a written or oral contract to engage in contracting activity.

(3) "Construction site" means the area in which the contractor is working or beginning to work when engaging in contracting activity.

(c) Penalty for failure to have available. -- In addition to other penalties provided by law, any contractor who fails to have available at the construction site during the time he is furnishing contracting activity at such site, his business registration certificate or a copy thereof, shall not be entitled to enforce the mechanics' lien created by section one or two, article two, chapter thirty-eight of this code, for contracting activity provided by him at such construction site.

§11-12-20. Registration of transient vendors.

(a) Prior to conducting business or otherwise commencing operations within this state, a transient vendor shall obtain a business registration certificate from the Tax Commissioner and pay the tax imposed by this article.

(b) Upon receipt of the application for business registration and the posting of the bond required by section twenty-one of this article, the Tax Commissioner shall issue to the transient vendor a business registration certificate, which shall be valid for the current registration period, if the application is complete and the transient vendor is not delinquent in the payment of any tax imposed by this chapter. Upon renewal of the registration, the Tax Commissioner shall issue a new certificate, valid for the next ensuing registration period, provided he or she is satisfied that the transient vendor has complied with the provisions of this article and is not delinquent in the payment of any tax imposed by this article.

(c) The transient vendor shall keep the business registration certificate in his or her possession at all times when conducting business within this state. He or she shall publicly display the certificate whenever conducting business in this state and shall exhibit the certificate upon the request of an authorized employee of the tax commissioner or any law-enforcement officer.

(d) The business registration certificate issued by the Tax Commissioner shall constitute notice that the transient vendor named therein has registered with the Tax Commissioner, and shall provide notice to the transient vendor that:

(1) Before entering this state to conduct business the transient vendor must notify the Tax Commissioner, in writing, of the location or locations in this state where he or she intends to conduct business, and the date or dates on which he or she intends to conduct such business.

(2) Failure to notify, or the giving of false information to the Tax Commissioner is grounds for suspension or revocation of the transient vendor's business registration certificate.

(3) Conducting business in this state without having a valid business registration certificate after such certificate has been suspended or revoked, may result in criminal prosecution or the imposition of fines, or other penalties, or both for violation of this article.

(e) Definitions. -- For purposes of this section:

(1) "Transient vendor" means any person who:

(A) Brings into this state, by automobile, truck or other means of transportation, or purchases in this state, tangible personal property the sale or use of which is subject to one or more taxes administered by the Tax Commissioner under article ten of this chapter;

(B) Offers or intends to offer such tangible personal property for sale to consumers in this state; and

(C) Does not maintain an established office, distribution house, sales house, warehouse, service enterprise, residence from which business is conducted, or other place of business within this state.

(2) The term "transient vendor" shall not include any person who:

(A) Is a commercial traveler or selling agent who sells only to persons who purchase tangible personal property for purposes of resale to others;

(B) Only sells goods, wares or merchandise by sample catalog or brochure for future delivery;

(C) Only sells or offers for sale crafts or other handmade items that were made by the seller; or

(D) Only sells agricultural and farming products, except nursery products and foliage plants.

§11-12-21. Bond of transient vendors.

(a) With its application for a business registration certificate, a transient vendor shall post a bond with the Tax Commissioner in the amount of $500 as surety for compliance with the provisions of this article. After a period of demonstrated compliance with these provisions, the Tax Commissioner may reduce the amount of the bond required of a transient vendor or may eliminate the bond entirely.

(b) A transient vendor may file with the Tax Commissioner a request for voluntary suspension of its business registration certificate. If the Tax Commissioner is satisfied that the transient vendor has complied with the provisions of this article and has relinquished to the Tax Commissioner possession of the transient vendor's business registration certificate, the Tax Commissioner shall return to the transient vendor the bond it posted.

§11-12-22. Notification to department.

Prior to entering this state to conduct business, a transient vendor shall notify the Tax Commissioner, in writing, of the location or locations where he intends to conduct business and the date or dates when he intends to conduct such business.

§11-12-23. Revocation of certificate of transient merchant.

The Tax Commissioner may suspend or revoke a business registration certificate issued to a transient vendor if the transient vendor:

(1) Fails to notify the Tax Commissioner as required by section twenty-two of this article.

(2) Provides the Tax Commissioner with false information regarding the conduct of his business by it within this state.

(3) Fails to collect and timely pay over consumers sales and service tax or use tax with regard to all sales of tangible personal property and services sold by him that are subject to the taxes imposed by article fifteen or fifteen-a of this section.

(4) Fails to timely file with the Tax Commissioner any tax return required to be filed by law or regulation for any tax administered by article ten of this chapter, or fails to timely pay the amount of tax shown thereon to be due.

(5) Fails to comply with the provisions of section eight, article five of this chapter, providing for assessment and payment of ad valorem property taxes on any goods or merchandise of a transient vendor to be offered or furnished for sale in this state.

§11-12-24. Seizure of property of transient vendor.

(a) If a transient vendor conducting business within this state fails to exhibit a valid business registration certificate upon demand by an authorized employee of the Tax Commissioner, such employee or any peace officer of this state at the request of such employee shall have authority to seize, without warrant, the tangible personal property and automobile, truck or other means of transportation used to transport or carry that property. All property seized shall be deemed contraband and shall be subject to immediate forfeiture proceedings instituted by the Tax Commissioner under procedures adopted by regulation, except as otherwise provided by this section.

(b) Property seized under subsection (a) shall be released upon:

(1) Presentation of a valid business registration certificate to an authorized employee of the Tax Commissioner; or

(2) Registration by the transient vendor with the Tax Commissioner and the posting of a bond in the amount of $500, either immediately or within fifteen days after the property is seized.

§11-12-25. Severability.

If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this article, but shall be confined in its operation to the provision thereon directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other person or circumstances shall not be affected thereby.

§11-12-26. Interpretation of preceding sections.

None of the provisions of the preceding sections in this article shall affect any of the sections of this article dealing with the corporation land holding tax or the corporation license tax; and none of the sections of this article dealing with such taxes shall affect any of the sections of this article dealing with the business registration tax.

§11-12-27.

Repealed.

Acts, 1970 Reg. Sess., Ch. 73.

§11-12-28.

Repealed.

Acts, 1970 Reg. Sess., Ch. 73.

§11-12-29.

Repealed.

Acts, 1970 Reg. Sess., Ch. 73.

§11-12-30.

Repealed.

Acts, 1970 Reg. Sess., Ch. 73.

§11-12-31.

Repealed.

Acts, 1970 Reg. Sess., Ch. 73.

§11-12-32.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-33.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-34.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-35.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-36.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-37.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-38.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-39.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-40.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-41.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-42.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-43.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-44.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-45.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-46.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-47.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-48.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-49.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-50.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-51.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-52.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-53.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-54.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-55.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-56.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-57.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-58.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-59.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-60.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-61.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-62.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-63.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-64.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-65.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-66.

Repealed.

Acts, 1957 Reg. Sess., Ch. 160.

§11-12-67.

Reserved for future use.

§11-12-68.

Reserved for future use.

§11-12-69.

Reserved for future use.

§11-12-70.

Reserved for future use.

§11-12-71.

Reserved for future use.

§11-12-72.

Reserved for future use.

§11-12-73.

Reserved for future use.

§11-12-74.

Reserved for future use.

§11-12-75. Tax on corporations holding more than ten thousand acres of land.

Every corporation, including railroad and other corporations, holding more than ten thousand acres of land in this state shall pay to the state a tax of 5¢ per acre for the privilege of acquiring and holding of land so acquired and held by it in addition to ten thousand acres. Such corporations shall, under the hand of the president and seal of the corporation, and attested by the secretary, apply to the Secretary of State for a certificate authorizing the holding of the number of acres stated in such application, and pay the tax thereon; and it shall be the duty of the Secretary of State to issue to such corporation a certificate stating the amount of tax paid and the number of acres on which paid, and the number of acres the corporation is thereby entitled to hold. Hereafter a domestic corporation shall state in its agreement for incorporation and a foreign corporation shall state in its application for authority to hold property and transact business in this state, the number of acres it desires to hold, and pay the taxes thereon to the Secretary of State before the certificate of incorporation or of authority is issued. If any corporation desires to increase the number of acres it may hold, it shall make application therefor to the Secretary of State. Such application shall be signed by the president of the corporation, sealed with its corporate seal, and attested by the secretary, and shall state the number of acres it then holds and the number of acres it desires to hold. The Secretary of State shall collect the proper amount of tax and shall issue to the corporation a certificate reciting the number of acres the corporation may hold and the amount of tax paid to him If any corporation shall fail to comply with the provisions of this section it shall be liable to a fine of not less than twenty-five nor more than $500, and be liable to pay such tax due to the state with a penalty of ten percent on the total amount due, and be liable to all the provisions of sections eighty-six and eighty-seven of this article so far as they are applicable. All moneys received by the Secretary of State under the provisions of this section shall be reported to the Auditor, and paid into the State Treasury in the manner prescribed for the payment of other moneys received by him No corporation shall be required to pay the said tax of 5¢ per acre for license to hold any land in this state in excess of ten thousand acres for which such corporation shall have already paid a license tax at the time this law takes effect.

A corporation which has paid said tax may assign, without further payment by the assignee of the tax required hereunder, its license or authority to hold lands in excess of ten thousand acres provided the assignee shall be a corporation organized solely to conduct the same general business and with the same stock ownership as the original licensee and such assignment be accompanied by a conveyance and transfer to such assignee corporation of all the lands and other assets of the original licensee. Such assignment shall be filed with the Secretary of State who, upon being satisfied that the assignee corporation has conformed to the foregoing requirements, shall issue a certificate authorizing such assignee corporation to hold the same number of acres the original licensee was authorized to hold.

§11-12-76.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-77.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-78.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-79.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-80.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-80a.

Repealed.

Acts, 1963 Reg. Sess., Ch. 180.

§11-12-81.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-82.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-83.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-84.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-85. Investigation of corporations' delinquencies.

The Tax Commissioner, with the approval of the Governor, may appoint agents to investigate all violations of the provisions of this article concerning landholding taxes on corporations, and also for the purpose of collecting such taxes from all corporations which have not paid the same, whether due from domestic or foreign corporations. The compensation of all such agents shall be fixed by the Tax Commissioner.

§11-12-86. Sparkler and novelty registration fee.

The Tax Commissioner shall establish a "Sparkler and Novelty Registration Fee" which shall be charged all businesses licensed to do business in the State of West Virginia desiring to sell sparklers and novelties authorized for sale in section twenty-three, article three, chapter twenty-nine of this code. This fee shall run concurrent with the business registration certificate set forth in section five of this article. This fee shall not be prorated. Each business shall pay $15 for each registration and shall be issued a sticker or card by the Tax Commissioner to be posted in a conspicuous position at the location of the business which has paid the registration fee. This fee shall be collected for each separate location where sparklers and novelties are sold. The Tax Commissioner may, in his or her discretion, require a separate certificate which shall be posted as set forth herein, or provide that the evidence of compliance with this section may be by a stamp or language added to the business registration certificate or by embossing or writing imprinted on the business registration certificate.

§11-12-87.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-88.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-89.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-90.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12-91.

Repealed.

Acts, 1992 Reg. Sess., Ch. 205.

§11-12A-1.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-2.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-3.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-4.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-5.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-6.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-7.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-8.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-9.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-10.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-11.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-12.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-13.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-14.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-15.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-16.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-17.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-18.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-19.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-20.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-21.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-22.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-23.

Repealed.

Acts 1978, Ch. 95; 1984, Ch. 170; 1985, Ch. 162.

§11-12A-24. Repeal of article and date thereof; short taxable years for taxpayers on calendar or fiscal year and cash or accrual accounting methods.

(a) Each and every provision of article twelve-a of this chapter is repealed for all tax periods beginning on and after July 1, 1987: Provided, That tax liabilities, if any, arising for taxable years or portions thereof ending prior to July 1, 1987, shall be determined, administered, assessed and collected as if the taxes imposed by article twelve-a of this chapter had not been repealed; and the rights and duties of the taxpayer and the State of West Virginia shall be fully and completely preserved.

(b) Persons who are calendar year taxpayers under this article shall file their annual return for calendar year 1987, on or before September 15, 1987, and remit the amount of any taxes shown thereon to be due, unless an extension of time for filing is authorized by the Tax Commissioner.

(c) Persons who are fiscal year taxpayers shall similarly file an annual return on or before September 15, 1987, for their short taxable year which ended June 30, 1987, and remit the amount of any taxes shown thereon to be due, unless an extension of time for filing is authorized by the Tax Commissioner.

(d) Persons who keep their records using the accrual method of accounting shall file their annual return for the full or short taxable year ending June 30, 1987, computing their tax liability under such method. A taxpayer shall file an amended return for such year and pay any additional taxes due within thirty days after determining that gross income was under-reported on such annual return, or that any allowable deductions were over-reported.

(e) Persons who keep their records using the cash method of accounting may file their annual return for the full or short taxable year ending June 30, 1987, computing their tax liability under such method: Provided, That such a taxpayer shall file a supplemental return for such year within one month after the close of each calendar quarter during which he received gross income for any activity or portion thereof completed prior to July 1, 1987, and pay any additional taxes shown on the supplemental return to be due. The purpose of this requirement is to minimize the advantage or disadvantage associated with the different methods of accounting when the carrier income tax is repealed.

§11-12A-25. Credit for consumers sales and service tax and use tax paid.

The tax imposed by this article shall be subject to the credit set forth in section nine-b, article fifteen of this chapter and the credit set forth in section three-b, article fifteen-a of this chapter.

§11-12B-1. Short title; arrangement and classification.

This article may be cited as the "Minimum Severance Tax Act." No inference, implication or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this article, and no legal effect shall be given to any descriptive matter of headings relating to any part, section, subsection or paragraph of this article.

§11-12B-2. Definitions.

(a) General. -- When used in this article, or in the administration of this article, the terms defined in subsection (b) shall have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition.

(b) Terms defined.

(1) "Coal" means and includes any material composed predominantly of hydrocarbons and carbon in a solid state and includes, but is not limited to, all materials commonly known as coal, bituminous coal, anthracite coal, lignite, brown coal, peat or jet.

(2) "Delegate" in the phrase "or his delegate," when used in reference to the Tax Commissioner, means any officer or employee of the Tax Division duly authorized by the Tax Commissioner directly, or indirectly by one or more delegations of authority, to perform the function mentioned or described in this article or regulations promulgated thereunder.

(3) "Economic interest" for the purpose of this article is synonymous with the economic interest ownership required by section 611 of the Internal Revenue Code in effect on December 31, 1985, entitling the taxpayer to a depletion deduction for income tax purposes: Provided, That a person who only receives an arm's length royalty shall not be considered as having an economic interest.

(4) "Extraction of coal from the ground" includes extraction by mine owners or operators of coal from the waste or residue of prior mining.

(5) "Fiduciary" means and includes, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person.

(6) "Partnership" includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which coal is severed, extracted, reduced to possession in this state, or is produced or prepared in this state, for sale, profit or commercial use. "Partner" includes a member of such a syndicate, group, pool, joint venture or organization.

(7) "Person" or "company" are herein used interchangeably and include any individual, firm, partnership, mining partnership, joint venture, association, corporation, trust or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is declared by the context.

(8) "Production" for purposes of this article means and includes the initial severance and extraction of coal in place, from a seam within this state, or from the waste or residue of prior mining located within this state.

(9) "Related parties" means two or more persons, organizations or businesses owned or controlled directly or indirectly by the same interests. Control exists if a contract or lease, either written or oral, is entered into whereby one party mines or processes coal owned or held by another party and the owner or lessor participates in the severing, processing or marketing of the coal or receives any value other than an arm's length passive royalty interest.

(10) "Sale" includes any transfer of the ownership or title to property, whether for money or in exchange for other property or services, or any combination thereof.

(11) "Severing" or "severed" means the physical removal of coal from the earth or waters of this state by any means.

(12) "Tax commissioner" means the Tax Commissioner of the State of West Virginia, or his delegate.

(13) "Taxable year' means the calendar year, or the fiscal year ending during such calendar year, upon the basis of which tax liability is computed under this article. "Taxable year" means, in case of a return made for a fractional part of a year under the provisions of this article, or under regulations promulgated by the Tax Commissioner, the period for which such return is made.

(14) "Taxpayer" means and includes any individual, partnership, joint venture, association, corporation, receiver, trustee, guardian, executor, administrator, fiduciary or representative of any kind engaged in the business of producing, severing or extracting coal in this state for sale, profit or commercial use. In instances where contracts (either oral or written) are entered into whereby persons, organizations or businesses are engaged in the business of producing, severing or extracting coal but do not obtain title to or have an economic interest therein, the party who owns the coal or has an economic interest therein is the taxpayer.

(15) "This code" means the Code of West Virginia, 1931, as amended.

(16) "This state" means the State of West Virginia.

(17) "Ton" means two thousand pounds.

§11-12B-3. Imposition of tax, credit.

(a) Imposition of tax. – Upon every person exercising the privilege of engaging within this state in severing, extracting, reducing to possession, or producing coal for sale, profit, or commercial use, there is hereby imposed an annual minimum severance tax equal to 50 cents per ton of coal produced by the taxpayer for sale, profit or commercial use during the taxable year: Provided, That for taxable years ending after May 31, 1993, the minimum severance tax imposed on coal produced by the taxpayer for sale, profit, or commercial use during such taxable year shall be 75 cents per ton, with such rate increase to apply only to tons of coal produced after May 31, 1993: Provided, however, That for taxable years ending after December 31, 1999, the minimum severance tax on coal may not be imposed on any ton of coal mined by underground methods from seams with an average thickness of 45 inches or less produced on or after April 1, 2000, on which the severance tax is imposed by §11-13A-3 of this code.

(b) Credit against the severance tax imposed under §11-13A-1 et seq. of this code – A person who pays the minimum severance tax imposed by this article shall be allowed a credit against the severance tax imposed on the privilege of producing coal by §11-13A-3 of this code, but not including the additional severance tax on coal imposed by §11-13A-6 of this code or, for taxable years ending after December 31, 1999, the severance tax imposed by the provisions of §11-13A-3 of this code on coal mined by underground methods from seams with an average thickness of 45 inches or less produced on or after April 1, 2000. The amount of credit allowed shall be equal to the liability of the taxpayer for the taxable year for payment of the minimum severance tax on coal imposed by this article: Provided, That the amount of credit allowed by this section may not exceed the severance tax liability of the taxpayer for the taxable year determined under §11-13A-3 of this code exclusive of the additional tax on coal imposed by §11-13A-6 of this code and, for taxable years ending after December 31, 1999, of the severance tax imposed by §11-13A-3 of this code on coal mined by underground methods from seams with an average thickness of 45 inches or less produced on or after April 1, 2000, after application of all credits to which the taxpayer may be entitled except any credit allowed pursuant to §5E-1-1 et seq. of this code, any credit for installment payments of estimated tax paid pursuant to §11-12B-6 of this code during the taxable year, and any credit for overpayment of the severance tax imposed under §11-13A-1 et seq. Notwithstanding anything herein to the contrary, in no event may the credit allowed under §5E-1-1 et seq. of this code be allowed as a credit against the minimum severance tax imposed by this article.

§11-12B-4. Accounting periods and methods of accounting.

(a) General rule. -- For purposes of the tax imposed by this article, a taxpayer's taxable year shall be the same as the taxpayer's taxable year for federal income tax purposes.

(b) Change of taxable year. -- If a taxpayer's taxable year is changed for federal income tax purposes, the taxpayer's taxable year for purposes of this article shall be similarly changed. The taxpayer shall provide a copy of the authorization for such change from the Internal Revenue Service, with its annual return for the taxable year filed under this article.

(c) Methods of accounting.

(1) Same as federal. -- A taxpayer's method of accounting under this article shall be the same as the taxpayer's method of accounting for federal income tax purposes. In the absence of any method of accounting for federal income tax purposes, the accrual method of accounting shall be used unless the Tax Commissioner, in writing, consents to or requires use of another method.

(2) Change of accounting methods. -- If a taxpayer's method of accounting is changed for federal income tax purposes, his method of accounting for purposes of this article shall similarly be changed. The taxpayer shall provide a copy of the authorization for such change from the Internal Revenue Service, with its annual return for the taxable year filed under this article.

§11-12B-5. Annual return.

(a) On or before the expiration of one month after the end of the taxable year, every taxpayer subject to the tax imposed by this article shall make and file an annual return for the entire taxable year showing such information as the Tax Commissioner may require and computing the amount of taxes due under this article for the taxable year.

(b) Any taxpayer may elect to file as part of a consolidated, composite or unitary group for purposes of the tax imposed by article thirteen-a of this chapter and if such election is made, the taxpayer shall file a consolidated, composite or unitary return under this article encompassing the same consolidated, composite or unitary group unless the Tax Commissioner shall specifically require or approve a filing on some other basis.

§11-12B-6. Periodic installment payments of estimated tax.

(a) General rule. -- The annual tax levied under this article shall be due and payable in monthly installments during the taxable year. Installment payments shall be due and payable on or before the last day of the month following the month in which the tax accrued: Provided, That the installment payment otherwise due under this subsection on or before June 30 each year shall be remitted to the Tax Commissioner on or before June 15 each year.

(b) Remittance form. -- Each such taxpayer shall, on or before the last day of each month, make out an estimate of the tax for which the taxpayer is liable for the preceding month, in the form prescribed by the Tax Commissioner, sign the same and mail it together with a remittance of the amount of tax due to the office of the Tax Commissioner: Provided, That the installment payment otherwise due under this section on or before June 30 each year shall be remitted to the Tax Commissioner on or before June 15.

(c) Exception. -- Notwithstanding the provisions of subsection (a) of this section, the Tax Commissioner, if he or she deems it necessary to ensure payment of the tax, may require the return and payment under this section for periods of shorter duration than that prescribed in said subsection.

§11-12B-7. Time and place for paying tax shown on returns.

(a) General rule. -- The person required to make the annual return required by this article shall, without assessment or notice and demand from the Tax Commissioner, pay such tax at the time and place fixed for filing the return (determined without regard to any extension of time for filing the return).

(b) Date fixed for payment of tax. -- The date fixed for payment of the taxes imposed by this article shall be deemed to be a reference to the last day fixed for such payment (determined without regard to any extension of time for paying the tax).

§11-12B-8. Extension of time for filing return.

The Tax Commissioner may, upon written request received on or prior to the due date of the annual return, or any periodic estimate, grant a reasonable extension of time for filing any return or other document required by this article upon such terms as he may by regulation prescribe, or by contract require, if good cause satisfactory to the Tax Commissioner is provided by the taxpayer.

§11-12B-9. Extension of time for paying tax.

(a) Amount determined on return. -- The Tax Commissioner may extend the time for payment of the amount of the tax shown, or required to be shown, on any return required by this article (or any periodic installment payment), for a reasonable period not to exceed six months from the date fixed for payment thereof.

(b) Amount determined as deficiency. -- Under regulations prescribed by the Tax Commissioner, he may extend the time for the payment of the amount determined as a deficiency of the taxes imposed by this article for a period not to exceed eighteen months from the date fixed for payment of the deficiency. In exceptional cases, further period of time not to exceed twelve months may be granted. An extension under this subsection (b) may be granted only where it is shown to the satisfaction of the Tax Commissioner that payment of a deficiency upon the date fixed for the payment thereof will result in undue hardship to the taxpayer.

(c) No extension for certain deficiencies. -- No extension shall be granted under this section for any deficiency if the deficiency is due to negligence, to intentional disregard of rules and regulations, or to fraud with intent to evade tax.

§11-12B-10. Place for filing returns or other documents.

Tax returns, statements, or other documents, or copies thereof, required by this article or by regulations shall be filed with the Tax Commissioner by delivery, in person or by mail, to his office in Charleston, West Virginia: Provided, That the Tax Commissioner may, by regulation, prescribe the place for filing such returns, statements, or other documents, or copies thereof.

§11-12B-11. Signing of returns and other documents.

(a) General. -- Any return, statement or other document required to be made under the provisions of this article shall be signed in accordance with instructions or regulations prescribed by the Tax Commissioner.

(b) Signing of corporation returns. -- The return of a corporation shall be signed by the president, vice president, treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized so to act. In the case of a return made for a corporation by a fiduciary, such fiduciary shall sign the return. The fact that an individual's name is signed on the return shall be prima facie evidence that such individual is authorized to sign the return on behalf of the corporation.

(c) Signing of partnership returns. -- The return of a partnership shall be signed by any one of the partners. The fact that a partner's name is signed on the return shall be prima facie evidence that such partner is authorized to sign the return on behalf of the partnership.

(d) Signature presumed authentic. -- The fact that an individual's name is signed to a return, statement, or other document shall be prima facie evidence for all purposes that the return, statement or other document was actually signed by him

(e) Verification of returns. -- Except as otherwise provided by the Tax Commissioner, any return, declaration or other document required to be made under this article shall contain or be verified by a written declaration that it is made under the penalties of perjury.

§11-12B-12. Bond of taxpayer may be required.

(a) Whenever it is deemed necessary to ensure compliance with this article, the Tax Commissioner may require any taxpayer to post a cash or corporate surety bond.

(b) The amount of the bond shall be fixed by the Tax Commissioner but, except as provided in subsection (c) of this section, shall not be greater than three times the average quarterly liability of taxpayers filing returns for quarterly periods, five times the average monthly liability of taxpayers required to file returns for monthly periods, or two times the average periodic liability of taxpayers permitted or required to file returns for other than monthly or quarterly periods.

(c) Notwithstanding the provisions of subsection (b) of this section, no bond required under this section shall be less than $500.

(d) The amount of the bond may be increased or decreased by the Tax Commissioner at any time subject to the limitations provided in this section. The Tax Commissioner may bring an action for a restraining order or a temporary or permanent injunction to restrain or enjoin the operation of a taxpayer's business until the bond is posted and any delinquent tax, including applicable interest and additions to tax has been paid. Such action may be brought in the circuit court of Kanawha County or in the circuit court of any county having jurisdiction over the taxpayer.

§11-12B-13. Collection of tax; Tax Commissioner may require first purchaser to withhold tax of delinquent taxpayer.

Whenever the Tax Commissioner determines that a taxpayer is delinquent in payment of the tax imposed by this article and that collection of the tax imposed by this article will be facilitated or expedited, the Tax Commissioner may require the first person who purchases the coal which is the measure of tax under this article from the taxpayer to withhold the tax due under this article from the purchase price as agent for the state and remit it to the Tax Commissioner as provided in sections seven and eight of this article.

§11-12B-14. Records.

(a) Every taxpayer liable for reporting or paying tax under this article shall keep such records, receipts, invoices and other pertinent papers in such form as the Tax Commissioner may require.

(b) Every taxpayer shall keep such records for not less than three years after the annual return is filed under this article, unless the Tax Commissioner in writing authorizes their earlier destruction. An extension of time for making an assessment shall automatically extend the time period for keeping the records for all years subject to audit covered in the agreement for extension of time.

§11-12B-15. General procedure and administration.

Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter, shall apply to the tax imposed by this article with like effect if said act were applicable only to the tax imposed by this article and were set forth in extenso in this article.

§11-12B-16. Criminal penalties.

Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of this chapter shall apply to the tax imposed by this article with like effect as if said act were applicable only to the tax imposed by this article and were set forth in extenso in this article.

§11-12B-17. Severability.

If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby.

§11-12B-18. Effective date; compliance.

(a) Effective date. -- The tax imposed by this article shall take effect on October 1, 1990, and apply to coal sold or delivered for sale, profit or commercial use on or after that date.

(b) Compliance. -- To facilitate ease of administration and ease of compliance by taxpayers, the Tax Commissioner may require persons subject to the tax imposed by this article and persons subject to the tax imposed by article thirteen-a of this chapter to file combined returns or declarations of estimated tax for both taxes and to make combined payments of such taxes.

§11-12C-1. Definitions.

As used in this article:

(1) "Business activity" means all activities engaged in or caused to be engaged in with the object of gain or economic benefit, direct or indirect, but does not mean any of the activities of foreign corporations enumerated in subsections (b), (c) and (d), section forty-nine, article one, chapter thirty-one of this code.

(2) "Corporate license tax" or "license tax" or "tax" means, in addition to the amount of corporate license tax levied pursuant to this article, all interest, additions to tax, fines and penalties, unless the intention to give the term a more limited meaning is clear from the context in which it is used.

(3) "Delegate" in the phrase "or his delegate," when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Department duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article or rules promulgated thereunder.

(4) "Domestic corporation" means a corporation incorporated under the laws of this state and corporations organized under the laws of the state of Virginia before June 20, 1863, which have its principal place of business and chief works (if it has chief works) in this state. Every other corporation is a foreign corporation.

(5) "Foreign corporation" means a corporation which is not a domestic corporation.

(6) "Nonprofit corporation" means a nonprofit corporation as defined by section six, article one, chapter thirty-one of this code.

(7) "Tax commissioner" means the Tax Commissioner of the State of West Virginia or his or her delegate.

§11-12C-2. Corporate license required; tax levied; exemption from tax; effective date.

(a) Corporate license required. -- No corporation, domestic or foreign, may engage in any business activity in this state without paying the corporate license tax to the Tax Commissioner of the State of West Virginia, except as provided in subsection (c) of this section.

(b) Tax levied. -- Every corporation shall pay an annual corporate license tax for the license year which begins on July 1, of each year and ends the thirtieth day of the following June. This tax shall be in addition to the annual fee, if any, payable to the Secretary of State as attorney-in-fact. The amount of this tax shall be as follows:

(1) Amount of license tax on domestic corporations. -- Every domestic corporation shall pay an annual license tax on its charter for the fiscal year beginning on July 1, of each year, based on its authorized capital stock as follows: If the authorized capital stock be $5,000, or less, $20; if more than $5,000 and not more than $10,000, $30; if more than $10,000 and not more than $25,000, $40; if more than $25,000 and not more than $50,000, $50; if more than $50,000 and not more than $75,000, $80; if more than $75,000 and not more than $100,000, $100; if more than $100,000 and not more than $125,000, $110; if more than $125,000 and not more than $150,000, $120; if more than $150,000 and not more than $175,000, $140; if more than $175,000 and not more than $200,000, $150; if more than $200,000 and not more than $1 million, $180, and an additional 20¢ on each $1,000, or fraction thereof, in excess of $200,000; if more than $1,000,000 and not more than $15,000,000, $345, and an additional 15¢ on each $1,000, or fraction thereof, in excess of $1,000,000; if more than $15,000,000, $2,500. The license tax collected hereunder shall be in addition to the annual fee, if any, payable to the Secretary of State as statutory attorney-in-fact. For the purpose of the assessment of the license tax provided by this section, and for no other purpose, shares of stock having no par value shall be presumed to be of the par value of $25 each: Provided, That if such stock was originally issued for a consideration greater than $25 per share, such license taxes as are required to be paid to the Tax Commissioner shall be computed upon the basis of the consideration for which such stock was issued.

(2) Amount of license tax on foreign corporations. -- It shall be the duty of the Tax Commissioner to assess and fix the license tax of each foreign corporation engaging in business activity in this state according to the proportion of its issued and outstanding capital stock which is represented by its property owned and used in this state, which license tax shall be at the rate prescribed in subdivision (1) of this subsection (b), plus seventy-five percent of such tax. In no event shall any such foreign corporation pay an annual license tax of less than $250, which shall be in addition to the fee of the Secretary of State as statutory attorney-in-fact. The Tax Commissioner may in any case require such additional information as he or she may deem necessary to enable him or her to assess and fix the just amount of license tax of such corporation; it shall be his or her duty to notify every such corporation of the amount so assessed; and it shall be the duty of the corporation to pay the same to the Tax Commissioner within thirty days thereafter, and if it fail to do so it shall be liable to the penalties prescribed in, or pursuant to, this article.

(c) Exemptions. -- Nonprofit corporations are exempt from payment of the corporate license tax but must file with the Tax Commissioner the return required by section three of this article, and pay the annual fee of the Secretary of State as attorney-in-fact under section five of this article if applicable.

§11-12C-3. Payment and collection of tax; deposit of money; return required.

(a) Payment and collection of tax. -- When application is made to the Secretary of State for a certificate of incorporation or authority to do business in this state, the applicant shall pay all taxes and fees due under this article; and the Secretary of State shall collect the corporate license tax for the first year before issuing the certificate. Thereafter, on or before the first day of the license tax year next following the date of the certificate, and on or before the first day of each succeeding license tax year, the corporation shall pay and the Tax Commissioner shall collect the tax for a full license tax year together with the statutory attorney fee: Provided, That if the application is made on or after the first day of the second month preceding the beginning of the next license tax year, and before the first day of the license tax year, the Secretary of State shall collect the tax for the full year beginning on the first day of the next license tax year in addition to the initial tax, together with the statutory attorney fee.

(b) Deposit of money. -- The first year license tax received by the Secretary of State pursuant to the provisions of this article shall be deposited by the Secretary of State as follows: One-half shall be deposited in the state General Revenue Fund and one-half shall be deposited in the services fees and collections account established by section two, article one, chapter fifty-nine of this code. The license tax received by the Tax Commissioner every year after the initial registration shall be deposited into the state General Revenue Fund.

(c) Returns. -- Payment of the tax and statutory attorney fee required under the provisions of this section shall be accompanied by a return on forms provided by the Tax Commissioner for that purpose. The Tax Commissioner shall upon completion of processing the return, forward it to the Secretary of State, together with a list of all corporations which have paid the tax. The return shall contain: (1) The address of the corporation's principal office; (2) the names and mailing addresses of its officers and directors; (3) the name and mailing address of the person on whom notice of process may be served; (4) the name and address of the corporation's parent corporation and of each subsidiary of the corporation licensed to do business in this state; (5) the county or county code in which the principal office address or mailing address of the company is located in; (6) business class code; and (7) any other information the Tax Commissioner considers appropriate. Notwithstanding any other provision of law to the contrary, the Secretary of State shall, upon request of any person, disclose: (A) The address of the corporation's principal office; (B) the names and addresses of its officers and directors; (C) the name and mailing address of the person on whom notice of process may be served; (D) the name and address of each subsidiary of the corporation and the corporation's parent corporation; (E) the county or county code in which the principal office address or mailing address of the company is located; and (F) the business class code.

(d) Purchase of data. -- The Secretary of State will provide electronically, for purchase, any data maintained in the Secretary of State's Business Organizations Database. For the electronic purchase of the entire Business Organizations Database, the cost is $12,000 and for the electronic purchase of the monthly updates of the Business Organizations Database the cost is $1,000.

§11-12C-4. Due date of return; payment of tax.

It shall be the duty of every corporation required to pay the tax to file a properly completed return together with payment of tax owed to the Tax Commissioner by July 1, of the license year; and if it fails to do so it shall be liable for payment of interest, additions to tax and penalties prescribed in article ten of this chapter and subject to the penalties prescribed in section eight of this article.

§11-12C-5. Annual fee of Secretary of State as attorney-in-fact.

Every domestic and foreign corporation and every domestic and foreign limited partnership shall pay an annual fee of $25 for the services of the Secretary of State as attorney-in-fact for the corporation or limited partnership, which fee is due and payable at the initial registration of the corporation and limited partnership and every year thereafter with the same return, collected by the same officers, and accounted for in the same way as the annual license tax imposed on corporations under this article. The Tax Commissioner shall deposit one half of all attorney-in-fact fees collected under this section in the state General Revenue Fund and one half of the fees in the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the Secretary of State. Any balance of attorney-in-fact fees previously collected by the commissioner on behalf of the Secretary of State as provided by chapter two hundred five, acts of the Legislature, 1992 regular session, and remaining in the account to which those deposits were made by the commissioner on or before June 30, 2001, shall be transferred to the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.

§11-12C-6. Notice to corporations taxable; tax as lien.

(a) It shall be the duty of the Tax Commissioner, between April fifteenth and May fifteenth each year, to notify every domestic corporation and every foreign corporation currently registered to do business in this state which is or may be liable for payment of the tax imposed by this article of the time of payment of such tax and the amount thereof, together with the statutory attorney fee, if any. Such notices may be sent through the mails, addressed to the corporation at its last known post office address as shown by the records in the office of the Secretary of State.

(b) The amount of such tax shall be deemed a debt due the state, and shall be a lien as to an innocent purchaser for value, on the property and assets of the corporation prior to all other liens, except the lien for ad valorem property taxes levied on its property, from the time a notice of such lien, specifying the year and the amount for which the lien is claimed, is filed in the office of the clerk of the county commission of the county in which the property subject to such liens is situated. Such clerk shall, upon the filing in his or her office of any such notice, record such notice in the docket where general state tax liens are filed and index the same in the name of the corporation against whom the lien is claimed. Upon payment of such lien debt there shall be executed by the Tax Commissioner and delivered to the clerk of the county commission in whose office notice of such lien is filed a release thereof, which release shall be filed and recorded by such clerk in like manner as releases of judgment or tax liens are filed and recorded. Such tax shall be a preferred debt in case of insolvency.

§11-12C-7. Monthly report by Secretary of State to Tax Commissioner as to corporations.

The Secretary of State shall within twenty days after the close of each month make a report to the Tax Commissioner for the preceding month, in which he or she shall set out the name of every corporation to which he or she issued a certificate of incorporation during the month, as well as the name of each corporation to which he or she issued a certificate of authority, with the amount of license tax paid to him or her by each; also he or she shall set out in such report the names of all corporations to which he or she issued certificates of change of name or of change of location of principal office, dissolution, withdrawal or merger; and a statement of all moneys received during such preceding month from all sources which are due to the state, and pay the same into the treasury; if he or she fails to do so it shall be the duty of the Tax Commissioner to report such failure to the Governor.

§11-12C-8. Administrative and criminal penalties.

The following penalties shall be in addition to the penalties and remedies available under articles nine and ten of this chapter of the code:

(a) Administrative penalty. -- The commissioner shall impose upon each delinquent corporation a fine in the amount of $100 per year for each license tax year or portion thereof in which the license tax return which is due is not filed or the license tax which is owed is not paid. This penalty shall be assessed and collected in the same manner as the license tax.

(b) Criminal penalty. -- It shall be a misdemeanor for a corporation to conduct business for more than thirty consecutive calendar days without paying in full the amount of corporate license tax which is due. The penalty for any officer, agent or employee convicted of such offense shall be a fine equal to a sum of two and one-half times the annual corporate license tax assessed for said corporation, not to exceed $1,000 per conviction.

(c) Revocation of certificate of incorporation or certificate of authority. -- Upon the establishment of a finalized liability for corporate license taxes, not subject to further administrative or judicial review under article ten of this chapter, the certificate of incorporation in the case of a domestic corporation, or the certificate of authority in the case of a foreign corporation, shall be revoked. Any corporation whose certificate of incorporation or certificate of authority has been revoked due to nonpayment of its corporate license taxes shall be reinstated to its former rights as if it had not been delinquent upon payment to the Tax Commissioner of all delinquent license taxes, plus any interest, additions or penalties accruing thereon.

§11-12C-9. Disposition of corporate license tax collected.

All taxes collected under the provisions of this article shall be paid into the General Revenue Fund of the State Treasury in the manner provided by law.

§11-12C-10. Applicability of tax procedure and administration act and tax crimes and penalties act.

Except when a specific provision of this article directly conflicts with a provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter of the code, the provisions of that act are fully applicable to the corporate license tax imposed by this article. In the event of any conflict, the provisions of this article shall have paramount effect, but the two articles shall be construed as complementary and harmonious unless so clearly in conflict that they cannot reasonably be reconciled. However, notwithstanding any provision of that act, the Tax Commissioner may lawfully release the names and addresses of the directors and officers of a corporation to anyone upon written request: Provided, That such request provides the correct name of the corporation as reported to the Tax Commissioner. The Tax Commissioner may charge a reasonable fee to cover the costs of processing such requests.

Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of this chapter shall apply to the tax imposed by this article with like effect as if said act were applicable only to the tax imposed by this article and were set forth in extension in this article.

§11-12C-11. Effective date.

(a) The provisions of this article shall take effect on July 1, 1993, and apply to license tax years beginning July 1, 1993 and thereafter.

(b) Tax liabilities, if any, arising for taxable years ending prior to July 1, 1993, shall be determined, administered, assessed and collected as if sections seventy-six through eighty-four and eighty-six through ninety-one, article twelve of this chapter had not been repealed; and the rights and duties of the taxpayer and the State of West Virginia thereunder shall be fully and completely preserved.

§11-12C-12. Severability.

If any provision of this article or the application thereof to any person or circumstance is for any reason adjudged by any court of competent jurisdiction to be unconstitutional or otherwise invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of other provisions shall not be affected thereby.

§11-12C-13. Repeal of article.

Each provision of this article is repealed for all taxable periods beginning on and after July 1, 2008: Provided, That tax and fee liabilities arising for license tax years ending before July 1, 2008, are determined, paid, administered, assessed and collected as if the tax imposed by this article had not been repealed, and the rights and duties of the taxpayer and the State of West Virginia are fully and completely preserved.

§11-12D-1. Legislative findings and declaration of purpose.

The Legislature hereby finds and declares that the assistance, promotion, encouragement, development and advancement of economic prosperity and employment throughout this state requires an efficient, coherent, accurate and simplified system for the registration of businesses with state and local agencies. The Legislature further finds and declares that the establishment of such a system will promote consistent, fair and efficient compliance with registration, licensing and other similar statutory obligations by all businesses in the state. The Legislature finds that staff of the Secretary of State, the Department of Tax and Revenue and the Bureau of Employment Programs, as well as staff from other state agencies with an interest in the issue, have studied the need for, and the feasibility of, a simplified system of business registration and have designed certain elements of such a system, specifically, a common database of information regarding businesses registering with said agencies. The Legislature recognizes the need for continued involvement and cooperation by said agencies and it is the intent of the Legislature to build upon the work of these agencies in order to develop a simplified business registration system in the manner contemplated by this article. The purposes of the system created by this article are therefore to make government more responsive to the needs of West Virginia businesses in their dealings with government and to better enable government agencies to assure that all West Virginia businesses comply with legal requirements.

§11-12D-2. Establishment of office of business registration; centralized business registration records.

(a) There is hereby established in the Tax Division of the Department of Tax and Revenue the office of business registration.

(b) For the purpose of designing and implementing the simplified business registration system contemplated by this article, there is hereby established the business registration interagency advisory group, which shall consist of representatives designated by the Secretary of State; the secretary of tax and revenue; the executive director of the Development Office; secretary of commerce, labor and environmental resources; and the commissioner of the Bureau of Employment Programs. The advisory group shall consult with representatives of such other state offices and agencies as necessary to accomplish the purposes of this article. In implementing the simplified business registration system described in this article, the Tax Commissioner shall be guided by the recommendations of the advisory group.

(c) The office of business registration, with the cooperation and assistance of all interested governmental entities, shall establish a system of centralized records, which may be in the form of a centralized database, for the acquisition and storage of information the departments, divisions and agencies may require for registration, licensing and other similar statutory purposes related to the initiation of new businesses in West Virginia.

(d) Not later than November 30, 1994, the office of business registration shall design a single basic registration information form for the purpose of fulfilling, to the extent feasible, the business registration information requirements of the Department of Tax and Revenue, the Secretary of State and the Bureau of Employment Programs. The information to be provided on the form will include the name, address and telephone number of the prospective new business; the standard industry code or codes appropriate to the business; the number of employees of the business; and such other appropriate information. Prospective new businesses must register with the office of business registration and disclose the business registration information required by that office.

(e) For each prospective new business seeking to do business in the State of West Virginia, a record of registration information will be entered into the centralized records or database for new business registration.

(f) If all of the business registration information required by the Secretary of State, the Department of Tax and Revenue and the Bureau of Employment Programs can not feasibly be included in a single form, the office of business registration will include on the single form as much of the information as is feasible and will design a system which avoids, to the maximum extent possible, duplication of effort by businesses seeking to register. No later than June 30, 1995, the office of business registration and the advisory group shall make joint recommendations as to additional measures, whether administrative or legislative, needed in order to:

(1) Permit a business to provide all needed registration information in a single step;

(2) Bring all interested governmental entities into the simplified registration system; and

(3) Simplify in any other manner the dealings of businesses with government agencies in West Virginia, with particular emphasis on data management techniques.

§11-12D-3. Agency contact list; dispersal of database information to agencies; agency contact with prospective businesses.

(a) An agency contact list consisting of state government agencies and offices having registration, licensing or other similar statutory provisions related to the initiation of new businesses in West Virginia or which should otherwise have contact with a new business, will be maintained by the office of business registration in conjunction with the centralized records for new business registration.

(b) Based upon the proposed location, size, number of employees, type of business, standard industry code or codes and other pertinent information relating to the business, each prospective new business, upon having a record established in the centralized records for new business registration, shall be informed by the office of business registration of the state agencies or offices having a registration, licensing and other similar statutory provisions related to the initiation of a new business in West Virginia or other function relating to prospective new business such that the agency or office should by law or regulation be given notice of the establishment or operation of a new business in West Virginia. The office of business registration shall establish a record of the new business in the centralized database for the use and benefit of any agency or officer of the State of West Virginia having access to the database and which should by law or regulation receive notice of the establishment or operation of a particular business. The record should contain information necessary to fulfill the regulatory, registration or licensing function of the agency, or in lieu of such information, the name, address and other pertinent information relating to the particular business whereby the agency or office may initiate procedures or make contact with the particular business as is appropriate for the fulfillment of the regulatory, registration, licensing or other statutory duties of the office or agency.

(c) The office of business registration or some other appropriate section of the Department of Tax and Revenue shall provide a list of the names and addresses of all registered businesses located within each county to the county assessor. The list shall be provided at no cost to the county assessor between July 1, and August 1, of each year. Any additional list of businesses provided to the county assessor before the next annual list is provided shall be provided at no more than the actual cost to reproduce the list. The production of information required by the provisions of this subsection shall be considered an exception to and not violative of any requirement for confidentiality otherwise established under the provisions of this chapter.

§11-12D-4. Confidentiality of records of the centralized database for new business registration.

(a) Notwithstanding any other provision of this code, new business registration information may be disseminated to the State of West Virginia, its political subdivisions, agencies and offices in accordance with this article.

(b) Information from the centralized records for new business registration received by any state, local or municipal agency or office is confidential and the provisions of sections five-d and five-s, article ten of this chapter concerning confidentiality and disclosure of taxpayer information apply to such information.

§11-12D-5. Staffing for office of business registration; costs of centralized records system; legislative intent.

(a) It is the intent of the Legislature that the staff of the office of business registration established by this article be composed of existing positions within the departments, divisions and agencies of the state whose functions are centralized by this article, and particularly from existing staff of the Department of Tax and Revenue and the Bureau of Employment Programs.

(b) It is the intent of the Legislature that costs associated with the office of business registration and the centralized records system established in this article be paid, to the maximum extent possible, from existing appropriations to the Department of Tax and Revenue and the Bureau of Employment Programs, except for such additional costs as may be attributable to the development and maintenance of the centralized records system or database. To carry out this intent, the Governor may redirect funds from such appropriations.

§11-12D-6. Limited effect of article; intent of Legislature.

It is the intent of the Legislature in enacting this article to simplify the methods by which government agencies gather information from businesses for the purposes of registration, licensing or other similar statutory purpose related to the initiation of new businesses in West Virginia: Provided, That this article shall not be construed to change any existing requirement of this code, nor to modify any existing agency responsibility or power, except as may be necessary to simplify the information-gathering functions described in this article.

§11-13-1. Definitions.

(a) General. -- When used in this article, or in the administration of this article, the terms defined in subsection (b) shall have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used or by specific definition.

(b) Terms defined. -–

(1) "Person", or the term "company", used in this article interchangeably, includes any individual, firm, copartnership, joint adventure, association, corporation, trust or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.

(2) "Sale", "sales" or "selling" includes any transfer of or title to property or electricity, whether for money or in exchange for other property.

(3) "Taxpayer" means any person liable for any tax hereunder.

(4) "Gross income" means the gross receipts of the taxpayer, received as compensation for personal services and the gross receipts of the taxpayer derived from trade, business, commerce or sales and the value proceeding or accruing from the sale of tangible property (real or personal) or service, or both, and all receipts by reason of the investment of the capital of the business engaged in, including rentals, royalties, fees, reimbursed costs or expenses or other emoluments however designated and including all interest, carrying charges, fees or other like income, however denominated, derived by the taxpayer from repetitive carrying of accounts, in the regular course and conduct of his or her business, and extension of credit in connection with the sale of any tangible personal property or service and without any deductions on account of the cost of property sold, the cost of materials used, labor costs, taxes, royalties paid in cash or in kind or otherwise, interest or discount paid or any other expenses whatsoever.

(5) "Gross proceeds of sales" means the value, whether in money or other property, actually proceeding from the sale of tangible property without any deduction on account of the cost of property sold or expenses of any kind.

(6) "Business" shall include all activities engaged in or caused to be engaged in with the object of gain or economic benefit, either direct or indirect. "Business" shall include the rendering of gas storage service by any person for the gain or economic benefit of any person, including, but not limited to, the storage operator, whether or not incident to any other business activity.

(7) "Gas" means either natural gas unmixed or any mixture of natural and artificial gas or any other gas.

(8) "Storage reservoir" means that portion of any subterranean sand or rock stratum or strata into which gas has been injected for the purpose of storage prior to March 1, 1989.

(9) "Gas storage service" means the injection of gas into a storage reservoir, the storage of gas for any period of time in a storage reservoir or the withdrawal of gas from a storage reservoir. The gas may be owned by the storage operator or any other person.

(10) "Net number of dekatherms of gas injected" means the sum of the daily injection of dekatherms of gas in excess of the sum of the daily withdrawals of dekatherms of gas during a tax month.

(11) "Net number of dekatherms of gas withdrawn" means the sum of the daily withdrawal of dekatherms of gas in excess of the sum of the daily injection of dekatherms of gas during a tax month.

(12) "Gas storage operator" means any person who operates a storage reservoir or provides a storage service as defined in this subsection either as owner or lessee.

(13) "Month" or "tax month" means the calendar month.

(14) "Dekatherm" means the thermal energy unit equal to one million British thermal units (BTU's) or the equivalent of one thousand cubic feet of gas having a heating content of one thousand BTU's per cubic foot.

(15) "Taxable year" means the calendar year, or the fiscal year ending during the calendar year, upon the basis of which tax liability is computed under this article. "Taxable year" means, in case of a return made for a fractional part of a year under the provisions of this article, or under regulations promulgated by the Tax Commissioner, the period for which the return is made.

(16) "Homeowners' association" means a homeowners' association as defined in Section 528 of the Internal Revenue Code of 1986, as amended. The term "homeowners' association" also includes any unit owners' association organized under section one hundred one, article three, chapter thirty-six-b of this code.

(17) "Member", for purposes of the exemption provided in subdivision (7), subsection (b), section three of this article, means a person having membership rights in a homeowners' association, in accordance with the provisions of its articles of incorporation, bylaws or other instruments creating its form and organization; and having bona fide rights and privileges in the organization ordinarily conferred on members of the homeowners association, such as the right to vote, the right to elect officers and directors and the right to hold office within the organization. The term "member" also includes a "unit owner" as that term is defined in section one hundred three, article one, chapter thirty-six-b of this code.

§11-13-2. Imposition of privilege tax.

(a) Imposition of tax. - There is hereby levied and shall be collected annual privilege taxes against the persons, on account of their business and other activities, and in the amount to be determined by the application of rates against the measures of tax as set forth in sections two-d, two-e, two-f, two-m, two-n and two-o of this article.

(b) If any person liable for any tax under section two-m shall ship or transport his products or any part thereof out of the state without making sale of such products, the value of the products in the condition or form in which they exist immediately before transportation out of the state shall be the basis for the assessment of the tax imposed in the applicable section, except in those instances in which another measure of the tax is expressly provided. The Tax Commissioner shall prescribe equitable and uniform rules for ascertaining the value.

(c) In determining value, however, as regards sales from one to another of affiliated companies or persons, or under other circumstances where the relation between the buyer and seller is such that the gross proceeds from the sale are not indicative of the true value of the subject matter of the sale, the Tax Commissioner shall prescribe uniform and equitable rules for determining the value upon which the applicable privilege tax shall be levied, corresponding as nearly as possible to the gross proceeds from the sale of similar products of like quality or character where no common interest exists between the buyer and seller but the circumstances and conditions are otherwise similar.

§11-13-2a.

Repealed.

Acts, 1989, 1st Ex. Sess., Ch. 2.

§11-13-2b.

Repealed.

Acts, 1989 1st Ex. Sess., Ch. 2.

§11-13-2c.

Repealed.

Acts, 1989, 1st Ex. Sess., Ch. 2.

§11-13-2d.  Public service or utility business.

(a) Upon any person engaging or continuing within this state in any public service or utility business, except railroad, railroad car, express, pipeline, telephone and telegraph companies, water carriers by steamboat or steamship and motor carriers, the tax imposed by section two of this article shall be equal to the gross income of the business derived from such activity or activities multiplied by the respective rates as follows:

(1) Street and interurban and electric railways, one and four-tenths percent;

(2) Water companies, four and four-tenths percent, except as to income received by municipally owned water plants;

(3) Electric light and power companies, four percent on sales and demand charges for domestic purposes and commercial lighting and four percent on sales and demand charges for all other purposes, and except as to income received by municipally owned plants producing or purchasing electricity and distributing  same:  Provided, That electric light and power companies which engage in the supplying of public service but which do not generate or produce in this state the electric power they supply shall be taxed on the gross income derived from sales of power which they do not generate in this state at the rate of three percent on sales and demand charges for domestic purposes and commercial lighting and three percent on sales and demand charges for all other purposes, except as to income received by municipally owned plants:  Provided, however, That the sale of electric power under this section shall be taxed at the rate of two percent on that portion of the gross proceeds derived from the sale of electric power to a plant location of a customer engaged in a manufacturing activity, if the contract demand at such plant location exceeds two hundred thousand kilowatts per hour in a  year, or if the usage of such plant location exceeds two hundred thousand kilowatts per hour in a year:  Provided further, That the sale of electric power under this section shall be exempt from the tax imposed by this section and section two of this article if it is separately metered and consumed in an electrolytic process for the manufacture of chlorine in this state, or is separately metered and consumed in the manufacture of ferroalloy in this state, and the rate reduction herein provided to the taxpayer shall be passed on to the manufacturer of the chlorine or ferroalloy.  As used in this section, the term "ferroalloy" means any of various alloys of iron and one or more other elements used as a raw material in the production of steel:  And provided further, That the term does not include the final production of steel;

(4) Natural gas companies, four and twenty-nine hundredths percent on the gross income:  Provided, That the sale of natural gas under this section shall be exempt from the tax imposed by this section and section two of this article to the extent that the natural gas is separately metered and is gas from which the purchaser derives hydrogen and carbon monoxide for use in the manufacture of chemicals in this state, and the full economic benefit of the exception herein provided to the taxpayer shall be passed on to such purchaser of the natural gas:  Provided, however, That there shall be no exemption for the sale of any natural gas from which the purchaser derives carbon monoxide or hydrogen for the purpose of resale;

(5) Toll bridge companies, four and twenty-nine hundredths percent; and

(6) Upon all other public service or utility business, two and eighty-six hundredths percent.

(b) The measure of this tax shall not include gross income derived from commerce between this state and other states of the United States or between this state and foreign countries.  The measure of the tax under this section shall include only gross income received

from the supplying of public service.  The gross income of the taxpayer from any other activity shall be included in the measure of the tax imposed upon such other activity by the appropriate section or sections of this article.

(c) Beginning March 1, 1989, electric light and power companies shall determine their liability for payment of tax under this section and sections two-m and two-n of this article.  If for taxable months beginning on or after March 1, 1989, liability for tax under section two-n of this article is equal to or greater than the sum of the power company's liability for payment of tax under subdivision (3), subsection (a) of this section and section two-m of this article, then the company shall pay the tax due under section two-n of this article and not the tax due under subdivision (3), subsection (a) of this section and section two-m of this article.  If tax liability under section two-n is less, then tax shall be paid under subdivision (3), subsection (a) of this section and section two-m of this article and the tax due under section two-n shall not be paid.  The provisions of subdivision (3), subsection (a) of this section shall expire and become null and void for taxable years beginning on or after January 1, 1998.

(d) Notwithstanding the provisions of subsection (c) of this section, beginning June 1, 1995, electric light and power companies that actually paid tax based on the provisions of subdivision (3), subsection (a) of this section or section two-m of this article for every taxable month in 1994 shall determine their liability for payment of tax under this article in accordance with subdivision (1) of this subsection.  All other electric light and power companies shall determine their liability for payment of tax under this article exclusively under section two-o of this article.

(1) If for taxable months beginning on or after June 1, 1995, liability for tax under section two-o of this article is equal to or greater than the sum of the power company's liability for payment of tax under subdivision (3), subsection (a) of this section and section two-m of this article, then the company shall pay the tax due under section two-o of this article and not the tax due under subdivision (3) subsection (a) of this section and section two-m of this article.  If tax liability under section two-o is less, then the tax shall be paid under subdivision (3), subsection (a) of this section and section two-m of this article and the tax due under section two-o shall not be paid.

(2) The provisions of subdivision (3), subsection (a) of this section shall expire and become null and void for taxable years beginning on or after January 1, 1998.

(e) Notwithstanding the provisions of subdivision (1), subsection (a) of this section or any other provision of this article to the contrary, on and after January 1, 2017, no person engaging or continuing within this state in the service or business of street and interurban and electric railways is subject to the tax imposed by section two of this article.

§11-13-2e. Business of gas storage; effective date.

(a) Rate of tax. -- Upon every person engaging or continuing within this state in any gas storage business utilizing one or more gas storage reservoirs located within this state, the tax imposed by section two of this article shall be equal to 5¢ multiplied by the sum of either (1) the net number of dekatherms of gas injected into such a gas storage reservoir during a tax month or (2) the net number of dekatherms of gas withdrawn from such a gas storage reservoir during a tax month, whichever is applicable for that month, whether or not such gas is owned by, or is injected or withdrawn for, the storage operator or any other person. Fractional parts of dekatherms shall be included in the measure of tax as provided in regulations promulgated by the Tax Commissioner: Provided, That effective July 1, 1995, the net number of dekatherms of gas injected or the net number of dekatherms withdrawn shall not exceed the storage utilization index as defined in this subsection. For purposes of this section, the term "storage utilization index" means the utilization of storage reservoir, through the operation of existing and functional facilities available for storage use during the five year base period ending December 31, 1994, and the storage utilization index shall be the five year average of taxable dekatherms as determined for each taxable period of the stated base period.

(b) Effective date. -- The measure of tax under this section shall include gas injected into, or withdrawn from, a gas storage reservoir after February 28, 1989.

(c) Administration; installment payments. -- The tax due under this section shall be administered, collected and enforced as provided in this article and articles nine and ten of this chapter. The tax due under this section shall be remitted in periodic installments as provided in section four of this article, except that such periodic installment payments shall be remitted on or before the twentieth day of the month following the month or quarter in which the tax accrues.

(d) Notice of retirement from service. -- A taxpayer subject to the tax due under this section shall provide written notice to the Joint Committee on Government and Finance and the Department of Tax and Revenue eighteen months prior to the retirement from service of a storage reservoir.

§11-13-2f. Manufacturing or producing synthetic fuel from coal; rate and measure of tax; definitions; dedication, deposit and distribution of tax; expenditure of distributions received by synthetic fuel-producing counties for economic development and infrastructure improvement pursuant to plan approved by West Virginia Development Office; priority for expenditure of distributions received by other county commissions; date for expiration of tax.

(a) Rate and measure of tax. –- There is hereby imposed an annual tax, in accordance with section two of this article, upon every person engaging or continuing within this state in the business of manufacturing or producing synthetic fuel from coal for sale, profit or commercial use, either directly or through the activity of others, in whole or in part, and the amount of the tax shall be equal to 50¢ per ton of synthetic fuel manufactured or produced for sale, profit or commercial use during the taxable year. When a fraction of a ton is included in the measure of tax, the rate of tax as to that fraction of a ton shall be proportional. The measure of tax is the total number of tons of synthetic fuel product manufactured or produced in this state during the taxable year for sale, profit or commercial use regardless of the place of sale or the fact that deliveries may be made to points outside this state. Liability for payment of this tax shall accrue when the synthetic fuel product is sold by the manufacturer or producer, determined by when the producer or manufacturer recognizes gross receipts for federal income tax purposes. When there is no sale of the synthetic fuel product, liability for tax shall accrue when the synthetic fuel product is shipped from the manufacturing facility for commercial use, whether by the taxpayer or by a related party, except as otherwise provided in legislative rules promulgated by the Tax Commissioner as provided in article three, chapter twenty-nine-a of this code.

(b) Definitions. -- For purposes of this section:

(1) "Fiscal year" means the fiscal year of this state.

(2) "Fuel" means material that produces usable heat or power upon combustion.

(3) "Fuel manufactured or produced from coal" means liquid, gaseous or solid fuels produced from coal, including, but not limited to, such fuels when used as feedstocks.

(4) "Office of chief inspector" means the State Auditor as ex officio chief inspector and supervisor of local government offices in accordance with section eleven, article nine, chapter six of this code.

(5) "Provisional share" means the portion of the Synthetic Fuel-Producing Counties Grant Fund that is available for possible distribution to each synthetic fuel-producing county. The amount of each county's provisional share is derived by dividing the share computation base by the number of synthetic fuel-producing counties in this state during the fiscal year. The share computation base is the sum of: (A) Net revenues deposited in the synthetic fuel-producing counties grant fund for the fiscal year; and (B) any amounts repooled for the fiscal year into the synthetic fuel-producing counties grant fund under this section; less (C) the amount dedicated and allotted to the director of the Development Office under this section for administration of the synthetic fuel-producing counties grant program. A county shall be counted as a synthetic fuel-producing county only if a synthetic fuel-manufacturing plant actively produced synthetic fuel in the county during the fiscal year.

(6) "Synthetic fuel manufactured or produced from coal" or "synthetic fuel" means and includes, but is not limited to, any fuel that is made or formed into a briquette, fragment, sheet, flake or other solid form by combining a binder or binding substance with coal dust, coal fines, crushed coal, pulverized coal, stoker fines, waste coal, coal or material derived from slurry ponds, coal or material derived from gob piles or any combination of the aforementioned materials without regard to whether any federal tax credit is, or would have been, available for or with relation to the production of such fuel. The term "synthetic fuel manufactured or produced from coal" or "synthetic fuel" also means, but is not limited to, fuel manufactured or produced from coal for which credit is allowable for federal income tax purposes under section twenty-nine of the United States Internal Revenue Code, as in effect on January 1, 2001, or for which credit would have been allowable if the synthetic fuel was produced from a facility, or expansion of a facility, that meets the requirement of section twenty-nine of the Internal Revenue Code or would have met the requirements on January 1, 2001, notwithstanding that such facility or expansion of a facility may have been placed in service either prior to or subsequent to January 1, 2001. "Synthetic fuel" does not include coke or coke gas.

(7) "Synthetic fuel-producing county" means a county of this state in which a synthetic fuel-manufacturing plant is physically located that actively produces synthetic fuel during the fiscal year. For purposes of determining whether a county is a synthetic fuel-producing county, the location of the synthetic fuel-manufacturing company headquarters, the state of incorporation or organization of the company or the location of any managerial office or facility or other office or facility of the company, other than the synthetic fuel-manufacturing plant, and the physical location where the coal or other material used in synthetic fuel manufacturing is extracted from the earth shall not be determinative of the designation of a county as a synthetic fuel-producing county.

(8) "Synthetic fuel-nonproducing county" means any county of this state other than a synthetic fuel-producing county.

(9) "Ton" means two thousand pounds.

(10) "Director of the Development Office" or "director" means the director of the West Virginia Development Office created and continued under article two, chapter five-b of this code.

(c) Credits not allowed against tax. -- When determining the amount of tax due under this section, no credit shall be allowed under section three-c or three-d of this article or under any other article of this chapter or any other chapter of this code unless it is expressly provided that the credit applies to the business and occupation tax on the privilege of manufacturing or producing synthetic fuel.

(d) Emergency rule authorized. -- The Tax Commissioner may, in the commissioner's discretion, promulgate an emergency rule as provided in article three, chapter twenty-nine-a of this code that clarifies, explains or implements the provisions of this section.

(e) Dedication and distribution of proceeds, creation of funds. -–

(1) The first $4 million of the net amount of tax collected during each fiscal year for exercise of the privilege taxed under this section shall be deposited into the Mining and Reclamation Operations Fund created in the state Treasury by section thirty-two, article three, chapter twenty-two of this code.

(2) There is hereby created a fund in the state Treasury entitled the Synthetic Fuel-Producing Counties Grant Fund which shall be a revolving fund that shall carry over each fiscal year. The net amount of tax collected for exercise of the privilege taxed under this section in excess of the first $4 million during each fiscal year, not to exceed $2,060,000, shall be deposited in the Synthetic Fuel-Producing Counties Grant Fund. Moneys in the Synthetic Fuel-Producing Counties Grant Fund in excess of moneys allocated to the director of the Development Office shall be dedicated to and distributed among the synthetic fuel-producing counties under the Synthetic Fuel-Producing Counties Grant Program as provided in this section. The county commission of a synthetic fuel-producing county shall use ninety percent of the funds distributed to the county out of the Synthetic Fuel-Producing Counties Grant Fund for infrastructure improvement and ten percent of the funds distributed to the county out of the Synthetic Fuel-Producing Counties Grant Fund for economic development.

(3) There is hereby created in the state Treasury a fund entitled the synthetic fuel-nonproducing counties fund which shall be a revolving fund that shall carry over each fiscal year. The net amount of tax collected for exercise of the privilege taxed under this section in excess of the first $6,060,000 during each fiscal year, not to exceed $2,000,000, shall be deposited in the synthetic fuel-nonproducing counties fund and equally divided and distributed among the synthetic fuel-nonproducing counties. The county commission of a synthetic fuel-nonproducing county shall first use such moneys for Regional Jail and Correctional Facility Authority and county jail expenses, and shall use any remainder for such lawful public purposes as the county commission may prescribe.

(4) The net amount of the tax collected in excess of $8,060,000 during each fiscal year shall be dedicated to the General Revenue Fund.

(5) The office of chief inspector shall annually determine that a county's expenditures of moneys distributed under this section is in compliance with the requirements of this section.

(6) For purposes of this subsection, "net amount of tax collected" means the gross amount of tax collected under this section less allowed refunds and credits.

(f) Administration of the Synthetic Fuel-Producing Counties Grant Program. --

(1) The Director of the Development Office is hereby authorized and empowered to administer the distribution of moneys in the Synthetic Fuel-Producing Counties Grant Fund.

(A) On or before the plan submission due date prescribed by the Director of the Development Office, the county commission of each synthetic fuel-producing county may annually, or with such frequency as may be prescribed by the Director of the Development Office, submit a plan to the Director of the Development Office for use of the county's provisional share of the synthetic fuel-producing counties grant fund.

(B) A grant of moneys out of the Synthetic Fuel-Producing Counties Grant Fund shall only be distributed to a synthetic fuel-producing county or encumbered for the use of a synthetic fuel-producing county after approval by the Director of the Development Office of the plan for use of the county's provisional share of the fund, submitted to the Director of the Development Office by the county commission. The Director of the Development Office shall approve the synthetic fuel-producing county's plan for use if the plan for use reasonably conforms to the requirements of this section and the rules promulgated with relation thereto.

(C) If the county's plan is approved, the Director of the Development Office may authorize a grant of money out of the Synthetic Fuel-Producing Counties Grant Fund to the county to be used by the county as specified in the approved plan for use.

(D) The Director of the Development Office may authorize distribution of any amount encumbered for the use of the county and carried over from a prior period in accordance with applicable plans for use previously approved.

(E) The Director of the Development Office may authorize encumbrances for any synthetic fuel-producing county of moneys in the Synthetic Fuel-Producing Counties Grant Fund, up to the amount of the county's provisional share for the fiscal year, for one or more qualified uses specified in the county's plan for use if the county's approved plan for use of the moneys sets forth a qualified use for the county's provisional share over a period of several fiscal years or a qualified use of the moneys calling for accumulation and distribution to the county in one or more subsequent fiscal years. Encumbered funds may carry over to succeeding fiscal years and may be used to accumulate reserves over a period of time for use by the county.

(F) In no case may an amount distributed to a synthetic fuel-producing county exceed the amount of a county's provisional share for the fiscal year plus the amount of moneys encumbered in the fund for the use of the particular county and carried over from a prior period.

(2) The Director of the Development Office may approve distributions of a county's provisional share of the Synthetic Fuel-Producing Counties Grant Fund for use as the county's share for state or federal matching funds programs so long as, in the aggregate, ninety percent of the funds distributed to the county out of the Synthetic Fuel-Producing Counties Grant Fund are used for infrastructure improvement and ten percent of the funds distributed to the county out of the Synthetic Fuel-Producing Counties Grant Fund are used for economic development: Provided, That no county may use any amount distributed out of the Synthetic Fuel-Producing Counties Grant Fund as money to be matched under the funds matching program authorized by subsection (b), section three, article two, chapter five-b of this code.

(3) Repooling. -–

(A) Any synthetic fuel-producing county that has failed to have its plan, or amended and resubmitted plan or plans, approved by the Director of the Development Office for a period of eighteen months immediately subsequent to the initial plan submission date shall lose its entitlement to the provisional share of revenues deposited in the fund and attributable to the fiscal year to which that plan relates and the provisional share that would have been attributable to that county for that fiscal year shall be pooled with all other receipts in the Synthetic Fuel-Producing Counties Grant Fund attributable to revenues for the fiscal year during which the eighteen-month period ends and shall then be reallocated equally to all synthetic fuel-producing counties as part of the provisional share of each, as if the repooled moneys were tax revenues deposited into the fund during the fiscal year in which the eighteen-month period ended. For purposes of this subsection, the "initial plan submission date" means the earlier of: (i) The required submission date, as prescribed by the Director of the Development Office, for the initial plan for use of the county's provisional share of the Synthetic Fuel-Producing Counties Grant Fund for the fiscal year, with such extensions of time to file as may be authorized under rules promulgated by the Director of the Development Office; or (ii) the actual date of submission of the initial plan for the fiscal year. For purposes of this subsection, the term "initial plan" means the first plan for use that was submitted, or that should have been submitted, by a county for the fiscal year, before the submission of any amended, revised or resubmitted plan by the county for that fiscal year.

(B) Any synthetic fuel-producing county which fails to timely submit a plan for use of its provisional share of the Synthetic Fuel-Producing Counties Grant Fund, with such extensions of time to file as may be authorized under rules promulgated by the Director of the Development Office, shall lose its entitlement to its provisional share of revenues deposited in the fund and attributable to that fiscal year and the provisional share that would have been attributable to that county for that year shall be pooled with all other receipts in the Synthetic Fuel-Producing Counties Grant Fund attributable to revenues for the fiscal year and shall be reallocated equally among the remaining synthetic fuel-producing counties other than the county or counties that have failed to timely file the plan for use and shall be made available for distribution to those remaining counties, as part of their provisional share for the fiscal year.

(C) Funds encumbered pursuant to approval of the Director of the Development Office under this subsection shall not be subject to repooling: Provided, That if the Director of the Development Office determines that moneys previously distributed to a county out of the Synthetic Fuel-Producing Counties Grant Fund have not been used as required under the approved plan for the county or determines that previously distributed moneys derived from encumbered funds have not been used for the qualified purpose for which the encumbrance was originally approved or if there appears to be a reasonable probability that encumbered funds will not be used for that qualified purpose, the Director of the Development Office may revoke the encumbrance of any funds of that synthetic fuel-producing county remaining in the fund and repool the funds so encumbered for reallocation to all synthetic fuel-producing counties. The Director of the Development Office may, in the director's discretion, give the county an opportunity to cure the nonqualified use of moneys derived from the Synthetic Fuel-Producing Counties Grant Fund or to submit an alternative plan for use of the encumbered funds which may be approved by the director if that plan complies with the requirements of this section.

(g) Promulgation of rules by the director of the Development Office authorized. -– The Director of the Development Office, in his or her discretion, may promulgate an emergency rule as provided in article three, chapter twenty-nine-a of this code that clarifies, explains or implements the Synthetic Fuel-Producing Counties Grant Program, distribution of moneys out of or encumbrance of moneys in the Synthetic Fuel-Producing Counties Grant Fund. The Director of the Development Office is hereby granted continuing authority to promulgate in accordance with article three, chapter twenty-nine-a of this code such interpretive, legislative or procedural rules, or any combination thereof, for administration of the Synthetic Fuel-Producing Counties Grant Program as the Director of the Development Office may find necessary and appropriate. The director of the Development Office may prescribe criteria for qualification under the infrastructure improvement use requirement and the economic development requirement of this section.

(h) There is hereby dedicated and allocated to the West Virginia Development Office $60,000 annually for administration of the Synthetic Fuel-Producing Counties Grant Program under this section. $60,000 shall be paid out of the Synthetic Fuel-Producing Counties Grant Fund to the director of the Development Office each fiscal year for administration of the Synthetic Fuel-Producing Counties Grant Program.

(i) Effective date. -–

(1) This section as enacted in the year 2000 took effect upon enactment. The measure of tax shall include all synthetic fuel sold or shipped after January 1, 2001, regardless of when the synthetic fuel was manufactured or produced in this state.

(2) Amendments to this section enacted during the fifth extraordinary session of the Legislature in the year 2001 shall have retroactive effect to January 1, 2001, and the measure of tax shall include all synthetic fuel sold or shipped after January 1, 2001, regardless of when the synthetic fuel was manufactured or produced in this state.

§11-13-2g.

Repealed.

Acts, 1989, 1st Ex. Sess., Ch. 2.

§11-13-2h.

Repealed.

Acts, 1989, 1st Ex. Sess., Ch. 2.

§11-13-2i.

Repealed.

Acts, 1989, 1st Ex. Sess., Ch. 2.

§11-13-2j.

Repealed.

Acts, 1989, 1st Ex. Sess., Ch. 2.

§11-13-2k.

Repealed.

Acts, 1989, 1st Ex. Sess., Ch. 2.

§11-13-2l.

Repealed.

Acts, 1989, 1st Ex. Sess., Ch. 2.

§11-13-2m. Business of generating or producing electric power; exception; rates.

(a) Upon every person engaging or continuing within this state in the business of generating or producing electric power for sale, profit or commercial use, either directly or through the activity of others, in whole or in part, when the sale thereof is not subject to tax under section two-d of this article, the amount of the tax to be equal to the value of the electric power, as shown by the gross proceeds derived from the sale thereof by the generator or producer of the same multiplied by a rate of four percent, except that the rate shall be two percent on that portion of the gross proceeds derived from the sale of electric power to a plant location of a customer engaged in a manufacturing activity, if the contract demand at such plant location exceeds two hundred thousand kilowatts per hour per year, or if the usage at such plant location exceeds two hundred thousand kilowatts per hour in a year.

(b) The measure of this tax shall be the value of all electric power generated or produced in this state for sale, profit or commercial use, regardless of the place of sale or the fact that transmission may be to points outside this state: Provided, That the gross income received by municipally owned plants generating or producing electricity shall not be subject to tax under this article.

(c) Beginning March 1, 1989, every person taxable under this section shall determine their liability for payment of tax under this section and under subdivision (3), subsection (a), section two-d of this article and section two-n of this article. If for taxable months beginning on or after March 1, 1989 such person's liability for payment of tax under this section and subdivision (3), subsection (a), section two-d of this article is less than the amount of such person's liability for payment of tax under section two-n of this article, then such person shall pay the tax due under section two-n and not the sum of the amount of tax due under this section and under subdivision (3), subsection (a), section two-d of this article. If the tax due under section two-n of this article is less, then the amount of tax due under this section and subdivision (3), subsection (a), section two-d of this article shall be paid. The provisions of this section shall expire and become null and void for taxable years beginning on or after January 1, 1998.

(d) Beginning June 1, 1995, electric light and power companies that actually paid tax based on the provisions of subdivision (3), subsection (a), section two-d of this article or this section for every taxable month in 1994 shall determine their liability for payment of tax under this article in accordance with subdivision (1) of this subsection. All other electric light and power companies shall determine their liability for payment of tax under this article exclusively under section two-o of this article.

(1) If for taxable months beginning on or after June 1, 1995, liability for tax under section two-o of this article is equal to or greater than the sum of the power company's liability for payment of tax under subdivision (3), subsection (a), section two-d of this article and this section, then the company shall pay the tax due under section two-o of this article and not the tax due under subdivision (3), subsection (a), section two-d of this article and this section. If tax liability under section two-o is less, then the tax shall be paid under subdivision (3), subsection (a), section two-d of this article and this section and the tax due under section two-o shall not be paid.

(2) The provisions of this section shall expire and become null and void for taxable years beginning on or after January 1, 1998. Notwithstanding this subsection or any other provision of this chapter to the contrary, an electric light and power company that generates and produces power in this state shall continue to be deemed to be an "industrial taxpayer" for purposes of subdivision (8), subsection (b), section two, article thirteen-d of this chapter, and gross income of an electric light and power company from the generation and production of power in this state and sales and demand charges for electric power sold in this state shall continue to be deemed "gross income of the business subject to tax under article thirteen of this chapter" for purposes of subsection (b), section seventeen, article twenty-three of this chapter all to the extent of and in accordance with the law in effect immediately preceding the effective date of this section as amended in 1995.

§11-13-2n. Business of generating or producing or selling electric power; exemptions; rates.

(a) Rate of tax. -- Upon every person engaging or continuing within this state in the business of generating or producing electricity for sale, profit or commercial use, either directly or indirectly through the activity of others, in whole or in part, or in the business of selling electricity to consumers, or in both businesses, the tax imposed by section two of this article shall be equal to:

(1) Twenty-six hundredths of one cent times the kilowatt hours of net generation available for sale that was generated or produced in this state by the taxpayer during the taxable year, except that this rate shall be five hundredths of one cent times the kilowatt hours of net generation available for sale that was generated or produced in this state by the taxpayer and sold to a plant location of a customer engaged in manufacturing activity if the contract demand at such plant location exceeds two hundred thousand kilowatts per hour per year or if the usage at such plant location exceeds two hundred thousand kilowatts per hour in a year: Provided, That in order to encourage the development of industry to improve the environment of this state, the tax imposed by this section on any person generating or producing electric power and an alternative form of energy at a facility located within this state substantially from gob or other mine refuse shall be equal to five hundredths of one cent times the kilowatt hours of net generation or production available for sale. The measure of tax under this paragraph shall be equal to the total kilowatt hours of net generation available for sale that was generated or produced in this state by the taxpayer during the taxable year, regardless of the place of sale or use, or the fact that transmission may be made to points outside this state.

(2) Nineteen hundredths of one cent times the kilowatt hours of electricity sold to consumers in this state that were not generated or produced in this state by the taxpayer, except that the rate shall be five hundredths of one cent times the kilowatt hours of electricity not generated or produced in this state by the taxpayer which is sold to a plant location in this state of a customer engaged in manufacturing activity if the contract demand at such plant location exceeds two hundred thousand kilowatts per hour per year or if the usage at such plant location exceeds two hundred thousand kilowatts per hour in a year. The measure of tax under this paragraph shall be equal to the total kilowatt hours of electricity sold to consumers in this state during the taxable year, that were not generated or produced in this state by the taxpayer, to be determined by subtracting from the total kilowatt hours of electricity sold to consumers in the state the net kilowatt hours of electricity generated or produced in the state by the taxpayer during the taxable year.

The West Virginia Public Service Commission shall, upon application of a public utility, allow an immediate pass-through to the utility's customers in this state in the form of a rate surcharge the increase enacted by the Legislature during its third extraordinary session, 1990, in the tax imposed by this article upon electricity generated or produced in this state and sold to consumers in this state and upon electricity not generated or produced in this state that is sold to consumers in this state.

(b) Exemptions. -- The provisions of this section shall not apply to:

(1) Kilowatt hours of electricity generated and sold, or purchased and resold, by a municipally owned plant.

(2) Kilowatt hours of electric power that are separately metered and consumed in an electrolytic process for the manufacture of chlorine.

(3) Kilowatt hours of electric power that are separately metered and consumed in the manufacture of ferroalloy. As used in this paragraph, the term "ferroalloy" means any of the various alloys of iron and one or more other elements used as a raw material in the production of steel but shall not include electric power used in the production of steel.

(4) The full economic benefits provided to the taxpayer by subdivisions (2) and (3) of this subsection shall be passed on to the manufacturer of the chlorine or ferroalloy.

(c) Credit. -- Any person taxable under subdivision (2), subsection (a) of this section shall be allowed a credit against the amount of tax due under that paragraph for any electric power generation taxes paid by the taxpayer with respect to such electric power to the state in which such power was generated or produced. The amount of credit allowed shall not exceed the tax liability arising under subdivision (2), subsection (a) of this section with respect to the sale of such power.

(d) Transition rule. -- Beginning March 1, 1989, electric light and power companies shall determine their liability for payment of tax under this section and sections two-d and two-m of this article. If for taxable months beginning on or after March 1, 1989, liability for tax under section two-n of this article is equal to or greater than the sum of the power company's liability for payment of tax under subdivision (3), subsection (a), section two-d and section two-m of this article, then the company shall pay the tax due under section two-n of this article and not the tax due under subdivision (3), subsection (a) of section two-d and section two-m of this article. If tax liability under section two-n is less, then tax shall be paid under paragraph (3), subsection (a), section two-d and section two-m of this article and the tax due under section two-n shall not be paid. The provisions of this subsection (d) shall expire and become null and void for taxable years beginning on or after January 1, 1998.

(e) Effective date. -- The amendments to this section made in the year 1990 shall take effect on October 1, 1990: Provided, That as to calendar months ending before such date, the tax rates specified in this section, as then in effect shall be fully and completely preserved.

(f) Beginning June 1, 1995 and thereafter, electric light and power companies shall not determine their tax liability under this section.

§11-13-2o. Business of generating or producing or selling electricity on and after June 1, 1995; definitions; rate of tax; exemptions; effective date.

(a) Definitions. — As used in this section:

(1) “Average four-year generation” is computed by dividing by four the sum of a generating unit’s net generation, expressed in kilowatt hours, for calendar years 1991, 1992, 1993, and 1994. For any generating unit which was newly installed and placed into commercial operation after January 1, 1991, and prior to the effective date of this section, “average four-year generation” is computed by dividing the unit’s net generation for the period beginning with the month in which the unit was placed into commercial operation and ending with the month preceding the effective date of this section by the number of months in the period and multiplying the resulting amount by twelve with the result being a representative 12-month average of the unit’s net generation while in an operational status.

(2) “Capacity factor” means a fraction, the numerator of which is average four-year generation and the denominator of which is the maximum possible annual generation.

(3) “Generating unit” means a mechanical apparatus or structure which through the operation of its component parts is capable of generating or producing electricity and is regularly used for this purpose.

(4) “Inactive reserve” means the removal of a generating unit from commercial service for a period of not less than 12 consecutive months as a result of lack of need for generation from the generating unit or as a result of the requirements of state or federal law or the removal of a generating unit from commercial service for any period as a result of any physical exigency which is beyond the reasonable control of the taxpayer.

(5) “Maximum possible annual generation” means the product, expressed in kilowatt hours, of official capability times 8,760 hours.

(6) “Official capability” means the nameplate capacity rating of a generating unit expressed in kilowatts.

(7) “Peaking unit” means a generating unit designed for the limited purpose of meeting peak demands for electricity or filling emergency electricity requirements.

(8) “Retired from service” means the removal of a generating unit from commercial service for a period of at least 12 consecutive months with the intent that the unit may not thereafter be returned to active service.

(9) “Taxable generating capacity” means the product, expressed in kilowatts, of the capacity factor times the official capability of a generating unit, subject to the modifications set forth in subdivisions (2) and (3), subsection (c) of this section.

(10) “Net generation” for a period means the kilowatt hours of net generation available for sale generated or produced by the generating unit in this state during the period less the following:

(A) Twenty-one twenty-sixths of the kilowatt hours of electricity generated at the generating unit and sold during the period to a plant location of a customer engaged in manufacturing activity if the contract demand at the plant location exceeds 200,000 kilowatts per hour in a year or where the usage at the plant location exceeds 200,000 kilowatts per hour in a year;

(B) Twenty-one twenty-sixths of the kilowatt hours of electricity produced or generated at the generating unit during the period by any person producing electric power and an alternative form of energy at a facility located in this state substantially from gob or other mine refuse;

(C) The total kilowatt hours of electricity generated at the generating unit exempted from tax during the period by §11-13-2(n)(b) of this code.

(b) Rate of tax. — Upon every person engaging or continuing within this state in the business of generating or producing electricity for sale, profit or commercial use, either directly or indirectly through the activity of others, in whole or in part, or in the business of selling electricity to consumers, or in both businesses, the tax imposed by §11-13-2 of this code shall be equal to:

(1) For taxpayers who generate or produce electricity for sale, profit or commercial use, the product of $22.78 multiplied by the taxable generating capacity of each generating unit in this state owned or leased by the taxpayer, subject to the modifications set forth in subsection (c) of this section: Provided, That with respect to each generating unit in this state which has installed a flue gas desulfurization system, the tax imposed by section two of this article shall, on and after January 31, 1996, be equal to the product of $20.70 multiplied by the taxable generating capacity of the units, subject to the modifications set forth in subsection (c) of this section: Provided, however, That with respect to kilowatt hours sold to or used by a plant location engaged in manufacturing activity in which the contract demand at the plant location exceeds 200,000 kilowatts per hour per year or if the usage at the plant location exceeds 200,000 kilowatts per hour in a year, in no event may the tax imposed by this article with respect to the sale or use of the electricity exceed five hundredths of one cent times the kilowatt hours sold to or used by a plant engaged in a manufacturing activity; and

(2) For taxpayers who sell electricity to consumers in this state that is not generated or produced in this state by the taxpayer, nineteen hundredths of one cent times the kilowatt hours of electricity sold to consumers in this state that were not generated or produced in this state by the taxpayer, except that the rate shall be five hundredths of one cent times the kilowatt hours of electricity not generated or produced in this state by the taxpayer which is sold to a plant location in this state of a customer engaged in manufacturing activity if the contract demand at such plant location exceeds 200,000 kilowatts per hour per year or if the usage at such plant location exceeds 200,000 kilowatts per hour in a year. The measure of tax under this subdivision shall be equal to the total kilowatt hours of electricity sold to consumers in the state during the taxable year, that were not generated or produced in this state by the taxpayer, to be determined by subtracting from the total kilowatt hours of electricity sold to consumers in the state the net kilowatt hours of electricity generated or produced in the state by the taxpayer during the taxable year. For the purposes of this subdivision, net kilowatt hours of electricity generated or produced in this state by the taxpayer includes the taxpayer’s pro rata share of electricity generated or produced in this state by a partnership or limited liability company of which the taxpayer is a partner or member. The provisions of this subdivision may not apply to those kilowatt hours exempt under §11-13-2(n)(b) of this code. Any person taxable under this subdivision shall be allowed a credit against the amount of tax due under this subdivision for any electric power generation taxes or a tax similar to the tax imposed by subdivision (1) of this subsection paid by the taxpayer with respect to the electric power to the state in which the power was generated or produced. The amount of credit allowed may not exceed the tax liability arising under this subdivision with respect to the sale of the power.

(c) The following provisions are applicable to taxpayers subject to tax under subdivision (1), subsection (b) of this section:

(1) Retired units; inactive reserve. — If a generating unit is retired from service or placed in inactive reserve, a taxpayer may not be liable for tax computed with respect to the taxable generating capacity of the unit for the period that the unit is inactive or retired. The taxpayer shall provide written notice to the Joint Committee on Government and Finance, as well as to any other entity as may be otherwise provided by law, 18 months prior to retiring any generating unit from service in this state.

(2) New generating units. — If a new generating unit, other than a peaking unit, is placed in initial service on or after the effective date of this section, the generating unit’s taxable generating capacity shall equal 40 percent of the official capability of the unit: Provided, That the taxable generating capacity of a county-owned or municipally owned generating unit shall equal zero percent of the official capability of the unit and for taxable periods ending on or before December 31, 2007, the taxable generating capacity of a generating unit utilizing a turbine powered primarily by wind shall equal five percent of the official capability of the unit: Provided, however, That for taxable periods beginning on or after January 1, 2008, the taxable generating capacity of a generating unit utilizing a turbine powered primarily by wind shall equal 12 percent of the official capability of the unit: Provided further, That for taxable periods beginning on or after January 1, 2020, the taxable generating capacity of a generating unit utilizing solar photovoltaic methods shall equal eight percent of the official capacity of the unit. For purposes of this subsection, “solar photovoltaic methods” means a module or array of solar cells electronically connected in a series or in parallel to provide suitable voltages and currents for electricity generation. Methods include, but are not limited to, a grid-connected photovoltaic system designed to operate in parallel with an electric utility grid.

(3) Peaking units. — If a peaking unit is placed in initial service on or after the effective date of this section, the generating unit’s taxable generating capacity shall equal five percent of the official capability of the unit: Provided, That the taxable generating capacity of a county-owned or municipally owned generating plant shall equal zero percent of the official capability of the unit.

(4) Transfers of interests in generating units. — If a taxpayer acquires an interest in a generating unit, the taxpayer shall include the computation of taxable generating capacity of the unit in the determination of the taxpayer’s tax liability as of the date of the acquisition. Conversely, if a taxpayer transfers an interest in a generating unit, the taxpayer may not for periods thereafter be liable for tax computed with respect to the taxable generating capacity of the transferred unit.

(5) Proration, allocation. — The Tax Commissioner shall promulgate rules in conformity with §29A-3-1 et seq. of this code to provide for the administration of this section and to equitably prorate taxes for a taxable year in which a generating unit is first placed in service, retired, or placed in inactive reserve, or in which a taxpayer acquires or transfers an interest in a generating unit, to equitably allocate and reallocate adjustments to net generation, and to equitably allocate taxes among multiple taxpayers with interests in a single generating unit, it being the intent of the Legislature to prohibit multiple taxation of the same taxable generating capacity.

So as to provide for an orderly transition with respect to the rate-making effect of this section, those electric light and power companies which, as of the effective date of this section, are permitted by the West Virginia Public Service Commission to utilize deferred accounting for purposes of recovery from ratepayers of any portion of business and occupation tax expense under this article shall be permitted, until the time that action pursuant to a rate application or order of the commission provides for appropriate alternative rate-making treatment for that expense, to recover the tax expense imposed by this section by means of deferred accounting to the extent that the tax expense imposed by this section exceeds the level of business and occupation tax under this article currently allowed in rates.

(6) Electricity generated by manufacturer or affiliate for use in manufacturing activity. — When electricity used in a manufacturing activity is generated in this state by the person who owns the manufacturing facility in which the electricity is used and the electricity-generating unit or units producing the electricity so used are owned by the manufacturer, or by a member of the manufacturer’s controlled group, as defined in Section 267 of the Internal Revenue Code of 1986, as amended, the generation of the electricity may not be taxable under this article: Provided, That any electricity generated or produced at the generating unit or units which is sold or used for purposes other than in the manufacturing activity shall be taxed under this section and the amount of tax payable shall be adjusted to be equal to an amount which is proportional to the electricity sold for purposes other than the manufacturing activity. The Department of Revenue shall promulgate rules in accordance with §29A-3-1 et seq. of this code: Provided, however, That the rules shall be promulgated as emergency rules.

(d) Beginning June 1, 1995, electric light and power companies that actually paid tax based on §11-13-2d(a)(3) of this code or §11-13-2m of this code for every taxable month in 1994 shall determine their liability for payment of tax under this article in accordance with subdivisions (1) and (2) of this subsection. All other electric light and power companies shall determine their liability for payment of tax under this article exclusively under this section beginning June 1, 1995, and thereafter.

(1) If for taxable months beginning on or after June 1, 1995, liability for tax under this section is equal to or greater than the sum of the power company’s liability for payment of tax under §11-13-2d(a)(3) of this code and this section, then the company shall pay the tax due under this section and not the tax due under §11-13-2d(a)(3) of this code and §11-13-2m of this code. If tax liability under this section is less, then the tax shall be paid under §11-13-2d(a)(3) of this code and §11-13-2m of this code and the tax due under this section may not be paid.

(2) Notwithstanding subdivision (1) of this subsection, for taxable years beginning on or after January 1, 1998, all electric and light power companies shall determine their liability for payment of tax under this article exclusively under this section.

§11-13-2p. Credit against tax based on the taxable generating capacity of a generating unit utilizing a turbine powered primarily by wind.

(a) For taxable periods beginning on or after January 1, 2008, a credit shall be allowed against tax imposed by this article and calculated based on the taxable generating capacity of a generating unit utilizing a turbine powered primarily by wind. The total credit shall be equal to the amount of qualified contractually agreed contributions as defined in this section. The amount of total credit shall be reduced each year by the amount of credit annually applied to reduce tax under this section.

(b) Definitions. -- For purposes of this section:

(1) "Qualified contractually agreed contribution" means money paid, or the lower of the cost or fair market value, at the time of transfer, of property transferred, by the taxpayer, the owner of the taxpayer or the operator or owner of the wind turbine unit to a county in which the wind turbine unit is located, a county school board of the county in which the wind turbine unit is located or to a municipality located in the county in which the wind turbine unit is located pursuant to a written transfer agreement.

(A) The term "qualified contractually agreed contribution" does not include any payment in lieu of taxes or any tax, fee or levy paid to any county, county school board or municipality or to any other governmental subdivision, agency or instrumentality of this state or of any county or municipality.

(B) The term "qualified contractually agreed contribution" does not include any payment in lieu of taxes or any tax, fee or levy paid to any county, county school board or municipality or to any other governmental subdivision, agency or instrumentality of any state other than this state or of any county or municipality of any state other than this state.

(C) The term "qualified contractually agreed contribution" does not include any payment in lieu of taxes or any tax, fee or levy paid to the United States or to any governmental subdivision of the United States or to any agency or instrumentality of the United States or to any foreign government or subdivision, agency or instrumentality thereof.

(2) "Taxpayer" means any person that is legally liable for tax imposed by this article that is calculated based on the taxable generating capacity of a generating unit utilizing a turbine powered primarily by wind.

(3) "Wind turbine unit" means, and is limited to, an electricity-generating unit utilizing a turbine powered primarily by wind that has a taxable generating capacity determined in accordance with subdivision (2), subsection (c), section two-o of this article.

(4) "Written transfer agreement" means a written contract or written promise to transfer money or property to a county in which the wind turbine unit is located, a county school board of the county in which the wind turbine unit is located or a municipality located in the county in which the wind turbine unit is located, executed not later than March 1, 2007, by the taxpayer, the owner of the taxpayer or the operator or owner of the wind turbine unit and executed by the county commission of the county in which the wind turbine unit is located or by any officer or representative of the county commission having authority to execute binding legal documents for the county commission, the county school board of the county in which the wind turbine unit is located or any officer or representative of the county school board having authority to execute binding legal documents for the county school board, or the city council, mayor or city manager of a municipality located in the county in which the wind turbine unit is located or any officer or representative of the municipality having authority to execute binding legal documents for the municipality.

(c) Credit limitations. –-

(1) The total amount of credit allowable under this section is limited to the amount of qualified contractually agreed contributions made pursuant to a written transfer agreement.

(2) The credit allowed under this section may only be applied to offset annual tax imposed by this article that is measured by the taxable generating capacity of the wind turbine unit. No other tax imposed by or under this article may be offset by the credit allowed under this section and no other tax imposed by this code may be offset by the credit.

(3) The credit allowed under this section shall be applied after application of the credit allowed under article thirteen-d of this chapter, as applicable, and after any other applicable credits allowed by this chapter against tax imposed by this article.

(4) The amount of credit allowed under this section and the amount of the credit allowed under article thirteen-d of this chapter may not, in combination, reduce the amount of annual tax imposed by this article on the taxable generating capacity of the wind turbine unit to an amount that is less than fifty percent of the amount of annual tax that would have been imposed by this article on the wind turbine unit if the taxable generating capacity of the wind turbine unit was set at five percent of the official capacity of the wind turbine unit.

(d) Time over which credit may be applied. –-

(1) The total amount of credit determined under subsection (a) of this section shall be reduced annually by the amount of credit applied in each tax year to offset tax under this section.

(2) The credit allowed under this section may be applied annually, beginning on the later of:

(A) The year a qualified contractually agreed contribution in money was paid or a qualified contractually agreed contribution in property was delivered to the county, the county school board or the municipality; or

(B) The year in which title thereto irrevocably passed to the transferee;

(3) The credit may thereafter be taken in each succeeding tax year until the amount of total credit has been exhausted or until the ninth succeeding tax year after the contractually agreed contribution of money was so paid or the contractually agreed contribution of property was so delivered. Credit remaining after the ninth succeeding tax year is forfeited.

(4) Credit to which a taxpayer is entitled under this section shall be applied in an order and sequence such that the credit earned earliest in time shall be applied first in any tax year to offset tax under this section.

(e) Credit for successor businesses and transferees of a wind turbine unit; apportionment. --

(1) Mere change in form of business. -– The credit allowed under this section shall not be forfeited by reason of a mere change in the form of the entity or organization that is conducting the business so long as the successor business continues to remain a taxpayer, as defined in this section, in this state, operating the wind turbine unit that was originally owned or operated by the predecessor taxpayer. Such successor shall acquire the amount of credit that remains available under this section for each subsequent taxable year until the credit expires or is exhausted, based on the years remaining and amount of credit remaining to which the transferor was entitled at the time of the transfer.

(2) Transfer or sale to successor. –- The credit allowed under this section shall not be forfeited by reason of a transfer or sale to a successor business of a wind turbine unit so long as the successor business continues to remain a taxpayer, as defined in this section, in this state, operating the wind turbine unit that was originally owned or operated by the predecessor taxpayer. Upon transfer or sale of a wind turbine unit, the successor shall acquire the amount of credit that remains available under this section for each subsequent taxable year until the credit expires or is exhausted, based on the years remaining and amount of credit remaining to which the transferor was entitled at the time of the transfer.

(3) Apportionment in the year of transfer. –- Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this section for each taxable year subsequent to the taxable year of the transferor during which the transfer occurred and, for the year of transfer, an amount of annual credit for the year in the same proportion as the number of days remaining in the transferor's taxable year bears to the total number of days in the transferor's taxable year.

§11-13-3. Exemptions; annual exemption and periods thereof.

(a) Monthly exemption. –- For any tax imposed under the provisions of this article with respect to any period beginning on or after July 1, 1985, there is an exemption in every case of $41.67 per month in amount of tax computed under the provisions of this article. Only one exemption is allowed to any one person, whether the person exercises one or more privileges taxable hereunder.

(b) Exemptions from tax. –- The provisions of this article do not apply to:

(1) Insurance companies which pay the State of West Virginia a tax upon premiums: Provided, That the exemption does not extend to that part of the gross income of insurance companies which is received for the use of real property, other than property in which any company maintains its office or offices, in this state, whether the income is in the form of rentals or royalties;

(2) Nonprofit cemetery companies organized and operated for the exclusive benefit of their members;

(3) Fraternal societies, organizations and associations organized and operated for the exclusive benefit of their members and not for profit: Provided, That the exemption does not extend to that part of the gross income arising from the sale of alcoholic liquor, food and related services of fraternal societies, organizations and associations which are licensed as private clubs under the provisions of article seven, chapter sixty of this code;

(4) Corporations, associations and societies organized and operated exclusively for religious or charitable purposes and production credit associations, organized under the provisions of the federal Farm Credit Act of 1933;

(5) Any credit union organized under the provisions of chapter thirty-one of this code or any other chapter of this code: Provided, That the exemptions of this section do not apply to corporations or cooperative associations organized under the provisions of article four, chapter nineteen of this code;

(6) Gross income derived from advertising service rendered in the business of radio and television broadcasting;

(7) Gross income of a nonprofit homeowners' association received from assessments on its members for community services such as road maintenance, common area maintenance, water service, sewage service and security service; and

(8) Nonprofit water and sewer companies governed by the Public Service Commission of West Virginia and organized and operated for the exclusive benefit of their members.

§11-13-3a. Deduction for contributions to an employee stock ownership plan by a manufacturer.

(a) General rule. -- There shall be allowed as a deduction from gross income reportable under section two-b of this article, for the taxable year, the amount of qualified contribution to an employee stock ownership plan made during the taxable year, for any period beginning after June 30, 1983.

(b) Definitions. -- For purposes of this section the term:

(1) "Employee stock ownership plan" means a plan as defined in paragraph (7), subsection (e), section 4975 of the Internal Revenue Code.

(2) "Internal Revenue Code" means the Internal Revenue Code of 1954, as amended, which is codified as Title 26 of the United States Code.

(3) "Qualified contribution" means the amount of employer contributions during the taxable year to an employee stock ownership plan, which are deductible by the corporation for federal income tax purposes under paragraph (10), subsection (a), section 404 of the Internal Revenue Code, and which do not exceed the amount allowable under paragraph (6), subsection (c), section 415 of the Internal Revenue Code.

§11-13-3b. Definitions; reduction allowed in tax due; how computed.

When used in this section, the phrase "normal tax" means the tax computed by the application of rates against values or gross income as set forth in sections two-a to two-m, inclusive, in this article, less the amount of the annual exemption for the period actually engaged in business.

The normal tax shall be computed by the application of rates against values or gross income as set forth in sections two-a to two-m, inclusive, of this article, less the amount of the annual exemption allowed and determined under section three of this article.

The surtax shall be computed by the application of the surtax rate against gross income as set forth in section two-k of this article.

§11-13-3c. Tax credit for business investment and jobs expansion.

(a) There shall be allowed as a credit against the tax imposed by this article, the amount determined under article thirteen-c of this chapter, relating to tax credit for business investment and jobs expansion.

(b) The Tax Commissioner shall prescribe such regulations as he deems necessary to carry out the purposes of this section and article thirteen-c of this chapter.

§11-13-3d. Tax credit for industrial expansion and industrial revitalization, and eligible research and development projects.

(a) There shall be allowed as a credit against the tax imposed by this article, the amount determined under article thirteen-d of this chapter, relating to tax credit for industrial expansion and industrial revitalization, and eligible research and development projects.

(b) The Tax Commissioner shall prescribe such regulations as he deems necessary to carry out the purposes of this section and article thirteen-d of this chapter.

(c) Any tax credit to which an industrial taxpayer became entitled under section three-c of this article, before its repeal, shall be fully and completely preserved under the provision of this section, as amended, as if this section were in effect, at the time the qualifying investment was made.

§11-13-3e. Tax credit for coal loading facilities; regulations.

(a) There shall be allowed as a credit against the tax imposed by this article, the amount determined under article thirteen-e of this chapter, relating to tax credit for new or expanded or revitalized coal loading facilities.

(b) The Tax Commissioner may prescribe such regulations as may be necessary to carry out the purposes of this section and article thirteen-e of this chapter.

§11-13-3f. Tax credit for reducing electric, natural gas or water utility rates for low-income residential customers; regulations.

(a) There shall be allowed as a credit against the tax imposed by this article, the cost of providing electric or natural gas or water utility service, or any combination of electric, natural gas or water utility services, at reduced rates to qualified low-income residential customers which has not been reimbursed by any other means.

(b) For tax years beginning on or after January 1, 2019, there shall be allowed as a credit against the tax imposed by this article, the cost of providing sewer service or sewer and water service at reduced rates to qualified low-income residential customers which has not been reimbursed by any other means.

(c) The tax commissioner may prescribe such regulations as may be necessary to carry out the purposes of this section, of §11-13F-1 et seq. of this code and of §11-24-11 of this code.

§11-13-3g. Tax credit for increased generation of electricity from coal.

(a) There shall be allowed as a credit against the tax imposed by section two of this article, on the privilege taxable under section two-m of this article, the amount determined under article thirteen-h of this chapter, providing a credit for increased generation of electricity at electric power plants in this state which burn coal produced by miners who are residents of this state.

(b) The Tax Commissioner may prescribe such regulations as he deems necessary to carry out the purposes of this section and article thirteen-g of this chapter.

§11-13-4. Computation of tax; payment.

The taxes levied hereunder shall be due and payable as follows:

(a) For taxpayers whose estimated tax under this article exceeds $1,000 per month, the tax shall be due and payable in monthly installments on or before the last day of the month following the month in which the tax accrued. Each such taxpayer shall, on or before the last day of each month, make out an estimate of the tax for which he is liable for the preceding month, sign the same and mail it together with a remittance, in the form prescribed by the Tax Commissioner, of the amount of tax to the office of the commissioner: Provided, That the installment payment otherwise due under this subdivision on or before June 30 each year shall be remitted to the Tax Commissioner on or before June 15 each year, beginning June 15, 1988. In estimating the amount of tax due for each month, the taxpayer may deduct one twelfth of any applicable tax credits allowable for the taxable year and one twelfth of the total exemption allowed for such year.

(b) For taxpayers whose estimated tax under this article does not exceed $1,000 per month, the tax shall be due and payable in quarterly installments within one month from the expiration of each quarter in which the tax accrued. Each such taxpayer shall, within one month from the expiration of each quarter, make out an estimate of the tax for which he is liable for such quarter, sign the same and mail it together with a remittance, in the form prescribed by the Tax Commissioner, of the amount of tax to the office of the commissioner. In estimating the amount of tax due for each quarter, the taxpayer may deduct one fourth of any applicable tax credits allowable for the taxable year and one fourth of the total exemption allowed for such year.

(c) When the total tax for which any person is liable under this article does not exceed $2,000 in any year, the taxpayer may pay the same quarterly as aforesaid, or, with the consent in writing of the Tax Commissioner, at the end of the month next following the close of the tax year.

(d) The above provisions of this section notwithstanding, the Tax Commissioner, if he deems it necessary to ensure payment of the tax, may require the return and payment under this section for periods of shorter duration than those prescribed above.

§11-13-5. Return and remittance by taxpayer.

On or before the expiration of one month after the end of the tax year, each taxpayer shall make a return for the entire tax year showing the gross proceeds of sales or gross income of business, trade or calling, and compute the amount of tax chargeable against him in accordance with the provisions of this article and deduct the amount of monthly or quarterly payments (as hereinbefore provided), if any, and transmit with his report a remittance in the form prescribed by the Tax Commissioner covering the residue of the tax chargeable against him to the office of the Tax Commissioner; such return shall be signed by the taxpayer if made by an individual, or by the president, vice president, secretary or treasurer of a corporation if made on behalf of a corporation. If made on behalf of a partnership, joint adventure, association, trust, or any other group or combination acting as a unit, any individual delegated by such firm, copartnership, joint adventure, association, trust or any other group or combination acting as a unit shall sign the return on behalf of the taxpayer. The Tax Commissioner, for good cause shown, may extend the time for making the annual return on the application of any taxpayer and grant such reasonable additional time within which to make the same as may, by him be deemed advisable.

§11-13-6.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-7.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-8.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-8a.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-9. Tax year.

(a) Taxable year. -- For purposes of the tax imposed by this article, a taxpayer's taxable year shall be the same as the taxpayer's taxable year for federal income tax purposes.

(b) Method of accounting. -- A taxpayer's method of accounting under this article shall be the same as the taxpayer's method of accounting for federal income tax purposes. In the absence of any method of accounting for federal income tax purposes, the tax under this article shall be computed under such method that in the opinion of the Tax Commissioner clearly reflects such income.

(c) Adjustments. -- In computing a taxpayer's liability for tax for any taxable year under a method of accounting different from the method under which the taxpayer's liability for tax under this article for the previous year was computed, there shall be taken into account those adjustments which are determined, under regulations prescribed by the Tax Commissioner, to be necessary solely by reason of the change in order to prevent amounts from being duplicated or omitted.

§11-13-10. Tax cumulative.

The tax imposed by this article shall be in addition to all other licenses and taxes levied by law as a condition precedent to engaging in any business, trade or calling. A person exercising a privilege taxable under this article, subject to the payment of all licenses and charges which are condition precedent to exercising the privilege taxed, may exercise the privilege for the current tax year upon the condition that he shall pay the tax accruing under this article.

§11-13-11.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-12.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-13. Receivership or insolvency proceedings.

In the event a business subject to the tax imposed by this article shall be operated in connection with a receivership or insolvency proceeding, the court under whose direction such business is operated shall, by the entry of a proper order in the cause, make provision for the regular payment of such taxes as the same become due.

§11-13-14.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-15.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-16.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-16a.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-17. Priority in distribution in receivership, etc.; personal liability of administrator.

In the distribution, voluntary or compulsory, in receivership, bankruptcy or otherwise, of the estate of any person, firm or corporation, all taxes due and unpaid under this article shall be paid from the first money available for distribution in priority to all claims, except taxes and debts due the United States which under federal law are given priority over the debts and liens created by this article. Any person charged with the administration of an estate who shall violate the provisions of this section shall be personally liable for any taxes accrued and unpaid under this article, which are chargeable against the person, firm or corporation whose estate is in administration.

§11-13-18. Agents for collection of delinquent taxes.

The Tax Commissioner may, with the approval of the Governor, appoint not more than twelve agents for the entire state for the collection of delinquent taxes, delinquent license taxes and all additions to tax, penalties and interest. All delinquent taxes, delinquent license taxes and all additions to tax, penalties and interest so collected shall be, by the Tax Commissioner, paid into the State Treasury to the credit of the state general fund. The salary of every such agent appointed shall be determined by the State Tax Commissioner by and with the approval of the Governor.

§11-13-19. Certificate to clerk of county court of assessment of taxes.

The Tax Commissioner for the more effective collection of the tax may file with the clerk of the county court of any county a certified copy of an assessment of taxes under this article. A certificate so filed shall be recorded in a book provided for the purpose and thereafter shall constitute binding notice of the lien created by this article upon all lands of the taxpayer located in the county as against all parties whose interest arose after such recordation. Upon payment of taxes delinquent under this article the lien of which shall have been recorded the Tax Commissioner shall certify in duplicate the fact and amount of payment and the balance due, if any, and shall forward the certificates, one to the taxpayer and one to the clerk of the county court of the county where the taxpayer shall have been listed as delinquent. The clerk of the county court shall record the certificate in the book in which releases are recorded, without payment of any additional fee. From the date that such a certificate is admitted to record the land of the taxpayer in the county shall be free from any lien for taxes under this article accrued to the date that the certificate was issued.

§11-13-20.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-21.

Repealed.

Acts, 1984 Reg. Sess., Ch. 170.

§11-13-22.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-23.

Repealed.

Acts, 1955 Reg. Sess., Ch. 165.

§11-13-24.

Repealed.

Acts, 1978 Reg. Sess., Ch. 95.

§11-13-25. Cities, towns or villages restricted from imposing additional tax.

Notwithstanding the provisions of section five, article thirteen, chapter eight of this code, no city, town or village shall impose a business and occupation tax:

(a) Upon occupations or privileges taxed under sections two- a, two-b, two-c, two-d, two-e, two-g, two-h, two-i and two-j of this article, in excess of rates in effect under this article on January 1, 1959;

(b) Upon occupations or privileges taxed under section two- k of this article, in excess of one percent of gross income;

(c) Under section two-l of this article; or

(d) Upon occupations or privileges taxed under section two- m of this article, in excess of the tax rate applicable to such occupations or privileges under section two-b of this article on January 1, 1959.

§11-13-26. Severability.

If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby.

§11-13-27. General procedure and administration.

Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter shall apply to the tax imposed by this article thirteen with like effect as if said act were applicable only to the tax imposed by this article thirteen and were set forth in extenso in this article thirteen.

§11-13-28. Effective date; transition rules.

(a) The provisions of sections two-a, two-b, two-c, two-e, two-g, two-h, two-i, two-j, two-k and two-l of this article are inoperative as of July 1, 1987. Persons who are fiscal year taxpayers having a fiscal year ending on June 30, 1987, shall file their annual return for fiscal year 1987, on or before July 31, 1987, and remit the amount of any taxes shown thereon to be due.

(b) Persons who are calendar year taxpayers and who are not subject to the tax imposed by this article for months beginning on or after July 1, 1987, and persons who are fiscal year taxpayers having a fiscal year ending on any date other than June 30, 1987, and who are not subject to the tax imposed by this article for months beginning on or after July 1, 1987, shall file their annual returns on or before July 31, 1987, for the short taxable year which ended June 30, 1987, and remit the amount of any taxes shown thereon to be due. Persons required to file an annual return for a short taxable year may claim a portion of the annual exemption allowed under section three of this article, determined in accordance with the amount of the exemption allowable for each month in the short taxable year. The $5,000 annual exemption allowed to producers of natural gas shall similarly be calculated and allowed on a monthly basis at the rate of $416.66 for each month of the short taxable year ending on June 30, 1987.

(c) Persons engaged in activities taxable under sections two-a, two-b, two-c, two-e, two-g, two-h, two-i, two-j, two-k and two-l of this article prior to July 1, 1987, are taxable under either article thirteen-a or twenty-three of this chapter, or both, on and after such date.

(d) Persons who keep their records using the accrual method of accounting shall file their annual return for the full or short taxable year ending June 30, 1987, computing their tax liability under such method. A taxpayer shall file an amended return for such year and pay any additional taxes due within thirty days after determining that gross income, gross proceeds of sale or gross value were under reported on such annual return, or that any allowable deductions were over reported.

(e) Persons who keep their records using the cash method of accounting may file their annual return for the full or short taxable year ending June 30, 1987, computing their tax liability under such method: Provided, That such a taxpayer shall file a supplemental return for such year within one month after the close of each quarter during which he or she received gross income or gross proceeds of sale for any activity or portion thereof completed prior to July 1, 1987, and pay any additional taxes shown on the supplemental return to be due. The purpose of this requirement is to minimize the advantage or disadvantage associated with the different methods of accounting when the business and occupation tax no longer applies to the taxpayer's ongoing business activity.

(f) Tax liabilities, if any arising for taxable years ending prior to July 1, 1987, shall be determined, administered, assessed and collected as if sections two-a, two-b, two-c, two-e, two-g, two-h, two-i, two-j, two-k and two-l of this article had not been effectively repealed; and the rights and duties of the taxpayer and the State of West Virginia shall be fully and completely preserved.

(g) Persons who keep their records using a method of accounting other than the accrual method or cash method shall file their returns in accordance with regulations and instructions promulgated by the Tax Commissioner.

§11-13-29. Tax commissioner to furnish comparative study reports to Governor and Legislature, dates therefor.

The State Tax Commissioner, who will be recipient of informational reports and tax returns from taxpayers in respect of the revised state tax structure on business, beginning on July 1, 1987, shall furnish a comparative study report in respect of the data concerning businesses and their changed tax liabilities, entitlement to tax credits, and general categories wherein tax liability is substantially increased or lessened. Such report shall be furnished to the Governor and to the Legislature at its regular sessions of the year 1986 and 1987, with particular emphasis on the elements of equity and adequacy that the acquired data may reflect in respect of the state's major industries and taxpayers, on the basis of their being subjected to taxation under the revised state tax structure.

§11-13-30. Tax credit for coal coking facilities; regulations.

(a) Effective July 1, 1987, notwithstanding any provisions of this code to the contrary, any company granted a reduced rate loan pursuant to section seven, article two, chapter five-b of this code shall be allowed a credit against the tax imposed by this article for a period of five years from the date the reduced rate loan is issued.

(b) The Tax Commissioner may prescribe such regulations as may be necessary to carry out the purposes of this section.

§11-13-31. Credit for consumers sales and service tax and use tax paid.

The tax imposed by this article shall be subject to the credit set forth in section nine-b, article fifteen of this chapter and the credit set forth in section three-b, article fifteen-a of this chapter.

§11-13A-1. Short title; arrangement and classification.

This article may be cited as the "Severance and Business Privilege Tax Act of 1993". No inference, implication or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this article, and no legal effect shall be given to any descriptive matter of headings relating to any part, section, subsection, subdivision or paragraph of this article.

§11-13A-2. Definitions.

(a) General rule. — When used in this article, or in the administration of this article, the terms defined in subsection (b), (c) or (d) of this section shall have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used or by specific definition.

(b) General terms defined. — Definitions in this subsection apply to all persons subject to the taxes imposed by this article.

(1) “Business” includes all activities engaged in, or caused to be engaged in, with the object of gain or economic benefit, direct or indirect, and whether engaged in for profit, or not for profit, or by a governmental entity: Provided, That “business” does not include services rendered by an employee within the scope of his or her contract of employment. Employee services, services by a partner on behalf of his or her partnership and services by a member of any other business entity on behalf of that entity are the business of the employer or partnership, or other business entity as the case may be, and reportable as such for purposes of the taxes imposed by this article.

(2) “Corporation” includes associations, joint-stock companies and insurance companies. It also includes governmental entities when and to the extent such governmental entities engage in activities taxable under this article.

(3) “Delegate” in the phrase “or his or her delegate”, when used in reference to the Tax Commissioner, means any officer or employee of the state Tax Division of the Department of Tax and Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the function mentioned or described in this article or regulations promulgated thereunder.

(4) “Fiduciary” means and includes a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person.

(5) “Gross proceeds” means the value, whether in money or other property, actually proceeding from the sale or lease of tangible personal property, or from the rendering of services, without any deduction for the cost of property sold or leased or expenses of any kind.

(6) “Includes” and “including”, when used in a definition contained in this article, shall not be deemed to exclude other things otherwise within the meaning of the term being defined.

(7) “Partner” includes a member of a syndicate, group, pool, joint venture or other organization which is a “partnership” as defined in this section.

(8) “Partnership” includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any privilege taxable under this article is exercised and which is not within the meaning of this article a trust or estate or corporation. “Partnership” includes a limited liability company which is treated as a partnership for federal income tax purposes.

(9) “Person” or “company” are herein used interchangeably and include any individual, firm, partnership, mining partnership, joint venture, association, corporation, trust or other entity, or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is declared by the context.

(10) “Sale” includes any transfer of the ownership or title to property, whether for money or in exchange for other property or services, or any combination thereof. “Sale” includes a lease of property, whether the transaction be characterized as a rental, lease, hire, bailment or license to use. “Sale” also includes rendering services for a consideration, whether direct or indirect.

(11) “Service” includes all activities engaged in by a person for a consideration which involve the rendering of a service as distinguished from the sale of tangible personal property: Provided, That “service” does not include: (A) Services rendered by an employee to his or her employer under a contract of employment; (B) contracting; or (C) severing or processing natural resources.

(12) “Tax” means any tax imposed by this article and, for purposes of administration and collection of such tax, it includes any interest, additions to tax or penalties imposed with respect thereto under article ten of this chapter.

(13) “Tax commissioner” or “commissioner” means the Tax Commissioner of the State of West Virginia or his or her delegate.

(14) “Taxable year” means the calendar year, or the fiscal year ending during such calendar year, upon the basis of which a tax liability is computed under this article. In the case of a return made under this article, or regulations of the Tax Commissioner, for a fractional part of a year, the term “taxable year” means the period for which such return is made.

(15) “Taxpayer” means any person subject to any tax imposed by this article.

(16) “This code” means the Code of West Virginia, 1931, as amended.

(17) “This state” means the State of West Virginia.

(18) “Withholding agent” means any person required by law to deduct and withhold any tax imposed by this article or under regulations promulgated by the Tax Commissioner.

(c) Specific definitions for producers of natural resources. —

(1) “Barrel of oil” means forty-two U.S. gallons of two hundred thirty-one cubic inches of liquid at a standard temperature of sixty degrees Fahrenheit.

(2) “Coal” means and includes any material composed predominantly of hydrocarbons in a solid state.

(3) “Cubic foot of gas” means the volume of gas contained in one cubic foot at a standard pressure base of fourteen point seventy-three pounds per square inch (absolute) and a standard temperature of sixty degrees Fahrenheit.

(4) “Economic interest” for the purpose of this article is synonymous with the economic interest ownership required by Section 611 of the Internal Revenue Code in effect on December 31, 1985, entitling the taxpayer to a depletion deduction for income tax purposes: Provided, That a person who only receives an arm’s length royalty shall not be considered as having an economic interest.

(5) “Extraction of ores or minerals from the ground” includes extraction by mine owners or operators of ores or minerals from the waste or residue of prior mining only when such extraction is sold.

(6) “Gross value” in the case of natural resources means the market value of the natural resource product, in the immediate vicinity where severed, determined after application of post production processing generally applied by the industry to obtain commercially marketable or usable natural resource products. For all natural resources, “gross value” is to be reported as follows:

(A) For natural resources severed or processed (or both severed and processed) and sold during a reporting period, gross value is the gross proceeds received or receivable by the taxpayer.

(B) In a transaction involving related parties, gross value shall not be less than the fair market value for natural resources of similar grade and quality.

(C) In the absence of a sale, gross value shall be the fair market value for natural resources of similar grade and quality.

(D) If severed natural resources are purchased for the purpose of processing and resale, the gross value is the amount received or receivable during the reporting period reduced by the amount paid or payable to the taxpayer actually severing the natural resource. If natural resources are severed outside the State of West Virginia and brought into the State of West Virginia by the taxpayer for the purpose of processing and sale, the gross value is the amount received or receivable during the reporting period reduced by the fair market value of natural resources of similar grade and quality and in the same condition immediately preceding the processing of the natural resources in this state.

(E) If severed natural resources are purchased for the purpose of processing and consumption, the gross value is the fair market value of processed natural resources of similar grade and quality reduced by the amount paid or payable to the taxpayer actually severing the natural resource. If severed natural resources are severed outside the State of West Virginia and brought into the State of West Virginia by the taxpayer for the purpose of processing and consumption, the gross value is the fair market value of processed natural resources of similar grade and quality reduced by the fair market value of natural resources of similar grade and quality and in the same condition immediately preceding the processing of the natural resources.

(F) In all instances, the gross value shall be reduced by the amount of any federal energy tax imposed upon the taxpayer after June 1, 1993, but shall not be reduced by any state or federal taxes, royalties, sales commissions or any other expense.

(G) For natural gas, gross value is the value of the natural gas at the wellhead immediately preceding transportation and transmission.

(H) For limestone or sandstone quarried or mined, gross value is the value of such stone immediately upon severance from the earth.

(7) “Mining” includes not merely the extraction of ores or minerals from the ground, but also those treatment processes necessary or incidental thereto.

(8) “Natural resources” means all forms of minerals including, but not limited to, rock, stone, limestone, coal, shale, gravel, sand, clay, natural gas, oil and natural gas liquids which are contained in or on the soils or waters of this state and includes standing timber. For the purposes of the severance tax levied in this article, salt produced solely for human consumption as food is not classified as a mineral subject to this tax. 

(9) “Processed” or “processing” as applied to:

(A) Oil and natural gas shall not include any conversion or refining process; and

(B) Limestone or sandstone quarried or mined shall not include any treatment process or transportation after the limestone or sandstone is severed from the earth.

(10) “Related parties” means two or more persons, organizations or businesses owned or controlled directly or indirectly by the same interests. Control exists if a contract or lease, either written or oral, is entered into whereby one party mines or processes natural resources owned or held by another party and the owner or lessor participates in the severing, processing or marketing of the natural resources or receives any value other than an arm’s length passive royalty interest. In the case of related parties, the Tax Commissioner may apportion or allocate the receipts between or among such persons, organizations or businesses if he or she determines that such apportionment or allocation is necessary to more clearly reflect gross value.

(11) “Severing” or “severed” means the physical removal of the natural resources from the earth or waters of this state by any means: Provided, That “severing” or “severed” shall not include the removal of natural gas from underground storage facilities into which the natural gas has been mechanically injected following its initial removal from earth: Provided, however, That “severing” or “severed” oil and natural gas shall not include any separation process of oil or natural gas commonly employed to obtain marketable natural resource products.

(12) “Stock” includes shares in an association, joint-stock company or corporation.

(13) “Taxpayer” means and includes any individual, partnership, joint venture, association, corporation, receiver, trustee, guardian, executor, administrator, fiduciary or representative of any kind engaged in the business of severing or processing (or both severing and processing) natural resources in this state for sale or use. In instances where contracts (either oral or written) are entered into whereby persons, organizations or businesses are engaged in the business of severing or processing (or both severing and processing) a natural resource but do not obtain title to or do not have an economic interest therein, the party who owns the natural resource immediately after its severance or has an economic interest therein is the taxpayer.

(d) Specific definitions for persons providing health care items or services. —

“Behavioral health services” means services provided for the care and treatment of persons with mental illness, mental retardation, developmental disabilities or alcohol or drug abuse problems in an inpatient, residential or outpatient setting, including, but not limited to, habilitative or rehabilitative interventions or services and cooking, cleaning, laundry and personal hygiene services provided for such care: Provided, That gross receipts derived from providing behavioral health services that are included in the provider’s measure of tax under article twenty-seven of this chapter shall not be include in that provider’s measure of tax under this article. The amendment to this definition in the year 2004 is intended to clarify the intent of the Legislature as to the activities that qualify as behavioral health services, and this clarification shall be applied retrospectively to the effective date of the amendment to this section in which the definition of “behavioral health services” was originally provided as enacted during the first extraordinary session of the Legislature in the year 1993.

§11-13A-3. Imposition of tax on privilege of severing coal, limestone or sandstone, or furnishing certain health care services, effective dates therefor; reduction of severance rate for coal mined by underground methods based on seam thickness.

(a) Imposition of tax. — Upon every person exercising the privilege of engaging or continuing within this state in the business of severing, extracting, reducing to possession and producing for sale, profit or commercial use coal, limestone or sandstone, or in the business of furnishing certain health care services, there is hereby levied and shall be collected from every person exercising such privilege an annual privilege tax.

(b) Rate and measure of tax. — Subject to the provisions of subsection  (h) of this section, the tax imposed in subsection (a) of this section is five percent of the gross value of the natural resource produced or the health care service provided, as shown by the gross income derived from the sale or furnishing thereof by the producer or the provider of the health care service, except as otherwise provided in this article: Provided, That effective July 1, 2019, the tax rate imposed by this subsection on the gross value of thermal or steam coal produced shall be reduced incrementally over the next three tax years for a total reduction of two percent by July 1, 2021. That on July 1, 2019, the reduction shall occur at the rate of 35 percent of the two percent reduction, on July 1, 2020, the reduction shall occur at the rate of 65 percent of the two percent reduction, and on July 1, 2021, at the rate of 100 percent of the two percent reduction. In the case of coal, the rate of tax includes the thirty-five one hundredths of one percent additional severance tax on coal imposed by the state for the benefit of counties and municipalities as provided in §11-13A-6 of this code and the additional severance tax on coal imposed by the state for the benefit of coal-producing counties as provided in §11-13A-6a of this code.

(c) "Thermal or steam coal" defined. - For purposes of this section the term "thermal or steam coal" means coal sold for the purpose of generating electricity.

(d) "Certain health care services" defined. — For purposes of this section, the term "certain health care services" means, and is limited to, behavioral health services.

(e) Tax in addition to other taxes. — The tax imposed by this section applies to all persons severing or processing, or both severing and processing, in this state natural resources enumerated in subsection (a) of this section and to all persons providing certain health care services in this state as enumerated in subsection (d) of this section and shall be in addition to all other taxes imposed by law.

(f) Effective date. — This section, as amended in 1993, shall apply to gross proceeds derived after May 31, 1993. The language of this section, as in effect on January 1, 1993, shall apply to gross proceeds derived prior to June 1, 1993 and, with respect to such gross proceeds, shall be fully and completely preserved.

(g) Reduction of severance tax rate. — For tax years beginning after the effective date of this subsection, any person exercising the privilege of engaging within this state in the business of severing coal for the purposes provided in subsection (a) of this section shall be allowed a reduced rate of tax on coal mined by underground methods in accordance with the following:

(1) For coal mined by underground methods from seams with an average thickness of 37 inches to 45 inches, the tax imposed in subsection (a) of this section shall be two percent of the gross value of the coal produced. For coal mined by underground methods from seams with an average thickness of less than 37 inches, the tax imposed in subsection (a) of this section shall be one percent of the gross value of the coal produced. Gross value is determined from the sale of the mined coal by the producer. This rate of tax includes the thirty-five one hundredths of one percent additional severance tax imposed by the state for the benefit of counties and municipalities as provided in §11-13A-6 of this code.

(2) This reduced rate of tax applies to any new underground mine producing coal after the effective date of this subsection, from seams of less than 45 inches in average thickness or any existing mine that has not produced coal from seams 45 inches or less in thickness in the 180 days immediately preceding the effective date of this subsection.

(3) The seam thickness shall be based on the weighted average isopach mapping of actual coal thickness by mine as certified by a professional engineer.

(h)(1) Termination and expiration of the behavioral health severance and business privilege tax. — The tax imposed upon providers of health care services under the provisions of this article shall expire, terminate and cease to be imposed with respect to privileges exercised on or after July 1, 2016. Expiration of the tax as provided in this subsection does not relieve any person from payment of any tax imposed with respect to privileges exercised before the expiration date.

(2) Refunds made. — The Tax Commissioner shall issue a requisition on the Treasury for any amount finally, administratively or judicially determined to be an overpayment of the tax terminated under this subsection. The Auditor shall issue a warrant on the Treasurer for any refund requisitioned under this subsection payable to the taxpayer entitled to the refund, and the Treasurer shall pay the warrant out of the fund into which the amount refunded was originally paid.

(i) Termination and expiration of the privilege tax on limestone or sandstone. — The taxes imposed under this section for persons exercising the privilege of engaging or continuing within this state in the business of severing, extracting, reducing to possession and producing for sale, profit or commercial use limestone or sandstone shall cease, terminate and be of no further force or effect on and after July 1, 2019. Termination of the taxes imposed under this section do not relieve any person of any liability or duty to pay tax imposed under this article with respect to privileges exercised before the effective date of the termination.

§11-13A-3a. Imposition of tax on privilege of severing natural gas or oil.

(a) Imposition of tax. — For the privilege of engaging or continuing within this state in the business of severing natural gas or oil for sale, profit or commercial use, there is  levied and shall be collected from every person exercising  the privilege an annual privilege tax at the rate and measure provided in subsection (b) of this section: Provided, That effective for all taxable periods beginning on or after January 1, 2000, there is an exemption from the imposition of the tax provided in this article on the following: (1) Free natural gas provided to any surface owner; (2) natural gas produced from any well which produced an average of less than 5,000 cubic feet of natural gas per day during the calendar year immediately preceding a given taxable period; (3) oil produced from any oil well which produced an average of less than one-half barrel of oil per day during the calendar year immediately preceding a given taxable period; and (4) for a maximum period of 10 years, all natural gas or oil produced from any well which has not produced marketable quantities of natural gas or oil for five consecutive years immediately preceding the year in which a well is placed back into production and thereafter produces marketable quantities of natural gas or oil.

(b) Rate and measure of tax. — The tax imposed in subsection (a) of this section  is five percent of the gross value of the natural gas or oil produced by the producer as shown by the gross proceeds derived from the sale thereof by the producer, except as otherwise provided in this article: Provided, That effective for taxable periods beginning on or after January 1, 2020:

(1) For all natural gas produced from any well which produced an average in excess of 60,000 cubic feet of natural gas per day during the calendar year immediately preceding a given taxable year, and for oil produced from any well which produced an average in excess of 10 barrels of oil per day, during the calendar year immediately preceding the beginning date of a given taxable year, the rate of tax is five percent of the gross value of the natural gas or oil produced as shown by the gross proceeds derived from the sale thereof by the producer;

(2) For all natural gas produced from any well, excluding wells utilizing horizontal drilling techniques targeting shale formations, which produced an average between 5,000 cubic feet of natural gas per day and 60,000 cubic feet of natural gas per day during the calendar year immediately preceding the beginning date of a given taxable year, and for oil produced from any well, excluding wells utilizing horizontal drilling techniques targeting shale formations, which produced an average between one-half barrel per day and 10 barrels per day, during the calendar year immediately preceding the beginning date of a given taxable year, the rate of tax is two and five tenths percent of the gross value of the natural gas or oil produced as shown by the gross proceeds derived from the sale thereof by the producer; and

(3) For all natural gas produced from wells utilizing horizontal drilling techniques targeting shale formations, which produced an average between 5,000 cubic feet of natural gas per day and 60,000 cubic feet of natural gas per day during the calendar year immediately preceding the beginning date of a given taxable year, and for oil produced from wells utilizing horizontal drilling techniques targeting shale formations, which produced an average between one-half barrel per day and 10 barrels per day, during the calendar year immediately preceding the beginning date of a given taxable year, the rate of tax is five percent of the gross value of the natural gas or oil produced as shown by the gross proceeds derived from the sale thereof by the producer.

(c) Tax in addition to other taxes. — The tax imposed by this section  applies to all persons severing gas or oil in this state, and  is in addition to all other taxes imposed by law.

 (d) For purposes of this section, in determining the average amount of production of gas and oil in any given calendar year, a taxpayer must calculate the actual production of such well in the calendar year and divide the same by the number of days the well was in operation and producing gas or oil in such calendar year.

(e) After the dedication in §11-13A-5a is made, the remaining proceeds collected from the tax imposed at the rate prescribed under subdivision (2), subsection (b) of this section are dedicated to the Oil and Gas Abandoned Well Plugging Fund created under §22-6-29a of this code: Provided, That if on June 1, 2023, or on June 1 of any year thereafter, there exists in the Oil and Gas Abandoned Well Plugging Fund an amount equal to or exceeding the sum of $6 million then the special rate of tax imposed under subdivision (2), subsection (b) of this section is reduced to zero for the taxable year beginning on and after the next succeeding January 1. The Tax Commissioner shall issue an Administrative Notice by July 1 of each year indicating the balance in the fund as of the immediately preceding June 1 and the rate of tax on wells pursuant to this subsection.

§11-13A-3b. Imposition of tax on privilege of severing timber.

(a) Imposition of tax. — For the privilege of engaging or continuing within this state in the business of severing timber for sale, profit or commercial use, there is hereby levied and shall be collected from every person exercising such privilege an annual privilege tax.

(b) Rate and measure of tax. — The tax imposed in subsection (a) of this section shall be three and twenty-two hundredths percent of the gross value of the timber produced, as shown by the gross proceeds derived from the sale thereof by the producer, except as otherwise provided in this article: Provided, That as to timber produced after December 31, 2006 the rate of the tax imposed in subsection (a) of this section shall be one and twenty-two hundredths percent of the gross value of the timber produced, as shown by the gross proceeds derived from the sale thereof by the producer, except as otherwise provided in this article.

(c) Tax in addition to other taxes. — The tax imposed by this section shall apply to all persons severing timber in this state and shall be in addition to all other taxes imposed by law.

(d) Discontinuation and reestablishment of tax. — Beginning in the tax year 2010 and continuing until June 30, 2016, the tax imposed by this section is discontinued. On and after July 1, 2016, the tax imposed by this section is reestablished and is imposed and shall apply to all persons severing timber in this state at the rate of one and fifty hundredths percent of the gross value of the timber produced, as shown by the gross proceeds derived from the sale thereof by the producer, except as otherwise provided in this article. (e) Termination of taxes imposed by this section. – The taxes imposed under this section shall cease, terminate and be of no further force or effect on and after July 1, 2019. Termination of the taxes imposed under this section shall not relieve any person of any liability or duty to pay tax imposed under this article with respect to privileges exercised before the effective date of such termination.

§11-13A-3c. Imposition of tax on privilege of severing other natural resources.

(a) Imposition of tax. — For the privilege of engaging or continuing within this state in the business of severing, extracting, reducing to possession and producing for sale, profit or commercial use any other natural resource product or product not taxed under section three, three-a, three-b or four of this article, there is hereby levied and shall be collected from every person exercising this privilege an annual privilege tax.

(b) Rate and measure of tax. — The tax imposed in subsection (a) of this section shall be four percent of the gross value of the natural resource produced, as shown by the gross proceeds derived from the sale thereof by producer, except as otherwise provided in this article: Provided, That beginning July 1, 1993, the tax imposed by this section shall be levied and collected at the rate of four and one-half percent, and beginning July 1, 1994, the tax imposed by this section shall be levied and collected at the rate of five percent: Provided, however, That there is an exemption from the imposition of the tax provided for in this article for 9 years beginning July 1, 2023, for severing, extracting, reducing to possession and producing for sale, profit or commercial use rare earth elements and critical minerals. For the purposes of this section, "rare earth elements" (also known as rare earth metals or rare earth oxides) are only yttrium, lanthanum, cerium, praseodymium, neodymium, promethium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium, lutetium, and scandium, and "critical minerals" are only aluminum, antimony, arsenic, barite, beryllium, bismuth, cesium, chromium, cobalt, fluorspar, gallium, germanium, graphite, hafnium, indium, iridium, lithium, magnesium, manganese, nickel, niobium, palladium, platinum, rhodium, rubidium, ruthenium, tantalum, tellurium, tin, titanium, tungsten, vanadium, zinc, zirconium, uranium, osmium, strontium, rhenium, potash, and bauxite.

(c) Tax in addition to other taxes. — The tax imposed by this section shall apply to all persons severing other natural resources in this state, and shall be in addition to all other taxes imposed by law.

(d) Effective date. — This section, as amended in the year 1993, shall apply to gross proceeds derived after May 31 of such year. The language of section three of this article, as in effect on January 1, of such year, shall apply to gross proceeds derived prior to June 1 of such year and, with respect to such gross proceeds, shall be fully and completely preserved.

§11-13A-3d. Imposition of tax on privilege of severing coalbed methane.

(a) The Legislature hereby finds and declares the following:

(1) That coalbed methane is underdeveloped and an under-utilized resource within this state which, where practicable, should be captured and not be vented or wasted;

(2) The health and safety of persons engaged in coal mining is a paramount concern to the state. The Legislature intends to preserve coal seams for future safe mining, to facilitate the expeditious, safe evacuation of coalbed methane from the coalbeds of this state, and to ensure the safety of miners by encouraging the advance removal of coalbed methane;

(3) The United States environmental protection agency's coalbed methane outreach program encourages United States coal mines in the United States to remove and use methane that is otherwise wasted during mining. These projects have important economic benefits for the mines and their local economies while they also reduce emissions of methane; and

(4) The initial costs of development of coalbed methane wells can be large in comparison to conventional wells and deoxygenation and water removal increase development expenditures.

The Legislature, therefore, concludes that an incentive to coalbed methane development should be implemented to encourage capture of methane gas that would otherwise be vented to the atmosphere.

(b) Imposition of tax. –- In lieu of the annual privilege tax imposed on the severance of natural gas or oil pursuant to section three-a, article thirteen-a, for the privilege of engaging or continuing within this state in the business of severing coalbed methane for sale, profit or commercial use, there is hereby levied and shall be collected from every person exercising such privilege an annual privilege tax: Provided, That effective for taxable years beginning on or after January 1, 2001, there is an exemption from the imposition of the tax provided for in this article for a maximum period of five years for all coalbed methane produced from any coalbed methane well placed in service after January 1, 2000. For purposes of this section, the terms "coalbed methane" and "coalbed methane well" have the meaning ascribed to them in section two, article twenty-one, chapter twenty-two of this code. The exemption from tax provided by this section is applicable to any coalbed methane well placed in service before January 1, 2009, subject to the provisions of subsection (f) of this section.

(c) Rate and measure of tax. -- The tax imposed on subsection (b) of this section is five percent of the gross value of the coalbed methane produced, as shown by the gross proceeds derived from the sale thereof by the producer, except as otherwise provided in this article.

(d) Tax in addition to other taxes. -- The tax imposed by this section applies to all persons severing coalbed methane in this state, and is in addition to all other taxes imposed by law.

(e) Except as specifically provided in this section, application of the provisions of this article apply to coalbed methane in the same manner and with like effect as the provisions apply to natural gas.

(f) Notwithstanding any other provision of this code to the contrary, on and after January 1, 2009, the exemption from the tax on the privilege of severing coalbed methane created in this section will no longer be applicable except that the privilege tax shall not be collected on coalbed methane produced from any coalbed methane well for the remainder of the five-year exemption for any well that was placed in service, including the commencement of actual drilling of the well, before January 1, 2009.

(g) Subject to the exceptions set forth in this section and article thirteen-v of this chapter, on and after January 1, 2009, coalbed methane and methane produced from or by a coalbed methane well is taxable as natural gas for purposes of the taxes imposed by this article and the taxes imposed by article thirteen-v of this chapter.

(h) The Tax Commissioner shall promulgate emergency and legislative rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, as necessary to effectuate the purposes of this article.

§11-13A-3e. Imposition of tax on privilege of extracting and recovering material from refuse, gob piles or other sources of waste coal to produce coal.

(a) The Legislature hereby finds and declares the following:

(1) That some mining operations in this state process coal to create a saleable clean coal product;

(2) That the by-product, waste or residue created from processing coal is commonly deposited in what are known as refuse or gob piles;

(3) That, as a result of technological developments and other factors, the material contained in some refuse or gob piles located in this state can be recovered and further processed to produce saleable clean coal; and

(4) That, under the existing laws of this state, coal produced from processing material contained in refuse, gob piles, slurry ponds, pond fines or other sources of waste coal would be subject to the annual privilege tax imposed on the severance of coal pursuant to section three of this article and the minimum severance tax imposed by section three, article twelve-b of this chapter.

Based on the findings in this subsection, the Legislature concludes that an incentive to extracting and recovering material contained in refuse, gob piles and other sources of waste coal located in this state and subsequently processing, washing and preparing this material to produce coal should be implemented to encourage the production of this coal from refuse or gob piles located in this state.

(b) Imposition of tax. -– In lieu of: (i) The annual privilege tax imposed on the severance of coal imposed by section three of this article; (ii) the additional tax on severance, extraction and production of coal imposed by section six of this article; and (iii) the minimum severance tax imposed by section three, article twelve-b of this chapter for the privilege of engaging or continuing within this state in the business of extracting and recovering material from a refuse, gob pile or other sources of waste coal and subsequently processing, washing and preparing this extracted or recovered material to produce coal for sale, profit or commercial use, there is hereby levied and shall be collected from every person exercising that privilege an annual privilege tax.

(c) Rate and measure of tax. -– The tax imposed in subsection (b) of this section is two and one-half percent of the gross value of the coal produced, as shown by the gross proceeds derived from the sale of the coal by the producer, except as otherwise provided in this article.

(d) Tax in addition to other taxes. -– The tax imposed by this section applies to all persons extracting and recovering material from refuse, gob piles or other sources of waste coal located in this state and subsequently processing, washing and preparing this extracted and recovered material to produce coal for sale, profit or commercial use and shall be in addition to all other taxes imposed by law: Provided, That the tax imposed by this section is in lieu of the tax imposed by sections three and six of this article and section three, article twelve-b of this chapter.

(e) Exemption. -– The tax imposed in subsection (b) of this section shall not apply to any electrical power cogeneration plant burning material from its wholly owned refuse or gob pile.

(f) Dedication of taxes collected, creation of fund. -–

(1) There is continued in the State Treasury a fund entitled the "waste coal-producing counties fund" which shall be a revolving fund that shall carry over each fiscal year. The taxes collected under the provisions of this section shall be deposited in the waste coal-producing counties fund and are dedicated to the county commissions of the counties in which the refuse, gob piles or other sources of waste coal are located from which taxable waste coal production has occurred during the year for use in economic development and infrastructure improvements. The economic and infrastructure projects are to be in accordance with the rules promulgated under the synthetic fuel-producing counties grant fund program, as determined by the director of the West Virginia Development Office: Provided, That the county shall use ninety percent of the funds for infrastructure improvement and ten percent of the funds for economic development.

(2) Moneys in the waste coal-producing counties fund shall be distributed by the State Treasurer annually to the counties in which the refuse, gob piles or other sources of waste coal are located, from which taxable waste coal production has occurred during the year, in an amount prorated to the number of tons of taxable waste coal produced in each county during the preceding year. The distribution shall be paid separate from any other payment of moneys to the county by the treasurer. For purposes of this subdivision, the term "ton" means two thousand pounds.

(3) The office of chief inspector shall annually determine that counties' expenditures of moneys distributed under this section is in compliance with the requirements of this section.

§11-13A-4. Treatment processes as production.

(a) Treatment processes considered as mining. -- The following treatment processes (and the treatment processes necessary or incidental thereto) when applied by the mine owner or operator to natural resources mined in this state shall be considered as mining and part of the privilege taxed under this article.

(1) Coal. -- In the case of coal: Cleaning, breaking, sizing, dust allaying, treating to prevent freezing and loading for shipment.

(2) Minerals customarily sold in crude form. -- In the case of other minerals which are customarily sold in crude form: Sorting, concentrating, sintering and substantially equivalent processes to bring them to shipping grade and form, and loading for shipment.

(3) Minerals not customarily sold in crude form. -- In the case of other minerals which are not customarily sold in the form of the crude mineral products: Crushing, grinding and beneficiation by concentration (gravity, flotation, amalgamation or electrostatic or magnetic), cyanidation, leaching, crystallization, precipitation (but not including electrolytic deposition, roasting, thermal or electric smelting or refining), or substantially equivalent processes or combinations of processes used in the separation or extraction of the product or products from the ore or the mineral or minerals from other material from the mine or other natural deposit.

(4) Oil shale. -- In the case of oil shale: Extraction from the ground, crushing, loading into the retort and retorting, but not hydrogenation, refining or any other process subsequent to retorting; and

(5) Other. -- Any other treatment process provided for in a legislative rule prescribed by the Tax Commissioner which, with respect to the particular ore or mineral, is not inconsistent with the preceding subdivisions of this subsection (a).

(b) Treatment processes not considered as mining. -- Unless such processes are otherwise provided for in subsection (a), or are necessary or incidental to processes provided for in subsection (a), the following treatment processes shall not be considered as "mining": Electrolytic deposition, roasting, calcining, thermal or electric smelting, refining, polishing, fine pulverization, blending with other materials, treatment effecting a chemical change, thermal action and molding or shaping.

(c) Treatment processes considered part of production of oil, natural gas and natural gas liquids. -- The privileges of severing and producing oil and natural gas shall not include any conversion or refining process.

(d) Timber production privilege. -- The privilege of severing and producing timber shall end once the tree is severed and delimbed.

(e) Limestone and sandstone quarried or mined production privilege. -- The privilege of severing and producing limestone and sandstone by quarrying or mining shall end once the limestone or sandstone is severed from the earth.

§11-13A-5. Oil and gas operating unit.

(a) For purposes of the production of oil classification and the production of natural gas classification, as set forth in this article, multiple coowners of oil or natural gas, in place, lessees thereof, or others being vested with title and ownership to part or all of the oil and gas, as personal property, immediately after its severance, extraction, reduction to possession and production (except royalty recipients in kind) shall be deemed to be a "group or combination acting as a unit" and one "person" as defined in section two of this article, if not otherwise defined therein, whenever engaged in the producing of oil or natural gas through common use (by joint or separately executed contracts) of the same independent contract driller or operator's services; and notwithstanding provisions of private contracts for separate deposit of gross receipts in separate members' accounts or for members of such group or combination to take in kind any proportionate part of such natural resources.

(b) Lessees, sublessees or other denominated lessees are considered to be producers of all of the oil or natural gas produced, regardless of any payment, in kind, to lessors, sublessors or other denominated lessors of a part of such natural resources as rents or royalties.

§11-13A-5a. Dedication of ten percent of oil and gas severance tax for benefit of counties and municipalities and of three fourths of one percent of oil and gas severance tax for the benefit of the Office of Oil and Gas in the Department of Environmental Protection; distribution of major portion of such dedicated tax to oil and gas producing counties; distribution of minor portion of such dedicated tax to all counties and municipalities; reports; rules; special funds in the office of state treasurer; methods and formulae for distribution of such dedicated tax; expenditure of funds by counties and municipalities for public purposes; and requiring special county and municipal budgets and reports thereon.

(a) Effective July 1, 1996, five percent of the tax attributable to the severance of oil and gas imposed by §11-13A-3a of this code is hereby dedicated for the use and benefit of counties and municipalities within this state and shall be distributed to the counties and municipalities as provided in this section. Effective July 1, 1997, and thereafter, ten percent of the tax attributable to the severance of oil and gas imposed by section three-a of this article is hereby dedicated for the use and benefit of counties and municipalities within this state and shall be distributed to the counties and municipalities as provided in this section. Effective July 1, 2023, and every year thereafter, three fourths of one percent of the tax attributable to the severance of oil and gas imposed by §11-13A-3a of this code, not to exceed $1,200,000, is hereby dedicated for the use and benefit of regulating the oil and gas industry by the Office of Oil and Gas in the Department of Environmental Protection and shall be deposited in the Oil and Gas Operating Permit and Processing Fund to ensure that the Office of Oil and Gas has sufficient funding to support its regulatory mission of ensuring the safety of the natural environment of this state.

(b) Seventy-five percent of the dedicated tax for counties and municipalities shall be distributed by the State Treasurer in the manner specified in this section to the various counties of this state in which the oil and gas upon which this additional tax is imposed was located at the time it was removed from the ground. Those counties are referred to in this section as the "oil and gas producing counties". The remaining twenty-five percent of the net proceeds of this additional tax on oil and gas shall be distributed among all the counties and municipalities of this state in the manner specified in this section.

(c) The Tax Commissioner is hereby granted plenary power and authority to promulgate reasonable rules requiring the furnishing by oil and gas producers of such additional information as may be necessary to compute the allocation required under the provisions of subsection (f) of this section. The Tax Commissioner is also hereby granted plenary power and authority to promulgate such other reasonable rules as may be necessary to implement the provisions of this section.

(d) In order to provide a procedure for the distribution of seventy-five percent of the dedicated tax for counties and municipalities on oil and gas to the oil and gas producing counties, the special fund known as the oil and gas county revenue fund established in State Treasurer's office by chapter two hundred forty-two, acts of the Legislature, 1995 regular session, as amended and reenacted in the subsequent act of the Legislature, is hereby continued. In order to provide a procedure for the distribution of the remaining twenty-five percent of the dedicated tax for counties and municipalities on oil and gas to all counties and municipalities of the state, without regard to oil and gas having been produced in those counties or municipalities, the special fund known as the all counties and municipalities revenue fund established in State Treasurer's office by chapter two hundred forty-two, acts of the Legislature, 1995 regular session, as amended and reenacted in the subsequent act of the Legislature, is hereby redesignated as the "all counties and municipalities oil and gas revenue fund" and is hereby continued.

Seventy-five percent of the dedicated tax for counties and municipalities on oil and gas shall be deposited in the oil and gas county revenue fund and twenty-five percent of this dedicated tax on oil and gas shall be deposited in the all counties and municipalities oil and gas revenue fund, from time to time, as the proceeds are received by the Tax Commissioner. The moneys in the funds shall be distributed to the respective counties and municipalities entitled to the moneys in the manner set forth in subsection (e) of this section.

(e) The moneys in the oil and gas county revenue fund and the moneys in the all counties and municipalities oil and gas revenue fund shall be allocated among and distributed annually to the counties and municipalities entitled to the moneys by the State Treasurer in the manner specified in this section. On or before each distribution date, the State Treasurer shall determine the total amount of moneys in each fund which will be available for distribution to the respective counties and municipalities entitled to the moneys on that distribution date. The amount to which an oil and gas producing county is entitled from the oil and gas county revenue fund shall be determined in accordance with subsection (f) of this section, and the amount to which every county and municipality shall be entitled from the all counties and municipalities oil and gas revenue fund shall be determined in accordance with subsection (g) of this section. After determining, as set forth in subsections (f) and (g) of this section, the amount each county and municipality is entitled to receive from the respective fund or funds, a warrant of the State Auditor for the sum due to the county or municipality shall issue and a check drawn thereon making payment of the sum shall thereafter be distributed to the county or municipality.

(f) The amount to which an oil and gas producing county is entitled from the oil and gas county revenue fund shall be determined by:

(1) In the case of moneys derived from tax on the severance of gas:

(A) Dividing the total amount of moneys in the fund derived from tax on the severance of gas then available for distribution by the total volume of cubic feet of gas extracted in this state during the preceding year; and

(B) Multiplying the quotient thus obtained by the number of cubic feet of gas taken from the ground in the county during the preceding year; and

(2) In the case of moneys derived from tax on the severance of oil:

(A) Dividing the total amount of moneys in the fund derived from tax on the severance of oil then available for distribution by the total number of barrels of oil extracted in this state during the preceding year; and

(B) Multiplying the quotient thus obtained by the number of barrels of oil taken from the ground in the county during the preceding year.

(g) The amount to which each county and municipality is entitled from the all counties and municipalities oil and gas revenue fund shall be determined in accordance with the provisions of this subsection. For purposes of this subsection "population" means the population as determined by the most recent decennial census taken under the authority of the United States:

(1) The State Treasurer shall first apportion the total amount of moneys available in the all counties and municipalities oil and gas revenue fund by multiplying the total amount in the fund by the percentage which the population of each county bears to the total population of the state. The amount thus apportioned for each county is the county's "base share".

(2) Each county's base share shall then be subdivided into two portions. One portion is determined by multiplying the base share by that percentage which the total population of all unincorporated areas within the county bears to the total population of the county, and the other portion is determined by multiplying the base share by that percentage which the total population of all municipalities within the county bears to the total population of the county. The former portion shall be paid to the county and the latter portion shall be the "municipalities' portion" of the county's base share. The percentage of the latter portion to which each municipality in the county is entitled shall be determined by multiplying the total of the latter portion by the percentage which the population of each municipality within the county bears to the total population of all municipalities within the county.

(h) Moneys distributed to any county or municipality under the provisions of this section, from either or both special funds, shall be deposited in the county or municipal general fund and may be expended by the county commission or governing body of the municipality for such purposes as the county commission or governing body shall determine to be in the best interest of its respective county or municipality: Provided, That in counties with population in excess of two hundred thousand, at least seventy-five percent of the funds received from the oil and gas county revenue fund shall be apportioned to and expended within the oil and gas producing area or areas of the county, the oil and gas producing areas of each county to be determined generally by the State Tax Commissioner: Provided, however, That the moneys distributed to any county or municipality under the provisions of this section shall not be budgeted for personal services in an amount to exceed one fourth of the total amount of the moneys.

(i) On or before March 28, 1997, and each March 28 thereafter, each county commission or governing body of a municipality receiving any such moneys shall submit to the Tax Commissioner on forms provided by the Tax Commissioner a special budget, detailing how the moneys are to be spent during the subsequent fiscal year. The budget shall be followed in expending the moneys unless a subsequent budget is approved by the State Tax Commissioner. All unexpended balances remaining in the county or municipality general fund at the close of a fiscal year shall remain in the General Fund and may be expended by the county or municipality without restriction.

(j) On or before December 15, 1996, and each December 15 thereafter, the Tax Commissioner shall deliver to the clerk of the Senate and the Clerk of the House of Delegates a consolidated report of the budgets, created by subsection (i) of this section, for all county commissions and municipalities as of July 15, of the current year.

(k) The State Tax Commissioner shall retain for the benefit of the state from the dedicated tax attributable to the severance of oil and gas the amount of $35,000 annually as a fee for the administration of the additional tax by the Tax Commissioner.

§11-13A-5b. Creation and cessation of West Virginia Future Fund; legislative intent; calculation of deposits from excess severance tax revenues; permissible uses of investment income and limitations on expenditures; definitions.

(a) There is hereby created in the State Treasury a special revenue account, designated the West Virginia Future Fund, which is an interest-bearing account and may be invested by the West Virginia Investment Management Board in the manner permitted by the provisions of §12-6-1 et seq. of this code, with the investment income to be credited to the fund and deposited in the special revenue account.

(b) The Legislature declares its intention to use the fund as a means of conserving a portion of the state’s revenue derived from the increased revenue proceeds received by the state as a result of any mineral production as well as other funding sources as the Legislature may designate in order to meet future needs. The principal of the fund shall remain inviolate and no portion of the principal may be appropriated, expended or encumbered by the Legislature or any official of the state. Only the investment income of this fund may be appropriated and expended: Provided, That no more than the average net investment return for the immediately preceding five fiscal years may be appropriated or expended in any one fiscal year.

(c) Notwithstanding any provision of this code to the contrary, for the fiscal year beginning July 1, 2014, and each year thereafter, the secretary of revenue shall cause to be deposited in this fund three percent of the annual severance tax revenue which would otherwise be deposited into the General Revenue Fund which is attributable to the severance of coal, limestone, sandstone, natural gas and oil and collected and received pursuant to the provisions of sections §11-13A-3 and §11-13A-3a of this code: Provided, That these deposits shall only be made during fiscal years within which the balance of the Revenue Shortfall Reserve Fund equals or exceeds 13 percent of the state’s General Revenue Fund budget for the fiscal year just ended as determined within 60 days of the end of that prior fiscal year as provided by subsection (b), §11B-2-20 of this code: Provided, however, That these deposits shall not be made in any fiscal year in which the Governor’s General Revenue Fund estimate relies on transfers from the Revenue Shortfall Reserve Fund: Provided further, That these deposits shall not be made in any fiscal year for which mid-year spending reductions, hiring freezes, mid-year decreases in appropriations or transfers from the Revenue Shortfall Reserve Fund are necessitated due to revenue shortfalls or would be necessitated if the deposits were to be made: And provided further, That amounts that may be deposited into the fund in error or found later to be subject to these limitations shall be redeposited into the General Revenue Fund. The Legislature may, by general appropriation or by designation of other funding sources, deposit into the fund additional moneys as it considers appropriate.

(d) In order to maximize the value of the fund, no money from the fund may be expended or appropriated until fiscal year 2020 and thereafter the Legislature may appropriate, subject to the limitations provided in this section, from the fund solely for enhancing education and workforce development; economic development and diversification; infrastructure improvements; and tax relief measures for the benefit of the citizens and businesses of the State of West Virginia.

(e) Cessation of the West Virginia Future Fund. —

(1) On July 1, 2023, the West Virginia Future Fund and any duties regarding its creation, continuation, and expenditure shall be eliminated.

(2) Any funds held in the West Virginia Future Fund on July 1, 2023, shall be transferred into the General Revenue Fund of this state.

 (f) For purposes of this section:

(1) "Economic development and diversification" means fostering economic growth and development in the state, including commercial, industrial, community, cultural or historical improvements; or preservation or other proper purposes.

(2) "Infrastructure improvements" means fostering infrastructure improvements including, but not limited to, post-mining land use, water or wastewater facilities or a part thereof, storm water systems, steam, gas, telephone and telecommunications, broadband development, electric lines and installations, roads, bridges, railroad spurs, drainage and flood control facilities, industrial park development or buildings that promote job creation and retention.

(3) "Tax relief" means reducing the tax responsibility of citizens and businesses located in the State of West Virginia, including, but not limited to, increasing the Homestead Exemption and reducing or eliminating the ad valorem property tax on inventory and equipment held for commercial or industrial use.

§11-13A-6. Additional tax on the severance, extraction and production of coal; dedication of additional tax for benefit of counties and municipalities; distribution of major portion of such additional tax to coal-producing counties; distribution of minor portion of such additional tax to all counties and municipalities; reports; rules; special funds in office of State Treasurer; method and formulas for distribution of such additional tax; expenditure of funds by counties and municipalities for public purposes; special funds in counties and municipalities; and requiring special county and municipal budgets and reports thereon.

(a) Additional coal severance tax. — Upon every person exercising the privilege of engaging or continuing within this state in the business of severing coal, or preparing coal (or both severing and preparing coal), for sale, profit or commercial use, there is hereby imposed an additional severance tax, the amount of which shall be equal to the value of the coal severed or prepared (or both severed and prepared), against which the tax imposed by section three of this article is measured as shown by the gross proceeds derived from the sale of the coal by the producer, multiplied by thirty-five one hundredths of one percent. The tax imposed by this subsection is in addition to the tax imposed by section three of this article, and this additional tax is referred to in this section as the "additional tax on coal".

(b) This additional tax on coal is imposed pursuant to the provisions of section six-a, article ten of the West Virginia Constitution. Seventy-five percent of the net proceeds of this additional tax on coal shall be distributed by the State Treasurer in the manner specified in this section to the various counties of this state in which the coal upon which this additional tax is imposed was located at the time it was severed from the ground. Those counties are referred to in this section as the "coal-producing counties". The remaining twenty-five percent of the net proceeds of this additional tax on coal shall be distributed among all the counties and municipalities of this state in the manner specified in this section.

(c) The additional tax on coal shall be due and payable, reported and remitted as elsewhere provided in this article for the tax imposed by section three of this article, and all of the enforcement and other provisions of this article shall apply to the additional tax. In addition to the reports and other information required under the provisions of this article and the tonnage reports required to be filed under the provisions of section seventy-seven, article two, chapter twenty-two-a of this code, the Tax Commissioner is hereby granted plenary power and authority to promulgate reasonable rules requiring the furnishing by producers of such additional information as may be necessary to compute the allocation required under the provisions of subsection (f) of this section. The Tax Commissioner is also hereby granted plenary power and authority to promulgate such other reasonable rules as may be necessary to implement the provisions of this section: Provided, That notwithstanding any language contained in this code to the contrary, the gross amount of additional tax on coal collected under this article shall be paid over and distributed without the application of any credits against the tax imposed by this section.

(d) In order to provide a procedure for the distribution of seventy-five percent of the net proceeds of the additional tax on coal to the coal-producing counties, the special fund known as the "county coal revenue fund" established in the State Treasurer’s office by chapter one hundred sixty-two, acts of the Legislature, 1985 regular session, as amended and reenacted in subsequent acts of the Legislature, is hereby continued. In order to provide a procedure for the distribution of the remaining twenty-five percent of the net proceeds of the additional tax on coal to all counties and municipalities of the state, without regard to coal having been produced therein, the special fund known as the "all counties and municipalities revenue fund" established in the State Treasurer’s office by chapter one hundred sixty-two, acts of the Legislature, 1985 regular session, as amended and reenacted in subsequent acts of the Legislature, is hereby redesignated as the "all counties and municipalities coal revenue fund" and is hereby continued.

Seventy-five percent of the net proceeds of such additional tax on coal shall be deposited in the county coal revenue fund and twenty-five percent of the net proceeds shall be deposited in the all counties and municipalities coal revenue fund, from time to time, as the proceeds are received by the Tax Commissioner. The moneys in the funds shall be distributed to the respective counties and municipalities entitled to the moneys in the manner set forth in subsection (e) of this section.

(e) The moneys in the county coal revenue fund and the moneys in the all counties and municipalities coal revenue fund shall be allocated among and distributed quarterly to the counties and municipalities entitled to the moneys by the State Treasurer in the manner specified in this section. On or before each distribution date, the State Treasurer shall determine the total amount of moneys in each fund which will be available for distribution to the respective counties and municipalities entitled to the moneys on that distribution date. The amount to which a coal-producing county is entitled from the county coal revenue fund shall be determined in accordance with subsection (f) of this section, and the amount to which every county and municipality is entitled from the all counties and municipalities coal revenue fund shall be determined in accordance with subsection (g) of this section. After determining as set forth in subsection (f) and subsection (g) of this section the amount each county and municipality is entitled to receive from the respective fund or funds, a warrant of the State Auditor for the sum due to each county or municipality shall issue and a check drawn thereon making payment of such amount shall thereafter be distributed to each such county or municipality.

(f) The amount to which a coal-producing county is entitled from the county coal revenue fund shall be determined by: (1) Dividing the total amount of moneys in the fund then available for distribution by the total number of tons of coal mined in this state during the preceding quarter; and (2) multiplying the quotient thus obtained by the number of tons of coal removed from the ground in the county during the preceding quarter.

(g) The amount to which each county and municipality is entitled from the all counties and municipalities coal revenue fund shall be determined in accordance with the provisions of this subsection. For purposes of this subsection "population" means the population as determined by the most recent decennial census taken under the authority of the United States:

(1) The treasurer shall first apportion the total amount of moneys available in the all counties and municipalities coal revenue fund by multiplying the total amount in the fund by the percentage which the population of each county bears to the total population of the state. The amount thus apportioned for each county is the county’s "base share".

(2) Each county’s base share shall then be subdivided into two portions. One portion is determined by multiplying the base share by that percentage which the total population of all unincorporated areas within the county bears to the total population of the county, and the other portion is determined by multiplying the base share by that percentage which the total population of all municipalities within the county bears to the total population of the county. The former portion shall be paid to the county and the latter portion is the "municipalities" portion" of the county’s base share. The percentage of the latter portion to which each municipality in the county is entitled shall be determined by multiplying the total of the latter portion by the percentage which the population of each municipality within the county bears to the total population of all municipalities within the county.

(h) All counties and municipalities shall create a "coal severance tax revenue fund" which shall be the depository for moneys distributed to any county or municipality under the provisions of this section, from either or both special funds. Moneys in the coal severance tax revenue fund, in compliance with subsection (i) of this section, may be expended by the county commission or governing body of the municipality for such public purposes as the county commission or governing body shall determine to be in the best interest of the people of its respective county or municipality.

(i) All unexpended balances remaining in coal severance tax revenue fund at the close of a fiscal year shall be reappropriated to the budget of the county commission or governing body for the subsequent fiscal year. The reappropriation shall be entered as an amendment to the new budget and submitted to the Tax Commissioner on or before July 15, of the current budget year.

 (j) The State Tax Commissioner shall retain for the benefit of the state from the additional taxes on coal collected the amount of $35,000 annually as a fee for the administration of such additional tax by the Tax Commissioner.

§11-13A-6a. Reallocation and dedication of percentage of severance tax for benefit of coal-producing counties; phase-in period; permissible uses of distributed revenues; duties of State Treasurer and State Tax Commissioner; audits; rulemaking.

(a) The purpose of this section is to provide for the reallocation and dedication of a portion of the tax attributable to the severance of coal imposed by §11-13A-3 of this code for the use and benefit of the various counties of this state in which the coal upon which that tax is imposed was located at the time it was severed from the ground. Those counties are referred to in this section as the “coal-producing counties” or, in the singular, as a “coal-producing county”.

(b)(1) Effective July 1, 2012, one percent of the tax attributable to the severance of coal imposed by §11-13A-3 of this code is dedicated and shall be distributed for the use and benefit of the coal-producing counties as provided in this section. Effective July 1, 2013, two percent of the tax attributable to the severance of coal imposed by §11-13A-3 of this code is dedicated and shall be distributed for the use and benefit of the coal-producing counties as provided in this section. Effective July 1, 2014, three percent of the tax attributable to the severance of coal imposed by §11-13A-3 of this code is dedicated and shall be distributed for the use and benefit of the coal-producing counties as provided in this section. Effective July 1, 2015, four percent of the tax attributable to the severance of coal imposed by §11-13A-3 of this code is dedicated and shall be distributed for the use and benefit of the coal-producing counties as provided in this section. Effective July 1, 2016, and thereafter, five percent of the tax attributable to the severance of coal imposed by §11-13A-3 of this code is dedicated and shall be distributed for the use and benefit of the coal-producing counties as provided in this section. Effective July 1, 2019, and thereafter, the portion of the severance tax on coal imposed by §11-13A-3 of this code dedicated and to be distributed for the use and benefit of the coal-producing counties as provided in this subsection shall not be less than the amount distributed pursuant to this subsection for the fiscal year beginning July 1, 2018.

(2) In no fiscal year may the proceeds dedicated in subdivision (1) of this subsection exceed the sum of $20 million.

(3) For purposes of this subsection, the tax attributable to the severance of coal imposed by §11-13A-3 of this code does not include the thirty-five one hundredths of one percent additional severance tax on coal imposed by the state for the benefit of counties and municipalities as provided in §11-13A-6 of this code.

(c) The amounts of the tax dedicated in subsection (b) of this section shall be deposited, from time to time, into a special fund known as the Coal County Reallocated Severance Tax Fund, which is hereby established in the State Treasury, as the proceeds are received by the State Tax Commissioner.

(d) The net proceeds of the deposits made into the Coal County Reallocated Severance Tax Fund shall be allocated among and distributed quarterly to the coal-producing counties by the State Treasurer in the manner specified in this section. On or before each distribution date, the State Treasurer shall determine the total amount of moneys that will be available for distribution to the respective counties entitled to the moneys on that distribution date. The amount to which a coal-producing county is entitled from the Coal County Reallocated Severance Tax Fund shall be determined in accordance with subsection (e) of this section. After determining, as set forth in subsection (e) of this section, the amount each coal-producing county is entitled to receive from the fund, a warrant of the State Auditor for the sum due to each coal-producing county shall be issued and a check drawn thereon making payment of that amount shall thereafter be distributed to each such coal-producing county by hand, mail, commercial delivery, or electronic transmission.

(e) The amount to which a coal-producing county is entitled from the Coal County Reallocated Severance Tax Fund shall be determined by:

(1) Dividing the total amount of moneys in the fund then available for distribution by the total number of tons of coal mined in this state during the preceding quarter; and

(2) Multiplying the quotient thus obtained by the number of tons of coal removed from the ground in the county during the preceding quarter.

(f) (1) No distribution made to a county under this section may be deposited into the county’s general revenue fund. The county commission of each county receiving a distribution under this section shall establish a special account to be known as the (Name of County) Coal County Reallocated Severance Tax Fund into which all distributions made to that county under this section shall be deposited.

(2) Moneys in the county’s coal county reallocated severance tax fund shall be expended by the county commission solely for economic development projects and infrastructure projects.

(3) For purposes of this section:

(A) “Economic development project” means a project in the state which is likely to foster economic growth and development in the area in which the project is developed for commercial, industrial, community improvement or preservation, or other proper purposes.

(B) “Infrastructure project” means a project in the state which is likely to foster infrastructure improvements including, but not limited to, post-mining land use, any water or wastewater facilities or any part thereof, storm water systems, steam, gas, telephone and telecommunications, broadband development, electric lines and installations, roads, bridges, railroad spurs, drainage and flood control facilities, industrial park development or buildings that promote job creation and retention, or litter cleanup programs.

(4) A county commission may not expend any of the funds available in its coal county reallocated severance tax fund for personal services, for the costs of issuing bonds, or for the payment of bond debt service, and shall direct the total funds available in its coal county reallocated severance tax fund to project development, which may include the costs of architectural and engineering plans, site assessments, site remediation, specifications and surveys, and any other expenses necessary or incidental to determining the feasibility or practicability of any economic development project or infrastructure project.

(5) On or before December 31, 2013, and December 1 of each year thereafter, the county commission of each county receiving a distribution of funds under this section shall deliver to the Joint Committee on Government and Finance a written report setting forth the specific projects for which those funds were expended during the next preceding fiscal year, a detailed account of those expenditures, and a showing that the expenditures were made for the purposes required by this section.

(g) An audit of any funds distributed under this section may be authorized at any time by the Joint Committee on Government and Finance to be conducted by the Legislative Auditor at no cost to the county commission or county commissions audited.

(h) The State Tax Commissioner shall propose for promulgation legislative rules pursuant to §29A-3-1 et seq. of this code for the administration of the provisions of this section, and is authorized to promulgate emergency rules for those purposes pursuant to that article.

§11-13A-7. Accounting periods and methods of accounting.

(a) General rule. -- For purposes of the taxes imposed by this article, a taxpayer's taxable year shall be the same as the taxpayer's taxable year for federal income tax purposes. If taxpayer has no taxable year for federal income tax purposes, then the calendar year shall be taxpayer's taxable year under this article.

(b) Change of taxable year. -- If a taxpayer's taxable year is changed for federal income tax purposes, taxpayer's taxable year for purposes of this article shall be similarly changed. The taxpayer shall provide a copy of the authorization for such change from the Internal Revenue Service, with taxpayer's annual return for the taxable year filed under this article.

(c) Methods of accounting same as federal. --

(1) Same as federal. -- A taxpayer's method of accounting under this article shall be the same as the taxpayer's method of accounting for federal income tax purposes. In the absence of any method of accounting for federal income tax purposes, the accrual method of accounting shall be used, unless the Tax Commissioner, in writing, consents to the use of another method. Accrual basis taxpayers may deduct bad debts only in the year to which they relate, and accrual basis health care providers may not deduct bad debts attributable to services rendered before June 1, 1993.

(2) Change of accounting methods. -- If a taxpayer's method of accounting is changed for federal income tax purposes, the taxpayer's method of accounting for purposes of this article shall similarly be changed. The taxpayer shall provide a copy of the authorization for such change from the Internal Revenue Service with its annual return for the taxable year filed under this article.

(d) Adjustments. -- In computing a taxpayer's liability for tax for any taxable year under a method of accounting different from the method under which the taxpayer's liability for tax under this article for the previous year was computed, there shall be taken into account those adjustments which are determined, under regulations prescribed by the Tax Commissioner, to be necessary solely by reason of the change in order to prevent amounts from being duplicated or omitted.

§11-13A-8. Time for filing annual returns and other documents.

On or before the expiration of one month after the end of the taxable year, every taxpayer subject to a tax imposed by this article shall make and file an annual return for the entire taxable year showing such information as the Tax Commissioner may require and computing the amount of taxes due under this article for the taxable year. Returns made on the basis of a calendar year shall be filed on or before the thirty-first day of January following the close of the calendar year. Returns made on the basis of a fiscal year shall be filed on or before the last day of the first month following the close of the fiscal year.

§11-13A-9. Periodic installment payments of taxes imposed by sections three-a, three-b and three-c of this article; exceptions.

(a) General rule. — Except as provided in subsection (b) of this section, taxes levied under §11-13A-3a, §11-13A-3b, and §11-13A-3c of this code are due and payable in periodic installments as follows:

(1) Tax of $50 or less per month. — If a person's annual tax liability under this article is reasonably expected to be $50 or less per month, no installment payments of tax are required under this section during that taxable year.

(2) Tax of more than $1,000 per month. — For taxpayers whose estimated tax liability under this article exceeds $1,000 per month, the tax is due and payable in monthly installments on or before the last day of the month following the month in which the tax accrued:

(A) Each taxpayer shall, on or before the last day of each month, make out an estimate of the tax for which the taxpayer is liable for the preceding month, sign the estimate and mail it together with a remittance, in the form prescribed by the Tax Commissioner, of the amount of tax due to the office of the Tax Commissioner.

(B) In estimating the amount of tax due for each month, the taxpayer may deduct one twelfth of any applicable tax credits allowable for the taxable year, and one twelfth of any annual exemption allowed for that year.

(3) Tax of $1,000 per month or less. — For taxpayers whose estimated tax liability under this article is $1,000 per month or less, the tax is due and payable in quarterly installments on or before the last day of the month following the quarter in which the tax accrued:

(A) Each taxpayer shall, on or before the last day of the fourth, seventh, and 10th months of the taxable year, make out an estimate of the tax for which the taxpayer is liable for the preceding quarter, sign the same, and mail it together with a remittance, in the form prescribed by the Tax Commissioner, of the amount of tax due to the office of the Tax Commissioner.

(B) In estimating the amount of tax due for each quarter, the taxpayer may deduct one fourth of any applicable tax credits allowable for the taxable year, and one fourth of any annual exemption allowed for that year.

(b) Exceptions. — (1) Notwithstanding the provisions of subsection (a) of this section, the Tax Commissioner, if he or she considers it necessary to ensure payment of the tax, may require the return and payment under this section for periods of shorter duration than those prescribed in subsection (a) of this section.

(2) Notwithstanding the provisions of subsection (a) of this section, taxpayers remitting tax on the privilege of severing timber may deduct the annual tax credit allowed in §11-13A-10 of this code only on the annual return filed for any taxable year beginning on or after July 1, 1998. These taxpayers may not deduct any portion of the annual tax credit when they determine the amount of periodic installment payments of timber severance tax due during their taxable year.

§11-13A-9a. Periodic installment payments of tax imposed by section three of this article.

(a) General rule. -- Taxes levied under section three of this article shall be due and payable in periodic installments as follows:

(1) If a person's annual liability under this article can reasonably be expected to be $50 or less per month, no installment payments of tax are required under this section during that taxable year.

(2) If a person's annual tax liability under section three of this article can reasonably be expected to exceed $50 per month, the tax imposed by said section shall be due and payable in monthly installments on or before the last day of the month following the month in which the tax accrued: Provided, That the installment payment otherwise due on or before June 30 each year shall be remitted to the Tax Commissioner on or before June 15 each year.

(A) Each such taxpayer shall, on or before the last day of each month, make out an estimate of the tax for which the taxpayer is liable for the preceding month, sign the same and mail it together with a remittance, in the form prescribed by the Tax Commissioner, of the amount of tax due to the office of the Tax Commissioner: Provided, That the installment payment otherwise due under this paragraph on or before June 30 each year shall be remitted to the Tax Commissioner on or before June 15, beginning June 15, 1988.

(B) In estimating the amount of tax due for each month, the taxpayer may deduct one twelfth of any applicable tax credits allowable for the taxable year and one twelfth of any annual exemption allowed for such year.

(b) Exception. -- Notwithstanding the provisions of subsection (a) of this section, the Tax Commissioner, if he deems it necessary to ensure payment of the tax, may require the return and payment under this section for periods of shorter duration than those prescribed in said subsection.

§11-13A-10. Paying tax; annual tax credit.

Every taxpayer subject to any tax imposed under this article shall be allowed one annual credit of $500 against the taxes due under this article, to be applied at the rate of $41.67 per month for each month the taxpayer was engaged in business in this state during the taxable year exercising a privilege taxable under this article. Persons providing health care items or services who become subject to the tax imposed by section three of this article beginning June 1, 1993, shall be allowed a proportional credit under this section based on the number of months in their tax year that begin on or after June 1, 1993.

§11-13A-10a. Tax credit for business investment and jobs expansion; industrial expansion and revitalization; eligible research and development projects; coal loading facilities.

(a) There shall be allowed as a credit against the tax imposed by this article for the taxable year, the amount determined under articles thirteen-c, thirteen-d and thirteen-e of this chapter relating respectively to:

(1) The tax credit for business investment and jobs expansion;

(2) The tax credit for industrial expansion and revitalization and eligible research and development projects; and

(3) The tax credit for coal loading facilities.

(b) The Tax Commissioner shall prescribe such regulations as he deems necessary to carry out the purposes of this section and articles thirteen-c, thirteen-d and thirteen-e of this chapter.

(c) This provision shall take effect on July 1, 1987.

§11-13A-11. Extension of time for filing returns.

The Tax Commissioner may, upon written request received on or prior to the due date of the annual return or any periodic estimate, grant a reasonable extension of time for filing any return or other document required by this article, upon such terms as he may by regulation prescribe, or by contract require, if good cause satisfactory to the Tax Commissioner is provided by the taxpayer.

§11-13A-12. Extension of time for paying tax.

(a) Amount determined on return. -- The Tax Commissioner may extend the time for payment of the amount of the tax shown, or required to be shown, on any return required by this article (or any periodic installment payments), for a reasonable period not to exceed six months from the date fixed for payment thereof.

(b) Amount determined as deficiency. -- Under regulations prescribed by the Tax Commissioner, he may extend the time for the payment of the amount determined as a deficiency of the taxes imposed by this article for a period not to exceed eighteen months from the date fixed for payment of the deficiency. In exceptional cases, a further period of time not to exceed twelve months may be granted. An extension under this subsection (b) may be granted only where it is shown to the satisfaction of the Tax Commissioner that payment of a deficiency upon the date fixed for the payment thereof will result in undue hardship to the taxpayer.

(c) No extension for certain deficiencies. -- No extension shall be granted under this section for any deficiency if the deficiency is due to negligence, to intentional disregard of rules and regulations, or to fraud with intent to evade tax.

§11-13A-13. Place for filing returns or other documents.

Tax returns, statements, or other documents, or copies thereof, required by this article or by regulations shall be filed with the Tax Commissioner by delivery, in person or by mail, to his office in Charleston, West Virginia: Provided, That the Tax Commissioner may, by regulation, prescribe the place for filing such returns, statements, or other documents, or copies thereof.

§11-13A-14. Time and place for paying tax shown on returns.

(a) General rule. -- The person required to make the annual return required by this article shall, without assessment or notice and demand from the Tax Commissioner, pay such tax at the time and place fixed for filing the return (determined without regard to any extension of time for filing the return).

(b) Date fixed for payment of tax. -- The date fixed for payment of the taxes imposed by this article shall be deemed to be a reference to the last day fixed for such payment (determined without regard to any extension of time for paying the tax).

(c) Terms of extension. -- Any extension of time for payment of tax under this section may be granted upon such terms as the Tax Commissioner may, by regulation, prescribe or by contract require.

§11-13A-15. Signing of returns and other documents.

(a) General. -- Any return, statement or other document required to be made under the provisions of this article shall be signed in accordance with instructions or regulations prescribed by the Tax Commissioner.

(b) Signing of corporation returns. -- The return of a corporation shall be signed by the president, vice president, treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized so to act. In the case of a return made for a corporation by a fiduciary, such fiduciary shall sign the return. The fact that an individual's name is signed on the return shall be prima facie evidence that such individual is authorized to sign the return on behalf of the corporation.

(c) Signing of partnership returns. -- The return of a partnership shall be signed by any one of the partners. The fact that a partner's name is signed on the return shall be prima facie evidence that such partner is authorized to sign the return on behalf of the partnership.

(d) Signature presumed authentic. -- The fact that an individual's name is signed to a return, statement, or other document shall be prima facie evidence for all purposes that the return, statement or other document was actually signed by him

(e) Verification of returns. -- Except as otherwise provided by the Tax Commissioner, any return, declaration or other document required to be made under this article shall contain or be verified by a written declaration that it is made under the penalties of perjury.

§11-13A-16. Bond of taxpayer may be required.

(a) Whenever it is deemed necessary to ensure compliance with this article, the Tax Commissioner may require any taxpayer to post a cash or corporate surety bond.

(b) The amount of the bond shall be fixed by the Tax Commissioner but, except as provided in subsection (c) of this section, shall not be greater than three times the average quarterly liability of taxpayers filing returns for quarterly periods, five times the average monthly liability of taxpayers required to file returns for monthly periods, or two times the average periodic liability of taxpayers permitted or required to file returns for other than monthly or quarterly periods.

(c) Notwithstanding the provisions of subsection (b) of this section, no bond required under this section shall be less than $500.

(d) The amount of the bond may be increased or decreased by the Tax Commissioner at any time subject to the limitations provided in this section.

(e) The Tax Commissioner may bring an action for a restraining order or a temporary or permanent injunction to restrain or enjoin the operation of a taxpayer's business until the bond is posted and any delinquent tax, including applicable interest and additions to tax has been paid. Such action may be brought in the circuit court of Kanawha County or in the circuit court of any county having jurisdiction over the taxpayer.

§11-13A-16a. Nonresident person severing West Virginia timber owned by the person at time of severance required to notify Tax Commissioner prior to severance and prepay severance tax or post bond.

(a) Business registration certificate required. -- Every nonresident person who owns or purchases standing West Virginia timber who either directly, or indirectly through the activities of others, severs that timber shall apply to the Tax Commissioner for a business registration certificate as provided in article twelve of this chapter, before beginning to do business in this state, whether or not the person has a permanent place of business in this state.

(b) "Nonresident person" defined. -- The term "nonresident person" means a "person" or "company" as defined in section three of this article that, if an individual, is a nonresident of this state for purposes of the tax imposed by article twenty-one of this chapter and, if any other person, does not have its commercial domicile in this state, or during the three months preceding the date the application for business registration certificate is filed with the Tax Commissioner did not have a permanent office in this state for the conduct of timbering operations in this state or any other permanent place of business in this state for the conduct of timbering operations as that term is defined in section three, article one-b, chapter nineteen of this code.

(c) Notice of contract. -- Every nonresident person who severs West Virginia timber, either directly or through the activity of others, which that person owns, in whole or in part, at the time that it is severed, shall give the Tax Commissioner written notice of the nonresident person's intent to sever the West Virginia timber identified in the notice. This notice shall be given no earlier than ninety days before the timbering operation begins and no later than thirty days before the timbering operation begins. The notification shall include all of the information required by section six, article one-b, chapter nineteen of this code, the estimated gross value of the timber described in the notice that will be severed and any other information the Tax Commissioner may require: Provided, That the Tax Commissioner may accept as the notification required by this section, a true copy of the notice the nonresident person gave under section six, article eleven-b, chapter nineteen of this code to the director of forestry, the estimated gross value of the timber described in the notice that will be severed and any additional information the Tax Commissioner may require.

(d) Prepayment of severance tax. -- If the nonresident person owns, in whole or in part, the timber at the time that it is severed, the nonresident person shall, at the time the notice required by subsection (c) of this section is given to the Tax Commissioner, pay to the Tax Commissioner four percent of the estimated gross value of the timber to be severed that is described in the notice: Provided, That the estimated gross value shall not be less than the actual price paid or to be paid for the stumpage. The Tax Commissioner shall deposit this amount in a revolving account in the Treasurer's Office to be known as the "Forestry Tax Fund" pending completion of severance of the timber identified in the notice given under subsection (c) of this section, the filing of all required tax returns and payment of all timber severance taxes due under this article attributable to severance of the timber described in the notice given under subsection (c) of this section, including any additions to tax, penalties and interest imposed for failure to timely pay the severance taxes. Within thirty days after the timber identified in the notice is severed, the nonresident person shall file with the Tax Commissioner a report reconciling the amount of prepaid severance tax with the amount of severance taxes actually due on the gross value of the timber at the point where the privilege of severing timber ends. If this report shows that additional timber severance taxes are due, that amount shall be paid when the report is filed with the Tax Commissioner. If the report shows that the amount of timber severance taxes prepaid exceeded the amount actually due, the Tax Commissioner shall refund the difference.

(e) Surety bond. -- In lieu of the prepayment of timber severance tax required by subsection (d) of this section, the nonresident person may furnish to the Tax Commissioner a corporate surety bond in an amount equal to four percent of the estimated gross value of the timber to be severed that is described in the notice: Provided, That the estimated gross value shall not be less than the actual price paid or to be paid for the stumpage, to guarantee timely payment of the taxes due under this article that may be attributable to the timber described in the notice given under subsection (c) of this section. The form of the bond shall be approved by the Tax Commissioner. The surety shall be qualified to do business in this state. The bond shall be conditioned that the nonresident person shall pay all timber severance taxes due under this article attributable to severance of the timber described in the notice given under subsection (c) of this section, including any additions to tax, penalties or interest that may be imposed due to any failure of the nonresident person to pay those taxes as they become due.

(f) Conditions for surety. -- Any surety on a bond furnished under subsection (e) of this section shall be qualified to do business in this state. The surety shall be relieved, released and discharged from all liability accruing on the bond after the expiration of sixty days from the date the Tax Commissioner receives the written request of the surety to be discharged. The written request for discharge may be filed with the Tax Commissioner by personal service or by certified mail, postage prepaid, addressed to the Tax Commissioner at his or her office in Charleston, West Virginia. A request for discharge shall not relieve, release or discharge the surety from liability already accrued, or which shall accrue before expiration of the sixty-day period. Whenever any surety seeks discharge as provided in this subsection, it is the duty of the principal of the bond to supply the Tax Commissioner with another corporate surety bond.

(g) Penalty for noncompliance. -- (1) A nonresident person who fails to comply, in whole or in part, with the requirements of this section shall forfeit the license issued to that person under section four, article one-b, chapter nineteen of this code for a period of one year for the first offense and for a period of two years for each subsequent violation of this section. When the Tax Commissioner determines that a nonresident person is failing to comply, in whole or in part, with the requirements of this section, the commissioner shall certify those facts to the director of forestry. Upon the facts certified by the Tax Commissioner, or upon facts gathered by the director, demonstrating failure of the nonresident person to comply, in whole or in part, with the requirements of this section the director shall then issue an order notifying the nonresident person that the license issued under section four, article one-b, chapter nineteen of this code has been forfeited. A forfeiture order may be appealed as provided in article one-b, chapter nineteen of this code. In addition, the nonresident person shall pay a money penalty equal to fifty percent of the timber severance tax that should have been paid that was not timely paid. This amount shall be in addition to the amount of timber severance taxes not timely paid plus interest and applicable additions to tax. This penalty shall be collected by the Tax Commissioner in the same manner as taxes are collected under this article.

(2) If a nonresident person underestimates the amount of timber severance taxes that must be prepaid under subsection (d) of this section by more than twenty-five percent, the nonresident person shall pay a money penalty equal to fifty percent of the timber severance tax that should have been prepaid that was not prepaid or guaranteed by the surety bond given under subsection (e) of this section. This amount shall be in addition to the amount of timber severance taxes not timely paid plus interest and applicable additions to tax. This penalty shall be collected by the Tax Commissioner in the same manner as taxes are collected under this article.

(h) Effective date. -- The provisions of this section apply to timber severed by a nonresident person on or after July 1, 1998.

§11-13A-17. Collection of tax; agreement for processor to pay tax due from severor.

(a) General. -- In the case of natural resources, other than natural gas, where the Tax Commissioner finds that it would facilitate and expedite the collection of the taxes imposed under this article, the Tax Commissioner may authorize the taxpayer processing the natural resource to report and pay the tax which would be due from the taxpayer severing the natural resources. The agreement shall be in such form as the Tax Commissioner may prescribe. The agreement must be signed: By the owners, if the taxpayers are natural persons; in the case of a partnership or association, by a partner or member; in the case of a corporation, by an executive officer or some person specifically authorized by the corporation to sign the application. The agreement may be terminated by any party to the agreement upon giving thirty days' written notice to the other parties to the agreement: Provided, That the Tax Commissioner may terminate the agreement immediately upon written notice to the other parties when either the taxpayer processing the natural resource or the taxpayer severing the natural resource fails to comply with the terms of the agreement.

(b) Natural gas. --

(1) In the case of natural gas, except for those cases:

(A) Where the person severing (or both severing and processing) the natural gas will sell the gas to the ultimate consumer, or

(B) Where the Tax Commissioner determines that the collection of taxes due under this article would be accomplished in a more efficient and effective manner through the severor, or severor and processor, remitting the taxes; the first person to purchase the natural gas after it has been severed, or in the event that the natural gas has been severed and processed before the first sale, the first person to purchase the natural gas after it has been severed and processed, shall be liable for the collection of the taxes imposed by this article. He shall collect the taxes imposed from the person severing (or severing and processing) the natural gas, and he shall remit the taxes to the Tax Commissioner. In those cases where the person severing (or severing and processing) the natural gas sells the gas to the ultimate consumer, the person so severing (or severing and processing) the natural gas shall be liable for the taxes imposed by this article. In those cases where the Tax Commissioner determines that the collection of the taxes due under this article from the severance (or severance and processing) of natural gas would be accomplished in a more efficient and effective manner through the severor (or severor and processor) remitting the taxes, the Tax Commissioner shall set out his determination in writing, stating his reasons for so finding, and so advise the severor (or severor and processor) at least fifteen days in advance of the first reporting period for which such action would be effective.

(2) On or before the last day of the month following each taxable calendar month, each person first purchasing natural gas as described in subdivision (1) above, shall report purchases of natural gas during the taxable month, showing the quantities of gas purchased, the price paid, the date of purchase, and any other information deemed necessary by the Tax Commissioner for the administration of the tax imposed by this article, and shall pay the amount of tax due, on forms prescribed by the Tax Commissioner.

(3) On or before the last day of the month following each taxable calendar month, each person severing (or severing and processing) natural gas, shall report the sales of natural gas, showing the name and address of the person to whom sold, the quantity of gas sold, the date of sale, and the sales price on forms prescribed by the Tax Commissioner.

§11-13A-18. Records.

(a) General. -- Every taxpayer liable for reporting or paying tax under this article shall keep records, receipts, invoices and other pertinent papers in the form required by the Tax Commissioner.

(b) Period of retention. -- Every taxpayer shall keep the records for not less than three years after the annual return is filed under this article, unless the Tax Commissioner in writing authorizes their earlier destruction. An extension of time for making an assessment automatically extends the time period for keeping the records for all years subject to audit covered in the agreement for extension of time.

(c) Special rule for purchasers of standing timber or of logs. -- In addition to the records required by subsection (a) of this section, every person purchasing standing timber, logs or wood products sawn or chipped in conjunction with a timber harvesting operation in this state delivered after June 30, 1998, shall obtain from the person from whom the standing timber, logs or wood products sawn or chipped in conjunction with a timbering harvest operation are purchased a true copy of the seller's then current business registration certificate issued under article twelve of this chapter or a copy of federal form 1099 for the year of the purchase. When the seller is a person not required by this chapter to have a business registration certificate, the purchaser shall obtain an affidavit from the seller: (1) Stating that the seller does not have a business registration certificate and that the seller is not required by this chapter to have a business registration certificate; (2) listing the seller's social security number or federal employer identification number; and (3) listing the seller's current mailing address. The Tax Commissioner may develop a form for this affidavit.

§11-13A-19. General procedure and administration.

Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter shall apply to the taxes imposed by this article, except as otherwise expressly provided in this article, with like effect as if said act were applicable only to the taxes imposed by this article and were set forth in extenso in this article.

§11-13A-20. Crimes and penalties.

Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of this chapter shall apply to the taxes imposed by this article with like effect as if said act were applicable only to the taxes imposed by this article and were set forth in extenso in this article.

§11-13A-20a. Dedication of tax.

(a) The amount of taxes collected under this article from providers of health care items or services, including any interest, additions to tax and penalties collected under article ten of this chapter, less the amount of allowable refunds and any interest payable with respect to such refunds, shall be deposited into the special revenue fund created in the State Treasurer's Office and known as the Medicaid State Share Fund. Said fund shall have separate accounting for those health care providers as set forth in articles four-b and four-c, chapter nine of this code.

(b) Notwithstanding the provisions of subsection (a) of this section, for the remainder of fiscal year 1993 and for each succeeding fiscal year, no expenditures from taxes collected from providers of health care items or services are authorized except in accordance with appropriations by the Legislature.

(c) The amount of taxes on the privilege of severing timber collected under section three-b of this article, including any interest, additions to tax and penalties collected under article ten of this chapter, less the amount of allowable refunds and any interest payable with respect to such refunds, shall be paid into a special revenue account in the State Treasury to be appropriated by the Legislature for purposes of the Division of Forestry.

(d) Notwithstanding any other provision of this code to the contrary, beginning January 1, 2009, there is hereby dedicated an annual amount not to exceed $4 million from annual collections of the tax imposed by section three-d of this article to be deposited into the West Virginia Infrastructure Fund, created in section nine, article fifteen-a, chapter thirty-one of this code.

(e) Beginning with the fiscal year ending June 30, 2009, and each fiscal year thereafter, the Tax Commissioner shall pay from the taxes imposed in section three-d of this article, on October 1, of each year, to the county economic development entities, as this term is defined in this subsection, or county commissions as provided in subsections (f) through (h) of this section, an amount in the aggregate not to exceed $4 million per fiscal year: Provided, That on July 1, 2012, the Tax Commissioner shall deposit the taxes imposed in section three-d of this article into a special revenue fund, which is hereby created in the State Treasurer's Office and known as the Coalbed Methane Gas Distribution Fund: Provided, however, That such deposit of taxes shall not exceed in the aggregate $4 million per fiscal year and moneys therein shall be distributed by the State Treasurer pursuant to this section. Prior to making any such payment the commissioner shall deduct the amount of refunds lawfully paid and administrative costs authorized by this code. All moneys distributed to the West Virginia Infrastructure Fund pursuant to this section prior to July 1, 2011, shall be returned to the Tax Commissioner and distributed to the county economic development entities, as this term is defined in this subsection, or county commissions as provided in this section. For purposes of this section, the term "county economic development entity" refers to a county economic development authority established pursuant to article twelve, chapter seven of this code or if a county does not have a county economic development authority established pursuant to article twelve, chapter seven of this code, an entity designated by resolution of the county commission of the county as the lead entity for economic development activities for the purpose of encouraging economic development in the county which entity may be, but is not limited to being, redevelopment authorities created pursuant to article eighteen, chapter sixteen of this code; county economic development corporations; regional economic development councils, corporations or partnerships.

(f) Notwithstanding any provision of this article to the contrary, prior to the deposit of the proceeds of the tax on coalbed methane with each, county economic development entity or county commission pursuant to subsection (e) of this section, the Tax Commissioner shall undertake the following calculations:

(1) Seventy-five percent of the moneys to be deposited shall be provisionally allocated for the various counties of this state in which the coalbed methane was produced; and

(2) The remaining twenty-five percent of the moneys to be deposited shall be provisionally allocated to the various counties of this state in which no coalbed methane was produced for projects in accordance with subsection (h) of this section.

(3) Moneys shall be provisionally allocated to each coalbed methane producing county in direct proportion to the amount of tax revenues derived from coalbed methane production in the county.

(4) Moneys shall be provisionally allocated to each coalbed methane nonproducing county equally.

(5) Portional adjustments.

(A) If, for any year, a coalbed methane producing county's share of money provisionally allocated to that county is computed to be an amount that is less than the amount provisionally allocated to each of the coalbed methane nonproducing counties, then for purposes of the computations set forth in this subsection, that coalbed methane producing county shall be redesignated a coalbed methane nonproducing county. The money that has been provisionally allocated to that coalbed methane producing county out of the seventy-five percent portion specified in subdivision (1) of this subsection shall be subtracted out of the seventy-five percent portion specified in that subdivision and added to the twenty-five percent portion specified in subdivision (2) of this subsection.

(B) When the adjustment specified in paragraph (A), of this subdivision has been made for each coalbed methane producing county that has been redesignated as a coalbed methane nonproducing county, then the Tax Department shall finalize the calculations of the amounts to be made available for distribution to the respective county economic development entity or county commission of the coalbed methane producing counties that have not been redesignated as coalbed methane nonproducing counties under paragraph (A) of this subdivision as follows: The amount remaining in the provisional seventy-five percent portion specified in subdivision (1) of this subsection, as adjusted in accordance with paragraph (A) of this subdivision, shall be allocated, in direct proportion to the amount that tax revenues derived from coalbed methane production in each such county not redesignated as a coalbed methane nonproducing county bears to the total amount of tax revenues derived from coalbed methane production in all coalbed methane producing counties that have not been redesignated as a coalbed methane nonproducing county.

(C) The Tax Commissioner shall then finalize the calculation of the total amount in the twenty-five percent portion specified in subdivision (2) of this subsection, as adjusted in accordance with paragraph (A) of this subdivision equally among the coalbed methane nonproducing counties.

(D) The Tax Commissioner, upon completing the calculation of the total amount of tax to be distributed to all coalbed methane producing counties and to all coalbed methane nonproducing counties, shall deposit an amount equal to the amount so calculated in the Coalbed Methane Gas Distribution Fund, subject to the limitations set forth in this section.

(g) In no case may the total amount distributed in any fiscal year to the aggregate of all coalbed methane producing counties and all coalbed methane nonproducing counties calculated by the Tax Commissioner exceed the total amount of tax on coalbed methane authorized to be remitted to the county economic development entities and county commissions pursuant to subsection (e) of this section.

(h) Distribution of coalbed methane severance tax to county economic development entities or county commissions is subject to the following:

(1) If the amount determined pursuant to subsections (f) and (g) of this section for a county is more than $10,000, the State Treasurer shall distribute the amount determined for that county to the county economic development entity. The State Treasurer is hereby authorized to distribute accumulated but undistributed moneys from fiscal years 2009, 2010, 2011 and 2012 to each county economic development entity.

(2) Each county economic development entity shall use such funds for economic development projects and infrastructure projects.

(3) For purposes of this section:

(A) "Economic development project" means a project in the state which is likely to foster economic growth and development in the area in which the project is developed for commercial, industrial, community improvement or preservation or other proper purposes.

(B) "Infrastructure project" means a project in the state which is likely to foster infrastructure improvements and covers post mining land use, water or wastewater facilities, stormwater systems, steam, gas, telephone and telecommunications, broadband development, electric lines and installations, roads, bridges, railroad spurs, drainage and flood control facilities, industrial park development, road or buildings that promote job creation and retention.

(4) Prior to expending any coalbed methane severance tax moneys, each county economic development entity must obtain the approval of its respective county commission, or the county commission or commissions representing the county or counties where the economic development or infrastructure project will be situate if the county economic development entity is regional and encompasses more than one county, in writing for the purpose of such expenditure.

(5) A county commission or county economic development entity may not use funds distributed to it pursuant to subsections (e), (f), (g) and (h) of this section for the purposes of paying wages to any employee of the county or any employee of a county economic development entity.

(6) If the amount determined pursuant to subsections (f) and (g) of this section for a county is $10,000 or less, the State Treasurer shall distribute the amount determined for that county to the county commission. The county commission may then use the funds to offset its regional jail costs, costs of any community corrections programs in which it participates, expenses of a volunteer fire department that provides service within its county or expenses of any library that provides services within its county.

(i) On or before December 1, 2013, and December 1 of each year thereafter, the county economic development entity as defined in this section or county commission receiving a distribution of funds under this section shall deliver to the Joint Committee on Government and Finance a written report setting forth the specific projects for which those funds were expended during the next preceding fiscal year, a detailed account of those expenditures and a showing that the expenditures were made for the purposes required by this section.

(j) An audit of any funds distributed under this section may be authorized at any time by the Joint Committee on Government and Finance to be conducted by the Legislative Auditor at no cost to the county economic development entity or county commission audited.

§11-13A-21. Severability.

If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby.

§11-13A-22. Termination of exemption.

(a) On and after July 1, 2013, the exemption set forth in subdivision (4), subsection (a), section three-a of this article is void and of no force or effect with respect only to horizontally drilled wells. However, if a well for which the producer established entitlement to that exemption on or before June 30, 2013, the exemption from tax continues for natural gas or oil produced from that well for the remainder of the ten-year period for which the exemption was originally applicable.

(b) "Horizontally drilled well" means any well that is drilled using a "horizontal drilling" method as that term is defined in subdivision (5), subsection (b), section four, article six-a, chapter twenty-two of this code.

(c) Pursuant to section five-p, article ten of this chapter, termination of the exemption set forth in subdivision (4), subsection (a), section three-a of this article on and after July 1, 2013, is subject to the controlling internal effective date of this section and is not subject to the alternative effective date provisions of section five-p, article ten of this chapter.

§11-13A-23.

Repealed.

Acts, 1993 1st Ex. Sess., Ch. 7.

§11-13A-24.

Repealed.

Acts, 1993 1st Ex. Sess., Ch. 7.

§11-13A-25. Effective date.

Amendments to this article made by this act of the Legislature shall take effect June 1, 1993.

§11-13B-1.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-2.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-3.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-4.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-5.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-6.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-7.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-8.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-9.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-10.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-10a.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-11.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-12.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-13.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-14.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-15.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-16.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-17.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-18.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13B-19.

Repealed.

Acts, 2012 Reg. Sess., Ch. 183.

§11-13C-1. Short title.

This article may be cited as the "West Virginia Business Investment and Jobs Expansion Tax Credit Act."

§11-13C-2. Legislative finding and purpose.

The Legislature finds that the encouragement of economic growth and development in this state is in the public interest and promotes the general welfare of the people of this state. In order to encourage capital investment in businesses in this state and thereby increase employment and economic development, there is hereby provided a business investment and jobs expansion tax credit.

§11-13C-3. Definitions.

(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) shall have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition, in this article.

(b) Terms defined.

(1) Business. -- The term "business" means any activity taxable under article twelve-a or thirteen (or both) of this chapter, which is engaged in by any person in this state: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen, (or both) of this chapter" shall mean "taxes imposed by article thirteen, thirteen-a, thirteen-b twenty-one, twenty-three and twenty-four of this chapter (or any one or combination of such articles of this chapter)."

(2) Business expansion. -- The term "business expansion" means capital investment in a new or expanded business facility in this state.

(3) Business facility. -- The term "business facility" means any factory, mining operation, mill, plant, refinery, warehouse, building or complex of buildings located within this state, including the land on which it is located, and all machinery, equipment and other real and personal property located at or within such facility, used in connection with the operation of such facility, in a business that is taxable in this state, and all site preparation and start-up costs of the taxpayer for the business facility which it capitalizes for federal income tax purposes.

(A) "Mining operation" means the place at which a person extracts ores or minerals from the ground. It includes both surface and underground mining operations.

(B) "Surface mine" means the surface of land upon which activities are conducted which disturb the natural surface of the land and result in the production of ores or minerals.

(C) "Underground mine" means the surface effects associated with the shafts, slopes, lifts or inclines connected with excavations penetrating seams or strata of minerals, and the equipment connected therewith which contribute to the mining, preparation or handling of ores or minerals.

(4) Commissioner or Tax Commissioner. -- The terms "commissioner" and "Tax Commissioner" are used interchangeably herein and mean the Tax Commissioner of the State of West Virginia, or his delegate.

(5) Compensation. -- The term "compensation" means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.

(6) Controlled group. -- The term "controlled group" means one or more chains of corporations connected through stock ownership with a common parent corporation if stock possessing at least fifty percent of the voting power of all classes of stock of each of the corporations is owned directly or indirectly by one or more of the corporations; and the common parent owns directly stock possessing at least fifty percent of the voting power of all classes of stock of at least one of the other corporations.

(7) Corporation. -- The term "corporation" means any corporation, joint-stock company or association, and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.

(8) Delegate. -- The term "delegate" in the phrase "or his delegate," when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Department duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

(9) Eligible taxpayer. -- The term "eligible taxpayer" means any person subject to the taxes imposed by article twelve-a or thirteen (or both) of this chapter who makes qualified investment in a new or expanded business facility located in this state that results in the creation of at least fifty new jobs: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen, (or both) of this chapter" shall mean "taxes imposed by articles thirteen, thirteen-a, thirteen-b twenty-one, twenty-three and twenty-four of this chapter (or any one or combination of such articles of this chapter). "Eligible taxpayer" shall also include an affiliated group of taxpayers if such group elects to file a consolidated corporation net income tax return under article twenty-four of this chapter.

(10) Expanded facility. -- The term "expanded facility" means any business facility (other than a new or replacement business facility) resulting from the acquisition, construction, reconstruction, installation or erection of improvements or additions to existing property if such improvements or additions are purchased on or after March 1, 1985, but only to the extent of the taxpayer's qualified investment in such improvements or additions.

(11) Includes and including. -- The terms "includes" and "including," when used in a definition contained in this article, shall not be deemed to exclude other things otherwise within the meaning of the term defined.

(12) New business facility. -- The term "new business facility" means a business facility which satisfies all the requirements of subparagraphs (A), (B), (C) and (D) of this subdivision.

(A) The facility is employed by the taxpayer in the conduct of a business the net income of which is taxable under article twenty-one or twenty-four of this chapter. Such facility shall not be considered a new business facility in the hands of the taxpayer if the taxpayer's only activity with respect to such facility is to lease it to another person or persons.

(B) Such facility is purchased by, or leased to, the taxpayer and is placed in service or use on or after March 1, 1985.

(C) The facility was not acquired by the taxpayer from a related person. The Tax Commissioner can waive this requirement if the facility was acquired from a related party for its fair market value.

(D) Such facility was not in service or use during the ninety days immediately prior to transfer of the title to such facility, or to the commencement of the term of the lease of such facility, unless upon application of the taxpayer, setting forth good and sufficient cause, the Tax Commissioner consents to waiving this ninety-day period.

(13) New employee. -- The term "new employee" means a person residing and domiciled in this state, hired by the taxpayer to fill a position for a job in this state, which previously did not exist in the business enterprise in this state, prior to the date on which the taxpayer's qualified investment is placed in service or use in this state. In no case shall the new employees allowed for purposes of this credit exceed the total increase in the taxpayer's employment in this state. A person shall be deemed to be a "new employee" if such person's duties in connection with the operation of the business enterprise are on:

(A) A regular, full-time and permanent basis.

(1) "Full-time employment" means employment for at least one hundred twenty hours per month at a wage not less than the prevailing state or federal minimum wage, depending on which minimum wage provision is applicable to the business.

(2) "Permanent employment" does not include employment that is temporary or seasonal.

(B) A part-time basis, provided such person is customarily performing such duties at least twenty hours per week for at least six months during the taxable year.

(14) New job. -- The term "new job" means a job which did not exist in the business of the taxpayer in this state prior to the taxpayer's qualified investment being made, and which is filled by a new employee.

(15) New property. -- The term "new property" means:

(A) Property the construction, reconstruction or erection of which is completed on or after March 1, 1985, and placed in service or use after such date; and

(B) Property leased or acquired by the taxpayer that is placed in service or use in this state on or after March 1, 1985, if the original use of such property commences with the taxpayer and commences after such date.

(16) Original use. -- The term "original use" means the first use to which the property is put, whether or not such use corresponds to the use of the property by the taxpayer.

(17) Partnership and partner. -- The term "partnership" includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust or estate, a corporation or a sole proprietorship. The term "partner" includes a member in such a syndicate, group, pool, joint venture or organization.

(18) Person. -- The term "person" includes any natural person, corporation or partnership.

(19) Property purchased or leased for business expansion.

(A) Included property. -- Except as provided in subparagraph (B), the term "property purchased or leased for business expansion" means real property and improvements thereto, and tangible personal property, but only if such real or personal property was constructed, purchased, or leased and placed in service or use by the taxpayer, for use as a component part of a new or expanded business facility, as defined in this section, which is located within West Virginia. This term includes only:

(1) Real property and improvements thereto having a useful life of four or more years, placed in service or use on or after March 1, 1985, by the taxpayer.

(2) Real property and improvements thereto, or tangible personal property acquired by written lease having a primary term of ten or more years and placed in service or use by the taxpayer on or after March 1, 1985.

(3) Tangible personal property placed in service or use by the taxpayer on or after March 1, 1985, with respect to which depreciation, or amortization in lieu of depreciation, is allowable in determining the personal or corporation net income tax liability of the business taxpayer under article twenty-one or twenty-four of this chapter, and which has a useful life at the time such property is placed in service or use in this state, of four or more years.

(4) Tangible personal property acquired by written lease having a primary term of four years or longer, that commenced and was executed by the parties thereto on or after February 1, 1986, if used as a component part of a new or expanded business facility, shall be included within this definition.

(5) Tangible personal property owned or leased, and used by the taxpayer at a business location outside this state which is moved into this state on or after February 1, 1986, for use as a component part of a new or expanded business facility located in this state: Provided, That if the property is owned, it must be depreciable or amortizable personal property for income tax purposes, and have a useful life of four or more years remaining at the time it is placed in service or use in this state, and if the property is leased, the primary term of the lease remaining at the time the leased property is placed in service or use in this state, must be four or more years:

(B) Excluded property. -- The term "property purchased or leased for business expansion" shall not include:

(1) Property owned or leased by the taxpayer and for which credit was taken under article thirteen-c of this chapter prior to its repeal, on April 13, 1985, or under article thirteen-d or thirteen-e of this chapter;

(2) Repair costs, including materials used in the repair, unless for federal income tax purposes, the cost of the repair must be capitalized and not expensed;

(3) Motor vehicles licensed by the department of motor vehicles: Provided, That such property, if purchased or leased on or after February 1, 1986, shall not be excluded by virtue of this clause (3);

(4) Airplanes;

(5) Off-premise transportation equipment: Provided, That such property, if purchased or leased on or after February 1, 1986, shall not be excluded by virtue of this clause (5);

(6) Property which is primarily used outside this state; and

(7) Property which is acquired incident to the purchase of the stock or assets of the seller, unless for good cause shown, the Tax Commissioner consents to waiving this requirement.

(C) Purchase date. -- Property shall be deemed to have been purchased prior to a specified date only if:

(1) The physical construction, reconstruction or erection of the property was begun prior to the specified date, or such property was constructed, reconstructed, erected or acquired pursuant to a written contract as existing and binding on the purchase prior to the specified date;

(2) The machinery or equipment was owned by the taxpayer prior to the specified date or was acquired by the taxpayer pursuant to a binding purchase contract which was in effect prior to the specified date; or

(3) In the case of leased property, there was a binding written lease or contract to lease identifiable property in effect prior to the specified date.

(20) Purchase. -- The term "purchase" means any acquisition of property, but only if:

(A) The property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under Section 267 or 707 (b) of the United States Internal Revenue Code of 1954, as amended, and in effect on January 1, 1985;

(B) The property is not acquired by one component member of a controlled group from another component member of the same controlled group. The Tax Commissioner can waive this requirement if the property was acquired from a related party for its then fair market value; and

(C) The basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined:

(1) In whole or in part by reference to the federal adjusted basis of such property in the hands of the person from whom it was acquired; or

(2) Under Section 1014 (e) of the United States Internal Revenue Code of 1954, as amended, and in effect on January 1, 1985.

(21) Qualified activity. -- The term "qualified activity" means any business or other activity subject to the tax imposed by article twelve-a or thirteen (or both) of this chapter: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen (or both) of this chapter" shall mean "taxes imposed by articles thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and twenty-four of this chapter (or any one or combination of such articles of this chapter)."

(22) Related person. -- The term "related person" means:

(A) A corporation, partnership, association or trust controlled by the taxpayer;

(B) An individual, corporation, partnership, association or trust that is in control of the taxpayer;

(C) A corporation, partnership, association or trust controlled by an individual, corporation, partnership, association or trust that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer.

For purposes of subdivisions (20) and (22) of this section, "control," with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of such corporation entitled to vote. "Control," with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of such trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in Section 267 (c) of the United States Internal Revenue Code of 1954, as amended, other than paragraph (3) of such section.

(23) Replacement facility. -- The term "replacement facility" means any property (other than an expanded facility) that replaces or supersedes any other property located within this state that:

(A) The taxpayer or a related person used in or in connection with any activity for more than two years during the period of five consecutive years ending on the date the replacement or superseding property is placed in service by the taxpayer; or

(B) Is not used by the taxpayer or a related person in or in connection with any qualified activity for a continuous period of one year or more commencing with the date the replacement or superseding property is placed in service by the taxpayer.

(24) Taxpayer. -- The term "taxpayer" means any person subject to the tax imposed by article twelve-a or thirteen (or both) of this chapter: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen (or both) of this chapter" shall mean "taxes imposed by articles thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and twenty-four of this chapter (or any one or combination of such articles of this chapter)."

(25) This code. -- The term "this code" means the Code of West Virginia, 1931, as amended.

(26) This state. -- The term "this state" means the State of West Virginia.

(27) Used property. -- The term "used property" means property acquired after the twenty-eighth day of February, 1985, that is not "new property."

§11-13C-4. Amount of credit allowed.

(a) Credit allowed. -- Eligible taxpayers shall be allowed a credit against the portion of taxes imposed by this state that are attributable to and the consequence of the taxpayer's qualified investment in a new or expanded business in this state, which results in the creation of new jobs. The amount of this credit shall be determined and applied as hereinafter provided in this article.

(b) Amount of credit. -- The amount of credit allowable is determined by multiplying the amount of the taxpayer's "qualified investment" (determined under section four-a or six, or both) in "property purchased for business expansion" (as defined in section three) by the taxpayer's new jobs percentage (determined under section seven). The product of this calculation establishes the maximum amount of credit allowable under this article, due to the qualified investment.

(c) Application of credit over ten years. -- The amount of credit allowable must be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the taxpayer places the qualified investment in service or use in this state, unless the taxpayer elected to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the annual income tax return filed for the taxable year in which credit is first taken on the qualified investment placed into service or use by the taxpayer. Once made, the election cannot be revoked. The annual credit allowance shall be taken in the manner prescribed in section four of this article.

(d) Placed in service or use. -- For purposes of the credit allowed by this section, property shall be considered placed in service or use in the earlier of the following taxable years:

(1) The taxable year in which, under the taxpayer's depreciation practice, the period for depreciation with respect to such property begins; or

(2) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.

§11-13C-4a. Credit allowed for locating corporate headquarters in this state.

(a) Credit allowed. -- A corporation that presently has its corporate headquarters located outside this state that relocates its corporate headquarters in this state and employs, on a full-time basis, at its new corporate headquarters location, at least fifteen people, who are domiciled in this state, shall be allowed credit under this article, the amount of which shall be determined as provided in subsection (b). For corporate headquarters relocations occurring on and after January 1, 1998, the restrictions set forth in subsection (a), section fifteen of this article shall not apply to the credit allowed under this section. However, the restrictions set forth in subsection (a), section fifteen of this article and the exceptions thereto set forth in subsection (b) of said section fifteen, shall remain fully applicable and in force and effect for all other tax credits provided or allowable under this article.

(b) Determination of credit. -- The amount of credit allowed by subsection (a) shall be determined at the election of the taxpayer:

(1) By multiplying its adjusted qualified investment by its new jobs percentage (as determined under section seven of this article); or

(2) By multiplying its adjusted qualified investment by ten percent.

(c) Corporate headquarters relocations after December 31, 1997. -- For purposes of corporate headquarters relocations occurring on or after January 1, 1998, and notwithstanding any other provision of this article to the contrary:

(1) New jobs created in this state by relocation of a corporate headquarters may include jobs created in this state within twelve months before or after the month in which the qualified investment in the corporate headquarters relocation is placed into service or use in this state by:

(A) Relocation or transfer of employees of the corporation or employees of a related corporation or related person from an out-of-state location to the relocated corporate headquarters in this state, who: (i) Are or become employees of the corporation within twelve months before or after the month in which the qualified investment in the corporate headquarters is placed into service or use in this state; and (ii) whose regular place of work is in the corporate headquarters, or

(B) New employees of the corporation whose regular place of work is in the corporate headquarters.

(2) Multiple year projects certified under section four-b of this article may be allowed for corporate headquarters relocations under this section.

(d) Application of credit. -- The credit allowed by this section shall be applied in the manner prescribed in section five of this article: Provided, That the amount of corporation net income taxes against which the credit allowed by this section may be applied shall be the sum of the corporation net income tax due on adjusted federal taxable income allocated to this state under section seven, article twenty-four of this chapter, plus that portion of the corporation net income tax due on adjusted federal taxable income apportioned to this state under section seven, article twenty-four of this chapter, that is further apportioned to the qualified investment using the payroll factor provided in paragraph (1), subsection (h) of said section five or an alternative means of apportionment as prescribed by the Tax Commissioner under said section five. For all other purposes, the credit allowed by this section shall be treated as credit allowed by section four of this article.

(e) Definitions. -- For purposes of this section:

(1) Adjusted qualified investment. -- The term "adjusted qualified investment" means the taxpayer's qualified investment in the corporate headquarters as determined under section six of this article and rules of the Tax Commissioner, plus the cost of the reasonable and necessary expenses it incurred to relocate its corporate headquarters at a location in this state from its present location outside this state.

(2) Corporate headquarters. -- The term "corporate headquarters" means the place at which the corporation has its commercial domicile and from which the business of the corporation is primarily conducted.

(3) Reasonable and necessary expenses incurred to relocate corporate headquarters. -- The phrase "reasonable and necessary expenses incurred to relocate corporate headquarters" means only those expenses incurred and paid by the corporation, to unrelated third parties, to move its corporate headquarters and its corporate headquarters employees to this state that are, upon application by the corporation, determined by the Tax Commissioner to have been both reasonable and necessary to effectuate the move.

(4) The corporation. -- For purposes of this section, the term "the corporation" means the corporation for which the corporate headquarters is relocated.

(f) Effective date. -- The credit allowed by this section as amended in the year 1998 shall be allowable for corporate headquarters placed in service or use on or after January 1, 1998.

§11-13C-4b. Credit allowable for certified projects.

(a) In general. -- A project certified by the Tax Commissioner shall be eligible for the credit allowable by this article. A project eligible for certification under this section is one where:

(1) The qualified investment under this article creates at least fifty new jobs but such qualified investment is placed in service or use over a period of three successive tax years: Provided, That such qualified investment is made pursuant to a written business facility development plan of the taxpayer providing for an integrated project for investment at one or more new or expanded business facilities, a copy of which must be attached to the taxpayer's application for project certification and approved by the Tax Commissioner, and the qualified investment placed in service or use during the first tax year would not have been made without the expectation of making the qualified investment placed in service or use during the next two succeeding tax years;

(2) The qualified investment is made by one or more persons, but some or all of the new jobs created at each new or expanded business facility as a result of the qualified investment are created by one or more other persons: Provided, That at least fifty new jobs are created at the new or expanded business facility or facilities in which the qualified investment is made, and such jobs are, upon application, certified by the Tax Commissioner as new jobs created as a direct result of the qualified investment, and that such qualified investment is made pursuant to a written business facility development plan of the taxpayer providing for an integrated project for investment at one or more new or expanded business facilities, a copy of which must be attached to the taxpayer's application for project certification and approved by the Tax Commissioner;

(3) The qualified investment is made by one or more persons but some or all of the new jobs created as a direct result of the qualified investment are created by one or more other persons: Provided, That at least fifty new jobs are created within a fifty mile radius of each new or expanded business facility in which the qualified investment is made, and such jobs are, upon application, certified by the Tax Commissioner as being new jobs created as a direct result of the qualified investment, and that such qualified investment is made pursuant to a written business facility development plan of the taxpayer providing for an integrated project for investment at one or more new or expanded business facilities, a copy of which must be attached to the taxpayer's application for project certification and approved by the Tax Commissioner.

(b) Application for certification. -- The application for certification of a project under this section shall be filed with and approved by the Tax Commissioner prior to any credit being claimed or allowed for the project's qualified investment and new jobs created as a direct result of the qualified investment. This application shall be approved in writing by all the participants in the project and shall contain such information as the Tax Commissioner may require to determine whether the project should be certified as eligible for credit under this article.

(c) Taking of credit.

(1) If the certified project for which qualified investment is made involves one or more persons making the capital investment and one or more persons, or a combination thereof, creating at least fifty new jobs at the site of the new or expanded business facility or facilities, then credit shall be allowed under this article for the certified project based upon the qualified investment in the certified project (as determined under section six) multiplied by the project's new jobs percentage (determined under section seven).

(2) If the certified project for which qualified investment is made involves one or more persons making the capital investment and one or more persons, or a combination thereof, creating at least fifty new jobs located within a fifty mile radius of each new or expanded business facility in which the qualified investment is made, then credit shall be allowed under this article for the certified project based upon the qualified investment in the certified project (as determined under section six) multiplied by fifty percent.

(3) The amount of credit allowable, as determined under subdivision (1) or (2), above, shall be applied as provided in section five, and shall be claimed in the manner specified in the project's application to the Tax Commissioner for certification under this section, by one participant in the project or divided among the several participants in the project, and for this purpose the numerator of the payroll factor shall be the total compensation paid in this state during the taxable year by all project participants to all new employees filling the new jobs created and the denominator shall be the total compensation paid in this state during the taxable year by all project participants to their employees. Such allocation, if approved by the Tax Commissioner, shall constitute a binding election by the participants in the project for the entire term during which the credit attributable to the qualified investment in the certified project may be applied to reduce tax liabilities. The participant or participants claiming the credit for qualified investments in a certified project shall annually file with their income tax returns filed under this chapter:

(A) Certification that the participant's qualified investment property continues to be used in the project and if disposed of during the tax year, was not disposed of prior to expiration of its useful life;

(B) Certification that the new jobs created by the project's qualified investment continue to exist and are filled by persons who are residents of this state; and

(C) Such other information as the Tax Commissioner requires to determine continuing eligibility to claim the annual credit allowance for the project's qualified investment.

(d) Terms defined. -- For purposes of this section:

(1) New employee. -- The term "new employee" means a person residing and domiciled in this state, hired by a participant to fill a position for a job which previously did not exist in this state prior to the date on which the project's qualified investment is placed in service or use in this state. In no case shall the new employees allowed for purposes of this credit exceed the total increases in the number of persons employed by the project's participants (considered as a group) in this state. A person shall be deemed to be a "new employee" if such person's duties in connection with the operation of the certified project are on:

(A) A regular, full-time and permanent basis.

(1) "Full-time employment" means employment for at least one hundred twenty hours per month at a wage not less than the prevailing state or federal minimum wage, depending on which minimum wage provision is applicable to the business.

(2) "Permanent employment" does not include employment that is temporary or seasonal.

(B) A part-time basis, provided such person is customarily performing such duties at least twenty hours per week for at least six months during the taxable year.

(2) New job. -- The term "new job" means a job which did not exist in this state prior to the project's qualified investment being made, and which is filled by a new employee.

(3) Participant. -- The term "participant" means any person who directly makes a qualified investment in a certified project, or who employs persons filling the jobs certified by the Tax Commissioner as being new jobs created as a direct result of the project's qualified investment.

(e) Effective date.

(1) This section shall apply to a project having qualified investment of at least $50,000,000 placed in service or use between March 1, 1985, and February 1, 1986, and shall also apply to qualified investment made on or after February 1, 1986.

(2) The application for project certification for a project having qualified investment of at least $50,000,000 placed in service or use between March 1, 1985, and February 1, 1986, shall be deemed timely filed under subsection (b) of this section only if such application is filed with the Tax Commissioner prior to December 31, 1986: Provided, That the Tax Commissioner shall not certify such project until the project participants certify that at least fifty new jobs were created by them prior to January 1, 1988, as a direct result of their qualified investment in the project, and that such jobs did not previously exist in this state, determined as of January 1, 1986; that the inclusion of such property shall not give rise to a refund or credit of any taxes administered under this chapter for taxable years ending before January 1, 1987; and that the ten-year credit period for such certified project shall begin with the current taxable year of the project participant or participants who will be claiming the allowable credit.

§11-13C-5. Application of annual credit allowance.

(a) In general. -- The aggregate annual credit allowance for the current taxable year is an amount equal to the sum of the following as modified under subsections (o) and (p) of this section:

(1) The one-tenth part allowed under section four of this article for qualified investment placed into service or use during a prior taxable year; plus

(2) The one-tenth part allowed under section four of this article for qualified investment placed into service or use during the current taxable year; plus

(3) The one-tenth part allowed under section four-a of this article for locating corporate headquarters in this state; or the amount allowed under section seven-a of this article of the taxable year.

(b) Application of current year annual credit allowance. -- The amount determined under subsection (a) of this section shall be allowed as a credit against that portion of the taxpayer's state tax liability which is attributable to and the direct result of the taxpayer's qualified investment, and shall be applied as provided in subsections (c) through (k), both inclusive, of this section, and in that order.

(c) Business and occupation taxes. --

(1) That portion of the allowable credit attributable to qualified investment in a business or other activity subject to the taxes imposed by article thirteen of this chapter shall first be applied to reduce up to eighty percent of the taxes imposed by said article for the taxable year (determined before application of allowable credits against tax and the annual exemption).

(2) If the taxes due under article thirteen of this chapter are not solely attributable to and the direct result of the taxpayer's qualified investment in a business or other activity taxable under said article, the amount of such taxes, which are so attributable, shall be determined by multiplying the amount of taxes due under said article, for the taxable year (determined before application of any allowable credits against tax and the annual exemption), by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the qualified investment in a business or other activity taxable under said article. The denominator of the fraction shall be the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the business or other activity of the taxpayer that is taxable under said article.

(3) The annual exemption allowed by section three, article thirteen of this chapter, plus any credits allowable under articles thirteen-d and thirteen-e of this chapter, shall be applied against and reduce only the portion of article thirteen taxes not apportioned to the qualified investment under this article: Provided, That any excess exemption or credits may be applied against the amount of article thirteen taxes apportioned to the qualified investment under this article, that is not offset by the amount of annual credit against such taxes allowed under this article for the taxable year, unless their application is otherwise prohibited by this chapter.

(d) Carrier income taxes. --

(1) That portion of the allowable credit attributable to qualified investment in a business or other activity subject to the taxes imposed by article twelve-a of this chapter shall first be applied to reduce up to eighty percent of the taxes imposed by said article for the taxable year.

(2) If the taxes due under article twelve-a of this chapter are not solely attributable to and the direct result of the taxpayer's qualified investment in a business or other activity taxable under said article, the amount of such taxes, which are so attributable, shall be determined by multiplying the amount of taxes due under said article for the taxable year, by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the qualified investment in a business or other activity taxable under said article. The denominator of the fraction shall be the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer, employed in this state, whose positions are directly attributable to the business or other activity of the taxpayer that is taxable under said article.

(e) Severance taxes. --

(1) On and after July 1, 1984, that portion of the allowable credit attributable to qualified investment in a business or other activity subject to the tax imposed by article thirteen-a of this chapter, and qualified investment in a business or activity that was subject to the tax imposed by article thirteen of this chapter prior to said first day of July, but on and after said first day of July, is subject to the tax imposed by article thirteen-a of this chapter, shall first be applied to reduce up to eighty percent of the taxes imposed by said article for the taxable year (determined before application of any allowable credits against tax).

(2) If the taxes due under article thirteen-a of this chapter are not solely attributable to and the direct result of the taxpayer's qualified investment in a business or other activity taxable under said article, the amount of such taxes which are so attributable, shall be determined by multiplying the amount of taxes due under said article for the taxable year (determined before application of any allowable credits against tax), by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the qualified investment in a business or other activity taxable under said article. The denominator of the fraction shall be the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the business or other activity of the taxpayer that is taxable under said article.

(3) Any credits allowable under articles thirteen-d and thirteen-e of this chapter shall be applied against and reduce only the portion of article thirteen-a taxes not apportioned to the qualified investment under this article: Provided, That any excess credits may be applied against the amount of article thirteen taxes apportioned to the qualified investment under this article, that is not offset by the amount of annual credit against such taxes allowed under this article for the taxable year, unless their application is otherwise prohibited by this chapter.

(f) Telecommunications taxes. --

(1) On and after July 1, 1987, that portion of the allowable credit attributable to qualified investment in a business or other activity subject to the taxes imposed by article thirteen-b of this chapter, shall first be applied to reduce up to eighty percent of the taxes imposed by said article for the taxable year (determined before application of allowable credits against tax) and qualified investment in a business or activity that was subject to the taxes imposed by article twelve-a of this chapter prior to said first day of July, but on and after said first day of July is subject to the tax imposed by article thirteen-b of this chapter.

(2) If the taxes due under article thirteen-b of this chapter are not solely attributable to and the direct result of the taxpayer's qualified investment in a business or other activity taxable under said article, the amount of such taxes, which are so attributable, shall be determined by multiplying the amount of taxes due under said article for the taxable year (determined before application of any allowable credits against tax), by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state whose positions are directly attributable to the qualified investment in a business or other activity taxable under said article. The denominator of the fraction shall be the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state whose positions are directly attributable to the business or other activity of the taxpayer that is taxable under said article.

(g) Business franchise tax. --

(1) On and after July 1, 1987, that portion of the allowable credit attributable to qualified investment in a business or activity subject to the taxes imposed by article twenty-three of this chapter, and qualified investment in a business or activity that was subject to the taxes imposed by article thirteen of this chapter prior to said first day of July, but on and after said first day of July, is subject to the tax imposed by article twenty-three of this chapter, shall first be applied to reduce up to eighty percent of the taxes imposed by said article for the taxable year (determined after application of the credits against tax provided in section seventeen of said article, but before application of any other allowable credits against tax).

(2) If the taxes due under article twenty-three of this chapter are not solely attributable to and the direct result of the taxpayer's qualified investment in a business or other activity taxable under said article for the taxable year (determined after application of the credits against tax provided in section seventeen of said article, but before application of any other allowable credits), by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the qualified investment in a business or other activity taxable under said article. The denominator of the fraction shall be wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the business or other activity of the taxpayer that is taxable under said article.

(3) Any credits allowable under articles thirteen-d and thirteen-e of this chapter shall be applied against and reduce only the portion of article twenty-three taxes not apportioned to the qualified investment under this article: Provided, That any excess exemption or credits may be applied against the amount of article twenty-three taxes apportioned to the qualified investment under this article that is not offset by the amount of annual credit against such taxes allowed under this article for the taxable year, unless their application is otherwise prohibited by this chapter.

(h) Corporation net income taxes. --

(1) After application of subsections (c) through (g), both inclusive of this section, any unused credit shall next be applied to reduce up to eighty percent of the taxes imposed by article twenty-four of this chapter for the taxable year (determined before application of allowable credits against tax).

(2) If the taxes due under article twenty-four of this chapter (determined before application of allowable credits against tax) are not solely attributable to and the direct result of the taxpayer's qualified investment, the amount of such taxes which are so attributable, shall be determined by multiplying the amount of taxes due under said article for the taxable year (determined before application of allowable credits against tax), by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state whose positions are directly attributable to the qualified investment. The denominator of the fraction shall be the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state.

(3) Any credits allowable under article twenty-four of this chapter shall be applied against and reduce only the amount of article twenty-four taxes not apportioned to the qualified investment under this article: Provided, That any excess credits may be applied against the amount of article twenty-four taxes apportioned to the qualified investment under this article that is not offset by the amount of annual credit against such taxes allowed under this article for the taxable year, unless their application is otherwise prohibited by this chapter.

(i) Personal income taxes. --

(1) If the person making the qualified investment is an electing small business corporation (as defined in Section 1361 of the United States Internal Revenue Code of 1954, as amended), a partnership or a sole proprietorship, then any unused credit (after application of subsections (c), (d), (e), (f) and (g)) shall be allowed as a credit against up to eighty percent of the taxes imposed by article twenty-one of this chapter on the income from business or other activity subject to tax under article twelve-a, thirteen, thirteen-a, thirteen-b or twenty-three of this chapter.

(2) Electing small business corporations, partnerships and other unincorporated organizations shall allocate the credit allowed by this article among its members in the same manner as profits and losses are allocated for the taxable year.

(3) If the amount of taxes due under article twenty-one of this chapter (determined before application of allowable credits against tax) that is attributable to business, is not solely attributable to and the direct result of the qualified investment of the electing small business corporation, partnership, other unincorporated organization or sole proprietorship, the amount of such taxes which are so attributable shall be determined by multiplying the amount of taxes due under said article (determined before application of allowable credits against tax), that is attributable to business by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the electing small business corporation, partnership, other unincorporated organization or sole proprietorship employed in this state, whose positions are directly attributable to the qualified investment. The denominator of the fraction shall be the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer.

(4) No credit shall be allowed under this section against any employer withholding taxes imposed by article twenty-one of this chapter.

(j) For tax years beginning after December 31, 1992, and thereafter, if the formula provisions of subsections (c) through (i) of this section, inclusive, do not fairly represent the taxes solely attributable to and the direct result of the taxpayer's qualified investment of the taxpayer and all other project participants in the business or other activity subject to tax, the commissioner may require, in respect to all or any part of the taxpayer's businesses or activities, if reasonable:

(1) Separate accounting or identification; or

(2) Adjustment to the wages formula to reflect all components of the tax liability; or

(3) The inclusion of one or more additional factors which will fairly represent the taxes solely attributable to and the direct result of the qualified investment of the taxpayer and all other project participants in the businesses or other activities subject to tax; or

(4) The employment of any other method to effectuate an equitable attribution of the taxes.

In order to effectuate the purposes of this subsection, the commissioner shall propose for promulgation legislative rules in accordance with article three, chapter twenty-nine-a of this code: Provided, That the initial promulgation may be by emergency rule. The rule shall set forth the standards by which this subsection will be implemented and enforced: Provided, however, That with regard to investment placed in service prior to the passage of this provision, taxpayers having a specific written determination from the Tax Commissioner that the taxpayer is authorized or required to take credit against tax not attributable to qualified investment shall not be subject to the alternative allocation of credit provided for under this subsection.

(k) Sales and use taxes. --

On and after July 1, 1987, for purchases of tangible personal property and taxable services made on or after that date, that portion of the allowable credit, which is attributable to qualified investment in a business or activity subject to the taxes imposed by articles fifteen and fifteen-a of this chapter on purchases for use or consumption in the conduct of such business or activity, shall be applied to reduce up to eighty percent of the taxes imposed by said articles on purchases that are directly used or consumed in the qualified investment activity. When property and services purchased for use or consumption are not solely used or consumed in the qualified investment activity, the cost thereof shall be apportioned between such activities. Only that amount apportioned to purchases directly used or consumed in the qualified investment activity shall be included when applying the credit allowable under this subsection. On and after July 1, 1993, for purchases of tangible personal property and taxable services made on or after that date for use or consumption in the conduct of business, no portion of the allowable credit may be applied against the taxes imposed by said articles.

(l) Ad valorem property taxes; unemployment taxes and workers' compensation premiums. --

(1) After application of subsections (a) through (i), both inclusive, of this section, any unused credit shall be applied as a rebate for payment of the sum of the following amounts:

(A) Eighty percent of the ad valorem property taxes imposed by levying bodies pursuant to article eight of this chapter, for the taxable year (including payments in lieu of such taxes), on property of the taxpayer that is directly attributable to the qualified investment (including property having a useful life of less than four years) of the taxpayer, in the new or expanded business facility of the taxpayer resulting in new jobs; plus

(B) Eighty percent of the taxes imposed by article five, chapter twenty-one-a of this code for the taxable year attributable to the compensation of new employees filling the new jobs that are directly attributable to the qualified investment; plus

(C) Twenty percent of the workers' compensation premiums imposed by article two, chapter twenty-three of this code, for the taxable year attributable to the compensation paid new employees filling the new jobs, that are directly attributable to the qualified investment.

(2) A taxpayer eligible to claim this rebate shall apply either the amount of the unused credit or the sum determined under subdivision (1) of this subsection, whichever is less, against the remaining twenty percent of the taxes imposed by articles twelve-a, thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and twenty-four of this chapter, attributable to the qualified investment under this article. If any amount of rebate remains after its application against the remaining twenty percent of taxes as aforesaid, the amount remaining shall be carried forward to each ensuing tax year until used or the expiration of the twelfth subsequent tax year in which the qualified investment was placed in service or use in this state by the taxpayer.

(m) Unused credit forfeited. -- If any credit remains after application of subsection (b) of this section, the amount thereof shall be forfeited. No carryover to a subsequent taxable year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance, except as specifically provided in subsection (l), (o) or (p) of this section.

(n) Notwithstanding any provision of this section to the contrary and notwithstanding the reenactment of this section later in time than the enactment or reenactment of section fourteen of this article, the restrictions, limitations, constraints and provisions of said section shall apply to and supersede the provisions of this section.

(o) Deferral of twenty percent of annual credit, eighty percent current limitation. --

(1) Eighty percent of the amount of annual credit calculated under subsections (a) through (n) of this section before application of the minimum severance tax against coal and before the adjustment set forth in subsection (p) of this section, shall be applied against the taxes enumerated in subsections (c) through (i), inclusive, of this section for the current tax year.

(2) The remaining twenty percent of such annual credit so calculated in subsections (c) through (n) of this section shall be applied against the taxes enumerated in subsections (c) through (i), inclusive, of this section beginning in the tenth tax year subsequent to the tax year in which qualified investment was first placed in service or use in this state by the taxpayer, and the amount thereof remaining shall be carried forward each ensuing tax year until used or until the expiration of the twelfth tax year subsequent to the tax year in which qualified investment was first placed in service or use in this state by the taxpayer. No deferral of credit under this subsection shall apply to this credit when applied in such tenth through twelfth years.

(p) Additional allowance. --

(1) After application of up to eighty percent of annual credit against the taxes enumerated in subsections (c) through (i), inclusive, of this section for the current tax year under subsection (o) of this section, there shall be allowed an additional amount of credit, as determined under subdivision (2) of this subsection, which may offset up to one hundred percent of the remaining taxes enumerated in subsections (g), (h) and (i), in that order, of this section for the current tax year. Any credit calculated and determined under this section which remains after application against the taxes enumerated in subsections (g), (h) and (i) under this section shall be forfeited and shall not carryover to any other taxable year.

(2) The amount of credit allowable under this subsection shall be the lesser of one third of the taxpayer's minimum severance tax on coal payable, or the taxpayer's net minimum severance tax on coal payable. For purposes of this subsection, the term "net minimum severance tax on coal payable" means the amount of the excess of the minimum severance tax on coal over the amount of the state severance tax on coal severed and extracted by the taxpayer in this state not including the additional severance tax on coal imposed by section six, article thirteen-a of this chapter, calculated after application of the credit allowed under this article, and before application of all other credits, and after application of the $500 exemption to the said severance tax on coal.

(q) Effective date. --

(1) This section, as amended in the year 1986, shall be effective upon passage. It shall be retroactive, and shall be in lieu of the method provided by this section for application of this credit prior to this amendment, for qualified investment made on or after March 1, 1985.

(2) This section, as amended in the year 1987, shall be effective for taxable years ending after June 30, 1987.

(3) This section, as amended in the year 1993, shall be effective for taxable years ending after May 31, 1993.

§11-13C-6. Qualified investment.

(a) General. -- The qualified investment in property purchased or leased for business expansion shall be the applicable percentage of the cost of each property purchased or leased for the purpose of business expansion which is placed in service or use in this state by the taxpayer during the taxable year.

(b) Applicable percentage. -- For the purpose of subsection (a), the applicable percentage of any property shall be determined under the following table:

If useful life is: The applicable percentage is:

4 years or more but less than 6 years ...............33 1/3%

6 years or more but less than 8 years ...............66 2/3%

8 years or more ........................................100%

The useful life of any property, for purposes of this section, shall be determined as of the date such property is first placed in service or use in this state by the taxpayer, determined in accordance with federal income tax law.

(c) Cost. -- For purposes of subsection (a), the cost of each property purchased for business expansion shall be determined under the following rules:

(1) Trade-ins. -- Cost shall not include the value of property given in trade or exchange for the property purchased for business expansion.

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property shall not include any insurance proceeds received in compensation for the loss.

(3) Rental property.

(A) The cost of real property acquired by written lease for a primary term of ten years or longer shall be one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years.

(B) The cost of tangible personal property acquired by written lease for a primary term of:

(i) Four years, or longer, shall be one third of the rent reserved for the primary term of the lease;

(ii) Six years, or longer, shall be two thirds of the rent reserved for the primary term of the lease; or

(iii) Eight years, or longer, shall be one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years: Provided, That in no event shall rent reserved include rent for any year subsequent to expiration of the book life of the equipment, determined using the straight-line method of depreciation.

(4) Property purchased for multiple use. -- In the case of property purchased for use as a component part of a new or expanded business taxable under article twelve-a of this chapter, and use as a component part of a new or expanded business taxable under article thirteen of this chapter, the cost thereof shall be apportioned between such businesses. The amount apportioned to each such new or expanded business for which credit is allowed under this article, shall be considered as a qualified investment subject to the conditions and limitations of this article.

(5) Self-constructed property. -- In the case of self-constructed property, the cost thereof shall be the amount properly charged to the capital account for depreciation in accordance with federal income tax law.

(6) Transferred property. -- The cost of property used by the taxpayer out-of-state and then brought into this state, shall be determined based on the remaining useful life of the property at the time it is placed in service or use in this state, and the cost shall be the original cost of the property to the taxpayer less straight line depreciation allowable for the tax years or portions thereof taxpayer used the property outside this state. In the case of leased tangible personal property, cost shall be based on the period remaining in the primary term of the lease after the property is brought into this state for use in a new or expanded business facility of the taxpayer, and shall be the rent reserved for the remaining period of the primary term of the lease, not to exceed twenty years, or the remaining useful life of the property (determined as aforesaid), whichever is less.

(7) Natural resources in place. -- In the case of natural resources in place, the property must be capable of sustained production for a period of at least ten years. If this qualification is met, then the qualified investment is one hundred percent of the purchase price of the natural resource in place that is attributable to ten years of production, but not more than twenty years of production. If such price is not quantifiable at the time the mining operation is placed into production, cost shall be determined annually and shall be the amount of royalties actually paid to the owner of the natural resource in place during each year for a total period of ten years. The amount of such royalties multiplied by the taxpayer's new jobs percentage (determined at the time the mining operation is placed in service or use) divided by ten establishes the credit allowable each year for ten successive years beginning with the year in which the royalties were paid.

§11-13C-7. New jobs percentage.

(a) In general. -- The new jobs percentage is based on the number of new jobs created in this state that are directly attributable to the qualified investment of the taxpayer.

(b) Applicable percentage. -- For the purpose of subsection (a), the applicable new jobs percentage shall be determined under the following table:

If number ofThe applicable

new jobs is:percentage is:

1,00090%

76080%

52070%

28060%

5050%

(c) When a job is attributable. -- An employee's position is directly attributable to the qualified investment if:

(1) The employee's service is performed or his base of operations is at the new or expanded business facility;

(2) The position did not exist prior to the construction, renovation, expansion or acquisition of the business facility and the making of the qualified investment; and

(3) But for the qualified investment, the position would not have existed.

(d) Certification of new jobs. -- With the annual return for the taxes imposed by article twelve-a or thirteen of this chapter, filed for the taxable year in which the qualified investment is first placed in service or use in this state, the taxpayer shall estimate and certify the number of new jobs reasonably projected to be created by it in this state within the period prescribed in subsection (f), that are, or will be, directly attributable to the qualified investment of the taxpayer: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen (or both) of this chapter" shall mean "taxes imposed by articles thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and twenty-four of this chapter (or any one or combination of such articles of this chapter)."

(e) Equivalency of permanent employees. -- The hours of part-time employees shall be aggregated to determine the number of equivalent full-time employees for the purpose of subsection (b) hereof but not for the purposes of subsection (c) hereof.

(f) Redetermination of new jobs percentage. -- With the annual return for the taxes imposed by article twenty-one or twenty-four of this chapter, filed for the third taxable year in which the qualified investment is in service or use, the taxpayer shall certify the actual number of new jobs created by it in this state, that are directly attributable to the qualified investment of the taxpayer: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen (or both) of this chapter" shall mean "taxes imposed by articles thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and twenty-four of this chapter (or any one or combination of such articles of this chapter)."

(1) If the actual number of jobs created would result in a higher new jobs percentage, the credit allowed under this article shall be redetermined and amended returns filed for the first and second taxable years that the qualified investment was in service or use in this state.

(2) If the actual number of jobs created would result in a lower new jobs percentage, the credit previously allowed under this article shall be redetermined and amended returns filed for the first and second taxable years. In applying the amount of redetermined credit allowable for the two preceding taxable years, the redetermined credit shall first be applied to the extent it was originally applied in such prior two years to personal income taxes, then to corporation net income taxes, then to business franchise taxes, then to telecommunications taxes, then to severance taxes, then to carrier income taxes and lastly to business and occupation taxes. Any additional taxes due under this chapter shall be remitted with the amended returns filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty, which may be waived by the Tax Commissioner if the taxpayer shows that the overclaimed amount of the new jobs percentage was due to reasonable cause and not due to willful neglect.

§11-13C-7a. Small business credit.

(a) "Small business" defined. -- For purposes of this section, the term "small business" means a business which has an annual payroll of $1,500,000 or less, or annual gross sales of not more than $5,000,000: Provided, That beginning January 1, 1989, and each January 1 thereafter, the Tax Commissioner shall prescribe amounts which shall apply in lieu of the above amounts during that calendar year. These amounts shall be prescribed by increasing the amount of each by the cost-of-living adjustment for such calendar year. The requirements for annual payroll and annual gross receipts, once met by a given taxpayer in that taxable year when qualified investment is first placed in service or use shall not again be applied to that same taxpayer in subsequent years to defeat the small business credit to which the taxpayer gained entitlement in that year. However, the median compensation requirements applicable to any small business, except a small business entitled to a certified project credit, shall be determined when qualified investment is first placed in service or use; and subsequently redetermined inflation adjusted amounts for median compensation for each year shall be the requirements applicable to that small business for each year throughout the ten-year credit period and any further carryover or other extended credit period for the original credit to which the requirements relate.

(1) Cost-of-living adjustment. -- For purposes of subsection (a), the cost-of-living adjustment for any calendar year is the percentage (if any) by which:

(A) The consumer price index for the preceding calendar year exceeds;

(B) The consumer price index for the calendar year 1987.

(2) Consumer price index for any calendar year. -- For purposes of subdivision (1), the consumer price index for any calendar year is the average of the federal consumer price index as of the close of the twelve-month period ending on the thirty-first day of August of such calendar year.

(3) Consumer price index. -- For purposes of subdivision (2), the term "Federal Consumer Price Index" means the last consumer price index for all urban consumers published by the United States department of labor.

(4) Rounding. -- If any increase under subdivision (1) is not a multiple of $50, such increase shall be rounded to the next lowest multiple of $50.

(b) Amount of credit allowed.

(1) Credit allowed. -- An eligible small business taxpayer shall be allowed a credit against the portion of taxes imposed by this state that are attributable to and the direct consequence of the eligible small business taxpayer's qualified investment in a new or expanded business in this state which results in the creation of at least ten new jobs. The amount of this credit shall be determined as provided in this section.

(2) Amount of credit. -- The amount of credit allowable under this section is determined by dividing the amount of the eligible small business taxpayer's "qualified investment" (determined under section six) in "property purchased for business expansion" (as defined in section three) by ten. The amount of qualified investment so apportioned to each year of the ten-year credit period shall be the annual measure against which taxpayer's annual new jobs percentage (determined under subsection (d)) is applied. The product of this calculation establishes the maximum amount of credit allowable each year for ten consecutive years under this section due to the qualified investment.

(3) Application of credit. -- The annual credit allowance must be taken beginning with the taxable year in which the taxpayer places the qualified investment into service or use in this state, unless the taxpayer elects to delay the beginning of the ten-year credit period until the next succeeding taxable year. This election shall be made in the annual income tax return filed under this chapter by the taxpayer for the taxable year in which the qualified investment is placed in service or use. Once made, this election cannot be revoked. The annual credit allowance shall be taken and applied in the manner prescribed in section five.

(c) New jobs. -- The term "new jobs" has the meaning ascribed to it in subdivision (14), subsection (b), section three of this article: Provided, That the median compensation of such new jobs shall not be less than $11,000 per year and that beginning January 1, 1989, and each January 1 thereafter, the Tax Commissioner shall adjust the median annual compensation specified in this subsection by increasing the amount thereof by the annual cost-of-living adjustment determined under subsection (a).

(1) The term "new employee" shall have the meaning ascribed to it in subdivision (13), subsection (b), section three of this article: Provided, That such term shall not include employees filling new jobs who:

(A) Are related individuals, as defined in subsection (i), section 51 of the Internal Revenue Code of 1986, or a person who owns ten percent or more of the business with such ownership interest to be determined under rules set forth in subsection (b), section 267 of said Internal Revenue Code; or

(B) Worked for the taxpayer during the six-month period ending on the date taxpayer's qualified investment is placed in service or use and is rehired by the taxpayer during the six-month period beginning on the date taxpayer's qualified investment is placed in service or use.

(2) When a job is attributable. -- An employee's position is directly attributable to the qualified investment if:

(A) The employee's service is performed or his or her base of operations is at the new or expanded business facility;

(B) The position did not exist prior to the construction, renovation, expansion or acquisition of the business facility and the making of the qualified investment; and

(C) But for the qualified investment, the position would not have existed.

(d) New jobs percentage. -- The annual new jobs percentage is based on the number of new jobs created in this state by the taxpayer that is directly attributable to taxpayer's qualified investment.

(1) If at least ten new jobs are created and filled during the taxable year in which the qualified investment is placed in service or use, the applicable new jobs percentage shall be thirty percent: Provided, That for each new job over ten, up to forty such additional new jobs, the applicable new jobs percentage shall be increased by adding thereto one half of one percent, with the maximum new jobs percentage not to exceed fifty percent.

(2) During each of the remaining nine years of the ten-year credit period, the annual new jobs percentage shall be based on the average number of new jobs that were filled during that taxable year: Provided, That for purposes of estimating the new jobs percentage that will be applicable for each subsequent credit year, the taxpayer shall use the new jobs percentage allowable for the taxable year immediately prior thereto, and in the annual income tax return filed under this chapter for the then current tax year, taxpayer shall redetermine his or her allowable new jobs percentage for that year based on the average number of new employees employed in new jobs during that year (determined on a monthly basis) created as the direct result of taxpayer's qualified investment.

(e) Certification of new jobs. -- With the annual income tax return filed under this chapter for each taxable year during the ten-year credit period, the taxpayer shall certify:

(1) The new jobs percentage for that taxable year;

(2) The amount of the credit allowance for that year;

(3) If the business is a partnership or electing small business corporation, the amount of credit allocated to the partners or shareholders, as the case may be;

(4) That qualified investment property continue to be used in the business, or if any of it was disposed of during the year the date of disposition and that such property was not disposed of prior to expiration of its useful life, as determined under section six;

 (5) That the new jobs created by the qualified investment continue to exist and are filled by persons who meet the definition of new employee (as defined in subdivision (1), subsection (c) of this section) and are paid an average annual compensation equal to or greater than the minimum average annual compensation required by this section.

(f) Small business project. -- A small business may apply to the Tax Commissioner under section four-b for certification of subdivision (1), subsection (a), section four-b project if that project will create at least ten new jobs.

(g) Regulations. -- The Tax Commissioner shall prescribe such regulations as he or she may deem necessary in order to determine the amount of credit allowed under this section to a taxpayer; to verify taxpayer's continued entitlement to claim such credit; and to verify proper application of the credit allowed. The Tax Commissioner may, by regulation, require a taxpayer intending to claim credit under this section to file with the Tax Commissioner a notice of intent to claim this credit, before the taxpayer begins reducing his or her monthly or quarterly installment payments of estimated tax for the credit provided in this section.

(h) Effective date.

(1) The credit provided in this section shall be allowed for qualified investment property purchased or leased after June 30, 1987.

(2) The amendments to this section, enacted in the year 1998, shall be retroactive to tax years beginning on or after January 1, 1995.

§11-13C-8. Forfeiture of unused tax credits; redetermination of credit allowed.

(a) Disposition of property or cessation of use. -- If during any taxable year, property with respect to which a tax credit has been allowed under this article:

(1) Is disposed of prior to the end of its useful life, as determined under section six of this article; or

(2) Ceases to be used in an eligible business of the taxpayer in this state prior to the end of its useful life, as determined under said section six, then the unused portion of the credit allowed for such property shall be forfeited for the taxable year and all ensuing years. Additionally, except when the property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, the taxpayer shall redetermine the amount of credit allowed in all earlier years by reducing the applicable percentage of cost of such property allowed under said section six, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state in the new or expanded business of the taxpayer. Taxpayer shall then file a reconciliation statement with its annual business and occupation tax return or carrier income tax return, for the year in which the forfeiture occurs and pay any additional taxes owed due to reduction of the amount of credit allowable for such earlier years, plus interest and any applicable penalties: Provided, That for taxable periods beginning on or after July 1, 1987, such reconciliation statement shall be filed with the annual return for the primary tax for which the taxpayer is liable under articles thirteen, thirteen-a, thirteen-b and twenty-three of this chapter.

(b) Cessation of operation of business facility. -- If during any taxable year the taxpayer ceases operation of a business facility in this state for which credit was allowed under this article, before expiration of the useful life of property with respect to which tax credit has been allowed under this article, then the unused portion of the allowed credit shall be forfeited for the taxable year and all ensuing years. Additionally, except when the cessation is due to fire, flood, storm or other casualty, the taxpayer shall redetermine the amount of credit allowed in earlier years by reducing the applicable percentage of cost of such property allowed under section six, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state in a business of the taxpayer that is taxable under article twelve-a or thirteen of this chapter. Taxpayer shall then file a reconciliation statement with its annual business and occupation tax return or carrier income tax return for the year in which the forfeiture occurs, and pay any additional taxes owed due to reduction of the amount of credit allowable for such earlier years, plus interest and any applicable penalties: Provided, That for taxable periods beginning on or after July 1, 1987, such reconciliation statement shall be filed with the annual return for the primary tax for which the taxpayer is liable under articles thirteen, thirteen-a, thirteen-b and twenty-three of this chapter.

(c) Reduction in number of employees. -- If during any taxable year subsequent to the taxable year in which the new jobs percentage is redetermined as provided in section seven of this article, the average number of employees of the taxpayer, for the then current taxable year, employed in positions created because of and directly attributable to the qualified investment falls below the minimum number of new jobs created upon which the taxpayer's annual credit allowance is based, the taxpayer shall calculate what his annual credit allowance would have been had his new jobs percentage been determined based upon the average number of employees, for the then current taxable year, employed in positions created because of and directly attributable to the qualified investment. The difference between the result of this calculation and the taxpayer's annual credit allowance for the qualified investment as determined under section four of this article, shall be forfeited for the then current taxable year, and for each succeeding taxable year unless for such succeeding taxable year the taxpayer's average employment in positions directly attributable to the qualified investment once again meets the level required to enable the taxpayer to utilize its full annual credit allowance for that taxable year.

§11-13C-8a. Recapture of credit; recapture tax imposed.

(a) When recapture tax applies. --

(1) Any person who places business investment and jobs expansion tax credit property in service or use after March 12, 1994, and who fails to use such qualified investment property for at least the period of its useful life (determined as of the time the property was placed in service or use), or the period of time over which tax credits allowed under this article with respect to such property are applied under this article, which ever period is less, and who reduces the number of its employees filling new jobs in its business in this state, which were created and are directly attributable to the qualified investment property, after the third taxable year in which the qualified investment property was placed in service or use, or fails to continue to employ individuals in all the new jobs created as a direct result of the qualified investment property and used to qualify for the credit allowed by this article, prior to the end of the tenth taxable year after the qualified investment property was placed in service or use, such person shall pay the recapture tax imposed by subsection (b) of this section.

(2) This section shall not apply when section nine of this article applies. However, the successor, or the successors, and the person, or persons, who previously claimed credit under this article with respect to such qualified investment property and the new jobs attributable thereto, shall be jointly and severally liable for payment of any recapture tax subsequently imposed under this section with respect to such qualified investment property and new jobs.

(b) Recapture tax imposed. --

The recapture tax imposed by this subsection shall be the amount determined as follows:

(1) Full recapture. -- If taxpayer prematurely removes qualified investment property placed in service after March 12, 1994, (when considered as a class) from economic service in such taxpayer's qualified investment business activity in this state, and the number of employees filling the new jobs created by such person falls below fifty, taxpayer shall recapture the amount of credit claimed under section five of this article for the taxable year, and all preceding taxable years, on qualified investment property which has been prematurely removed from service. The amount of tax due under this subdivision of subsection (b) shall be an amount equal to the amount of credit that is recaptured under this subdivision (1).

(2) Partial recapture. -- If taxpayer prematurely removes qualified investment property placed in service after March 12, 1994, (when considered as a class) from economic service in such taxpayer's qualified investment business activity in this state, and the number of employees filling the new jobs created by such person remains fifty or more, but falls below the number necessary to sustain continued application of credit determined by use of the new job percentage upon which such taxpayer's one-tenth annual credit allowance was determined under section four, or seven-a of this article, taxpayer shall recapture an amount of credit equal to the difference between (A) the amount of credit claimed under section five of this article for the taxable year, and all preceding taxable years, and (B) the amount of credit that would have been claimed in such years if the amount of credit allowable under section four, or seven-a of this article had been determined based on the qualified investment property which remains in service using the average number of new jobs filled by employees in the taxable year for which recapture occurs. The amount of tax due under this subdivision of subsection (b) shall be an amount equal to the amount of credit that is recaptured under this subdivision (2).

(3) Additional recapture. -- If after a partial recapture under subdivision (2) of this subsection, such taxpayer further reduces the number of employees filling new jobs below fifty, taxpayer shall recapture an additional amount determined as provided under subdivision (1) of this subsection. The amount of tax due under this subdivision of subsection (b) shall be an amount equal to the amount of credit that is recaptured under this subdivision (3).

(c) Recapture of credit allowed for projects. -- The Tax Commissioner shall file in the West Virginia register by July 1, 1994, an emergency legislative regulation explaining how the rules of this section shall be applied in the case of projects certified under section four-b of this article.

(d) Payment of recapture tax. -- The amount of tax recaptured under this section shall be due and payable on the day such person's annual return is due for the taxable year in which this section applies, under article twenty-one, or twenty-four, of this chapter. When the employer is a partnership, or s corporation, for federal income tax purposes, the recapture tax shall be paid by those persons who are partners in such partnership, or shareholders in such s corporation, in the taxable year in which recapture occurs under this section.

(e) Regulations. -- The Tax Commissioner shall promulgate such legislative regulations as may be necessary to carry out the purpose of this section and to implement the intent of the Legislature. Such regulations shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§11-13C-9. Transfer of qualified investment to successors.

(a) Mere change in form of business. -- Property shall not be treated as disposed of under section eight of this article, by reason of a mere change in the form of conducting the business as long as the property is retained in a business in this state, and the taxpayer retains a controlling interest in the successor business. In this event, the successor business shall be allowed to claim the amount of credit still available with respect to the business facility or facilities transferred, and the taxpayer (transferor) shall not be required to redetermine the amount of credit allowed in earlier years.

(b) Transfer or sale to successor. -- Property shall not be treated as disposed of under section eight by reason of any transfer or sale to a successor business which continues to operate the business facility in this state. Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this article for each subsequent taxable year and the taxpayer (transferor) shall not be required to redetermine the amount of credit allowed in earlier years.

§11-13C-10. Identification of investment credit property.

Every taxpayer who claims credit under this article shall maintain sufficient records to establish the following facts for each item of qualified property:

(1) Its identity;

(2) Its actual or reasonably determined cost;

(3) Its straight-line depreciation life;

(4) The month and taxable year in which it was placed in service;

(5) The amount of credit taken; and

(6) The date it was disposed of or otherwise ceased to be qualified property.

§11-13C-11. Failure to keep records of investment credit property.

A taxpayer who does not keep the records required for identification of investment credit property, is subject to the following rules:

(1) A taxpayer shall be treated as having disposed of, during the taxable year, any investment credit property which the taxpayer cannot establish was still on hand, in this state, at the end of that year.

(2) If a taxpayer cannot establish when investment credit property reported for purposes of claiming this credit returned during the taxable year was placed in service, the taxpayer shall be treated as having placed it in service in the most recent prior year in which similar property was placed in service, unless the taxpayer can establish that the property placed in service in the most recent year is still on hand. In that event, the taxpayer will be treated as having placed the returned property in service in the next most recent year.

§11-13C-12. Interpretation and construction.

(a) No inference, implication or presumption of legislative construction or intent shall be drawn or made by reason of the location or grouping of any particular section, provision or portion of this article; and no legal effect shall be given to any descriptive matter or heading relating to any section, subsection or paragraph of this article.

(b) The provisions of this article shall be liberally construed in order to effectuate the legislative intent recited in section two of this article.

§11-13C-13. Severability.

(a) If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby.

(b) If any provision of this article or the application thereof shall be made invalid or inapplicable by reason of the failure of the Legislature to enact any statute therein addressed or referred to, or by reason of the repeal or any other invalidation of any statute therein addressed or referred to, such failure to reenact on such repeal or invalidation of any such statute shall not affect, impair or invalidate the remainder of the said article, but shall be confined in its operation to the provision thereof directly involved with, pertaining to, addressing or referring to the said statute, and the application of such provision with regard to other statutes or in other instances not affected by any such invalid or repealed statute shall not be abrogated or diminished in any way.

§11-13C-14. Restrictions and limitations on credits allowed by this article.

(a) Findings. -- The Legislature finds that the tax credits allowed under provisions of this article heretofore enacted have not effectively and efficiently increased employment through investment in certain industry segments; that while there has been a significant net decrease in employment in the coal industry in recent years the amount of credit being claimed by producers of coal has significantly increased; that the increasing cost of the credits allowed by this article to coal producers is eroding the state's ability to reasonably fund essential state services such as public education, public safety and basic human services; and that this erosion will continue unless remedial legislation is enacted.

(b) Construction. -- The rule of statutory construction codified in subsection (b), section twelve of this article, is hereby replaced with a rule of reasonable construction in which the burden of proof is on the taxpayer to establish by clear and convincing evidence that the taxpayer is entitled to the benefits allowed by this article.

(c) Credit not to be applied against severance taxes.

(1) Notwithstanding any provision in this chapter to the contrary, no credit shall be allowed against the taxes imposed by article thirteen-a of this chapter for taxable years ending on or after March 10, 1990, unless one of the transition rules in paragraph (2) of this subsection (c) applies.

(2) Transition rules. -- The general rule stated in paragraph (1) of this subsection (c) shall not apply:

(A) To qualified investment property placed in service or use prior to March 10, 1990.

(B) To property purchased or leased for business expansion that is placed in service or use on or after March 10, 1990, if at least one of the following clauses applies to such property:

(i) The new or expanded business facility was constructed, reconstructed or erected, pursuant to a written construction contract executed prior to March 10, 1990, as limited to the provisions of such contract as of such date then binding on the taxpayer, but only to the extent such new or expanded business facility is placed in service or use prior to January 1, 1992.

(ii) The new or expanded business facility which is part of a project described in paragraph (1), subsection (a), section four-b of this article, was constructed, reconstructed or erected, pursuant to a written construction contract executed prior to March 10, 1990, as limited to the provisions of such contract as of such date then binding on the taxpayer: Provided, That only that portion of the contract price attributable to that percentage of the construction contract completed prior to January 1, 1992, (determined under principles set forth in Section 460(b) of the Internal Revenue Code of 1986, as in effect before March 10, 1990, which is placed in service or use prior to January 1, 1994, may be treated as property purchased for business expansion under section six of this article.

(iii) The new or expanded business facility was purchased or leased pursuant to a written contract executed prior to March 10, 1990, as limited to the provisions then binding on the taxpayer as of such date, but only to the extent such new or expanded business facility is placed in service or use prior to January 1, 1992.

(iv) The machinery or equipment or other tangible personal property purchased or leased for business expansion at a new or expanded business facility was purchased or leased by the taxpayer pursuant to a written contract to purchase or lease identifiable tangible personal property executed before March 10, 1990, as limited to the provisions of such written contract then binding on the taxpayer, but only to the extent the tangible personal property purchased or leased under such contract is placed in service or use before January 1, 1992: Provided, That when such tangible personal property is purchased or leased as aforesaid as part of a project described in clause (ii) of this subparagraph (B), such tangible personal property must be placed in service or use prior to January 1, 1994, to be treated as property purchased or leased for business expansion under section six of this article.

(C) To property purchased or leased for business expansion that is placed in service or use on or after March 10, 1990, as part of a project otherwise eligible for the credit under subsection (a), section four-b of this article, if all of the requirements of clauses (i), (ii), (iii) and (iv) of this subparagraph are satisfied:

(i) The taxpayer and other participants in the project, if any, have made investments in property purchased or leased for business expansion as defined in subsection (b)(19), section three of this article prior to March 10, 1990, in excess of $10,000,000.

(ii) The investments described in clause (i) were made pursuant to a plan for an integrated project to be developed over a period of one or more years and with the expectation of making additional investments in the integrated project.

(iii) The portion of the project constructed, purchased or leased after March 10, 1990, meets the definition of new business facility in subsection (e)(3) of this section.

(iv) The new jobs created by the project after March 10, 1990, are filled by new employees as defined in subsection (e) (4) of this section.

(3) Notice of claim under transition rules.

(A) Notice required. -- Any person intending to assert a claim for credit based, in whole or in part, on application of the transition rules in subparagraph (B) or (C), paragraph (2) of this subsection (c), shall file written notice of such intention with the Tax Commissioner on or before July 1, 1990. In the case of a multiparticipant project, this notice may be filed by the managing project participant on behalf of all participants in such project. Such notice shall be in a form prescribed by the Tax Commissioner and all information required by such form shall be provided.

(B) Failure to file notice. -- If any person fails to timely file the notice required by this paragraph (3), such person shall be precluded from claiming credit under this article for such investment.

(d) Treatment of successor project participants. -- Whenever a participant in a project certified under paragraph (2) or (3), subsection (a), section four-b of this article, is replaced by another participant in that project on or after March 10, 1990, the tax credits available to such successor participant as a result of the transfer shall not exceed the amount of credits that would have been available to the predecessor participant had the transfer to the successor participant not occurred: Provided, That if the project plan provides for annual recalculation of the division of the credit allowable for each year among the participants in the project in order to maximize the collective use of such credit by the project participants, or for any other purpose, then the credit available to the successor participant as a result of the transfer shall be limited each year to the amount of credit actually used by the predecessor participant to offset taxes for the taxable year immediately preceding the taxable year in which such participant's obligations or interest in the project, as described in the project plan certified by the Tax Commissioner, passed to the successor participant in the project.

(e) Certain terms redefined. -- Notwithstanding the provisions of subsection (b), section three of this article, or any other provision of this article, to the contrary, the following terms have the meanings assigned to them by this section.

(1) Construction contract. -- The term "construction contract" means any contract for the building, construction, reconstruction or rehabilitation of, or the installation of any integral components to, or improvements of, a new or existing business facility.

(2) Excluded property. -- The term "property purchased or leased for business expansion" shall not include:

(A) Property owned or leased by the taxpayer and for which the taxpayer was previously allowed tax credit for industrial expansion, tax credit for industrial revitalization, tax credit for coal loading facilities or the tax credits allowed by this article.

(B) Property owned or leased by the taxpayer and for which the seller, lessor, or other transferor, was previously allowed tax credit for industrial expansion, tax credit for industrial revitalization, tax credit for coal loading facilities, or the tax credits allowed by this article.

(C) Repair costs, including materials used in the repair, unless for federal income tax purposes the cost of the repair must be capitalized and not expensed.

(D) Airplanes.

(E) Property which is primarily used outside this state, with use being determined based upon the amount of time the property is actually used both within and without this state.

(F) Property which is acquired incident to the purchase of the stock or assets of the seller, unless for good cause shown, the Tax Commissioner consents to waiving this requirement.

(G) Natural resources in place purchased or leased prior to March 1, 1985, or purchased or leased after such date pursuant to an option to purchase or lease such natural resources in place acquired prior to such date but exercised, in whole or in part, on or after March 10, 1990; and natural resources in place purchased or leased on or after March 10, 1990, unless pursuant to a written contract to purchase or lease executed prior to the passage of this section.

(H) Property purchased or leased on or after March 10, 1990, unless pursuant to a written contract to purchase or lease executed prior to the passage of this section, the cost or consideration for which cannot be quantified with any reasonable degree of accuracy at the time such property is placed in service or use: Provided, That when the contract of purchase or lease specifies a minimum purchase price or minimum annual rent the amount thereof shall be used to determine the qualified investment in such property under section six of this article if the property otherwise qualifies as property purchased or leased for business expansion.

(3) New business facility. -- The term "new business facility" means a business facility which satisfies all the requirements of subparagraphs (A), (B), (C) and (D) of this paragraph.

(A) The facility is employed by the taxpayer in the conduct of a business the net income of which is or would be taxable under article twenty-one or twenty-four of this chapter. Such facility shall not be considered a new business facility in the hands of the taxpayer if the taxpayer's only activity with respect to such facility is to lease it to another person or persons.

(B) Such facility is purchased by, or leased to, the taxpayer after March 1, 1985.

(C) The facility was not purchased or leased by the taxpayer from a related person or a project participant, or related person of a project participant, in any certified project in which the taxpayer is a participant. The Tax Commissioner may waive this requirement if the facility was acquired from a related party for its fair market value and the acquisition was not tax motivated.

(D) Such facility was not in service or use during the ninety days immediately prior to transfer of the title to such facility, or prior to the commencement of the term of the lease of such facility: Provided, That this ninety-day period may be waived by the Tax Commissioner if the commissioner determines that persons employed at the facility may be treated as "new employees" as that term is defined under paragraph (4) of this subsection.

(4) New employee.

(A) The term "new employee" means a person residing and domiciled in this state, hired by the taxpayer to fill a position or a job in this state which previously did not exist in taxpayer's business enterprise in this state prior to the date on which the taxpayer's qualified investment is placed in service or use in this state. In no case shall the number of new employees directly attributable to such investment for purposes of this credit exceed the total net increase in the taxpayer's employment in this state: Provided, That with respect to taxpayers who file application for certification after March 10, 1990, the Tax Commissioner may require that the net increase in the taxpayer's employment in this state be determined and certified for the taxpayer's controlled group; and in the case of a project involving more than one person for the controlled groups of all participants, taken as a whole: Provided, however, That persons filling jobs saved as a direct result of taxpayer's qualified investment in property purchased or leased for business expansion on or after March 10, 1990, may be treated as new employees filling new jobs if the taxpayer certifies the material facts to the Tax Commissioner and the Tax Commissioner expressly finds that:

(i) But for the new employer purchasing the assets of a business in bankruptcy under chapter seven or eleven of the United States bankruptcy code and such new employer making qualified investment in property purchased or leased for business expansion, the assets would have been sold by the United States bankruptcy court in a liquidation sale and the jobs so saved would have been lost; or

(ii) But for taxpayer's qualified investment in property purchased or leased for business expansion in this state, taxpayer would have closed its business facility in this state and the employees of the taxpayer located at such facility would have lost their jobs: Provided, That the Tax Commissioner shall not make this certification unless the Tax Commissioner finds that the taxpayer is insolvent as defined in 11 U.S.C. §101 (31) or that the taxpayer's business facility was destroyed, in whole or in significant part, by fire, flood or other act of God.

(B) A person shall be deemed to be a "new employee" only if such person's duties in connection with the operation of the business facility are on:

(i) A regular, full-time and permanent basis.

(I) "Full-time employment" means employment for at least one hundred forty hours per month at a wage not less than the prevailing state or federal minimum wage, depending on which minimum wage provision is applicable to the business;

(II) "Permanent employment" does not include employment that is temporary or seasonal and therefore the wages, salaries and other compensation paid to such temporary or seasonal employees will not be considered for purposes of sections five and seven of this article; or

(ii) A regular, part-time and permanent basis: Provided, That such person is customarily performing such duties at least twenty hours per week for at least six months during the taxable year.

(5) Leased property. -- The term "leased property" does not include property which the taxpayer is required to show on its books and records as an asset under generally accepted principles of financial accounting. If the taxpayer is prohibited from expensing the lease payments for federal income tax purposes, the property shall be treated as purchased property under this section if the property was purchased on or after March 10, 1990.

(6) Small business. -- The term "small business" means a small business which has an annual payroll of $1,700,000 or less, and annual gross receipts of not more than $5,500,000: Provided, That on or before January 15, 1991, and on or before each January 15 thereafter, the Tax Commissioner shall prescribe amounts which shall apply in lieu of the above amounts for taxable years beginning on or after January 1, of the calendar year in which determination is made. The prescribed amounts shall be determined in accordance with section seven-a of this article and notice thereof shall be filed in the state register. The requirements for annual payroll and annual gross receipts, once met by a given taxpayer in that taxable year when qualified investment is first placed in service or use shall not again be applied to that same taxpayer in subsequent years to defeat the small business credit to which the taxpayer gained entitlement in that year. However, the median compensation requirements applicable to any small business, except a small business entitled to a certified project credit, shall be determined when qualified investment is first placed in service or use; and subsequently redetermined inflation adjusted amounts for median compensation for each year shall be the requirements applicable to that small business for each year throughout the ten-year credit period and any further carryover or other extended credit period for the original credit to which the requirements relate. For purposes of this definition:

(A) Annual payroll. -- The annual payroll of a business shall include the employees of its domestic and foreign affiliates, whether employed on a full-time, part-time, temporary, or other basis, during the preceding twelve months. If a business has not been in existence for twelve months, the payroll of the business shall be divided by the number of weeks, including fractions of a week, that it has been in business, and the result multiplied by fifty-two. That amount shall then be added to the twelve month payrolls of its domestic and foreign affiliates to determine the annual payroll of the business for purposes of this section.

(B) Annual gross receipts. -- The annual gross receipts of a business shall include the annual gross receipts of its foreign and domestic affiliates.

(i) The "annual gross receipts" of a business which has been in business for three or more complete fiscal years means the annual gross revenues of the business for the last three fiscal years. For purposes of this definition, the gross revenues of the business includes revenues from sales of tangible personal property and services, interest, rents, royalties, fees, commissions and receipts from any other source, but less returns and allowances, sales of fixed assets, interaffiliated transactions between a business and its domestic and foreign affiliates, and taxes collected for remittance to a third party, as shown on its books for federal income tax purposes.

(ii) The annual receipts of a business that has been in business for less than three complete fiscal years means its total receipts for the period it has been in business, divided by the number of weeks including fractions of a week that it has been in business, and multiplied by fifty-two.

(C) Affiliates. -- The term "affiliates" includes all concerns which are affiliates of each other when either directly or indirectly: (i) One concern controls or has the power to control the other; or (ii) a third party or parties controls or has the power to control both. In determining whether concerns are independently owned and operated and whether or not affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

(D) Concern. -- The term "concern" means any business entity organized for profit (even if its ownership is in the hands of a nonprofit entity), having a place of business located in this state, and which makes a contribution to the economy of this state through payment of taxes, or the sale or use in this state of tangible personal property, or the procurement or providing of services in this state, or the hiring of employees who work in this state. "Concern" includes, but is not limited to, any person as defined in paragraph (18), subsection (b), section three of this article.

(f) Application for credit required.

(1) Application required. -- Notwithstanding any provision of this article to the contrary, no credit shall be allowed or applied under this article for any qualified investment property placed in service or use on or after January 1, 1990, until the person asserting a claim for the allowance of credit under this article makes written application to the Tax Commissioner for allowance of credit as provided in this subsection and receives written acknowledgment of its receipt from Tax Commissioner: Provided, That in the case of a multiparticipant project this notice may be filed by the managing project participant on behalf of all participants in that project. An application for credit shall be filed no later than the last day of the due date, without extensions, for filing the tax returns required under article twenty-one or twenty-four of this chapter for the taxable year in which the property to which the credit relates is placed in service or use and all information required by such form shall be provided.

(2) Failure to file. -- The failure to timely apply for the credit shall result in the forfeiture of fifty percent of the annual credit allowance otherwise allowable under this article. This penalty shall apply annually until such application is filed.

(g) Effective date.

(1) Except as otherwise expressly provided in this section, the provisions of this section shall apply to property placed in service or use on or after March 10, 1990, notwithstanding any provision of prior law which may be in conflict with this section. In the case of any such ambiguity, the provisions of this section shall control resolution of such ambiguity.

(2) The amendments to this section enacted in the year, 1998, shall be retroactive, and shall be effective for tax years beginning on or after January 1, 1995.

§11-13C-15. Continuing suspension of new credit entitlements, exceptions, effective date.

(a) Notwithstanding any other provision of this article to the contrary, no entitlement to the business investment and jobs expansion tax credit under this article shall result from, and no credit shall be available to any taxpayer for, investment placed in service or use after April 10, one thousand nine hundred ninety-three.

(b) The suspension of new entitlements to credits set forth in subsection (a) of this section shall not apply to companies, entities or taxpayers engaged in the following industries or business activities:

(1) Manufacturing, including, but not limited to, chemical processing and chemical manufacturing, manufacture of wood products and forestry products, manufacture of aluminum, manufacture of paper, paper processing, recyclable paper processing, food processing, manufacture of aircraft or aircraft parts, manufacture of automobiles or automobile parts, and all other manufacturing activities, but not timbering or timber severance or timber hauling, or mineral severance, hauling, processing or preparation, or coal severance, hauling, processing or preparation;

(2) Information processing, including, but not limited to, telemarketing, information processing, systems engineering, backoffice operations and software development;

(3) The activity of warehousing, including, but not limited to, commercial warehousing and the operation of regional distribution centers by manufacturers, wholesalers or retailers;

(4) The activity of goods distribution;

(5) Destination-oriented recreation and tourism.

(c) Notwithstanding the fact that a company, entity or taxpayer is engaged in an industry or business activity enumerated in subsection (b) of this section, such company, entity or taxpayer must qualify for the business investment and jobs expansion tax credit by fulfilling the qualified investment, jobs creation and other credit entitlement requirements of the business investment and jobs expansion tax credit act in order to obtain entitlement to any credit under this article. Failure to fulfill the statutory requirements of the business investment and jobs expansion tax credit act will result in a partial or complete loss of the tax credit.

(d) Transition rule. -- Notwithstanding any provision herein contained to the contrary, this section shall not apply to investments for which applications for credit or applications for projected certification were filed prior to April 10, one thousand nine hundred ninety-three.

§11-13C-16. Termination of credit; effective date.

(a) Notwithstanding any other provision of this article to the contrary, no entitlement to any tax credit under this article may result from, and no credit is available to any taxpayer for, investment placed in service or use after December 31, 2002.

(b) Notwithstanding the provisions of subsection (a) of this section, the provisions of sections one through fifteen, of this article continue to apply to taxpayers that have gained entitlement to the credit pursuant to the placement of qualified investment into service or use prior to January 1, 2003.

(c) Transition rules. -– The general rule stated in subsection (a) of this section does not apply:

(1) To qualified investment property placed in service or use prior to January 1, 2003.

(2) To property purchased or leased for business expansion that is placed in service or use on or after January 1, 2003, if at least one of the following clauses applies to the property:

(A) The new or expanded business facility was constructed, reconstructed or erected, pursuant to a written construction contract executed prior to January 1, 2003, as limited to the provisions of the contract as of that date then binding on the taxpayer, but only to the extent the new or expanded business facility is placed in service or use prior to January 1, 2004;

(B) The new or expanded business facility is part of a project described in subdivision (1), subsection (a), section four-b of this article, for which the multiple year project investment period had commenced, but had not yet closed on or before January 1, 2003, and the new or expanded business facility constitutes or includes property placed in service or use prior to closure of the multiple year project investment period allowed for the project that is:

(i) Property constructed for a multiple year project certified before January 1, 2003, in accordance with section four-b of this article: Provided, That only that portion of the contract price attributable to that percentage of the construction contract completed prior to the last day of the multiple year project investment period (determined under principles set forth in Section 460(b) of the Internal Revenue Code of 1986, as in effect before January 1, 2003), which is placed in service or use prior to the last day of the multiple year project investment period allowed pursuant to subdivision (1), subsection (a), section four-b of this article, may be treated as property purchased for business expansion under section six of this article;

(ii) A new or expanded business facility purchased or leased for a multiple year project certified before January 1, 2003, in accordance with section four-b of this article; or

(iii) Machinery or equipment or other tangible personal property purchased or leased for a multiple year project certified before January 1, 2003, in accordance with section four-b of this article.

For purposes of this paragraph, the multiple year project investment period will be treated as having commenced if the taxpayer has placed the qualified investment into service or use in accordance with section four of this article. A multiple year project period will not be treated as having commenced merely as a result of the issuance of certification of a project under section four-b of this article. No entitlement to any tax credit under this paragraph may result from, and no credit is available to any taxpayer for, investment placed in service or use after closure of the multiple year project investment period for which certification has been issued.

(C) The new or expanded business facility was purchased or leased pursuant to a written contract executed prior to January 1, 2003, as limited to the provisions then binding on the taxpayer as of that date, but only to the extent the new or expanded business facility is placed in service or use prior to January 1, 2004; or

(D) The machinery or equipment or other tangible personal property purchased or leased for business expansion at a new or expanded business facility was purchased or leased by the taxpayer pursuant to a written contract to purchase or lease identifiable tangible personal property executed before January 1, 2003, as limited to the provisions of the written contract then binding on the taxpayer, but only to the extent the tangible personal property purchased or leased under the contract is placed in service or use before January 1, 2004.

(d) Notice of election required. -- Any person intending to claim credit under one or more of the transition rules provided in subsection (c) of this section shall file written notice of his or her intention with the Tax Commissioner on or before December 31, 2002. In the case of a multiparticipant project, this notice may be filed by the managing project participant on behalf of all participants in the project. Notice is to be in a form prescribed by the Tax Commissioner and all information required by the form is to be provided.

(e) Failure to file notice. -- If any person fails to timely file the notice required by subsection (d) of this section, that person is precluded from claiming credit under this article for investment property placed in service or use after December 31, 2002, and may claim credit under article thirteen-q of this chapter to the extent credit is allowable under that article. For purposes of this section, notice, in proper and complete form, timely filed under section twenty-one, article thirteen-q of this chapter, fulfills the filing requirement of this section if that filing addresses the same qualified investment for which notice would be required under this section.

§11-13D-1. Legislative findings and purpose.

The Legislature finds that the encouragement of the location of new industry in this state; the expansion, growth and revitalization of existing industrial facilities in this state; the conduct of research and development in this state, for purposes of expanding markets for sales and uses of this state's natural resources and industrial products, the construction of residential housing and the creation or expansion of management information services facilities are all in the public interest and promote the general welfare of the people of this state.

In order to encourage capital investment in this state and thereby increase employment and economic development, there is hereby provided a tax credit for industrial expansion and revitalization in this state, for certain research and development related expenditures in this state, for certain housing and development related expenditures in this state and for the creation or expansion of certain management information services facilities in this state.

§11-13D-2. Definitions.

(a) Any term used in this article shall have the same meaning as when used in a comparable context in article thirteen of this chapter, unless a different meaning is clearly required by the context of its use or by definition in this article.

(b) For purpose of this article, the term:

(1) "Eligible investment" means that amount determined under either section four of this article, for investment in a new or expanded or revitalized industrial facility, or under section five of this article, in the case of an eligible research and development project, under section five-a for a qualified housing development project, or under section five-b for a management information services facility.

(2) Eligible taxpayer.

(A) "Eligible taxpayer" means an industrial taxpayer who purchases new property for the purpose of industrial expansion, or for the purpose of revitalizing an existing industrial facility in this state; or a taxpayer who purchases property or services, or both, for the purpose of conducting an eligible research and development project in this state or for the purpose of constructing a qualified housing development project in this state.

(B) An eligible taxpayer for purposes of the management information services facility credit means a taxpayer fulfilling the requirements of paragraph (C) or (D) of this subdivision which has purchased, or leased, and placed into service or use in a management information services facility, qualified investment, as defined under section five-b of this article, of $2 million or more over a time period of not more than three hundred sixty-five consecutive days and which operates such management information services facility, without regard to whether such taxpayer is an industrial taxpayer or engages in an industrial business or operates an industrial facility as herein defined.

(C) An eligible taxpayer for purposes of the management information services facility credit is a person or entity which had no operations and owned or leased no property in West Virginia during the five-year period prior to the creation of the management information services facility in West Virginia, and which is not a successor in business to any person or entity which had operations or owned or leased property in West Virginia during the five-year period prior to the creation of the management information services facility in West Virginia.

A person or entity shall not constitute an eligible taxpayer for purposes of the management information services facility credit if any related person (as defined in Section 267(b) of the Internal Revenue Code of 1986, as amended) had operations or owned or leased property in West Virginia during the five-year period prior to the creation of the management information services facility in West Virginia or if any such related person is a successor in business to any person or entity which had operations or owned or leased property in West Virginia during the five-year period prior to the creation of the management information services facility in West Virginia.

(D) Notwithstanding paragraph (C) of this subdivision, a person, entity, successor in business which would otherwise not constitute an eligible taxpayer under paragraph (C) of this subdivision may nevertheless constitute an eligible taxpayer for purposes of this management information services facility credit if such person, entity, successor places qualified investment into service or use in West Virginia for the purpose of establishing in this state a management information services facility that is new to West Virginia and which services do not include any management information services previously conducted by such person, entity, successor, or a related person (as defined in Section 267(b) of the Internal Revenue Code of 1986, as amended) in West Virginia, or if such person, entity or successor places qualified investment into service or use in West Virginia in a management information services facility for the purpose of consolidating or relocating significant existing national, regional or international management information services operations in West Virginia, and such consolidation or relocation results in the placement of at least $2 million of qualified investment into service or use in West Virginia within the time periods described in paragraph (B) of this subdivision, and such consolidation or relocation results in the relocation of significant management information services operations into West Virginia which did not previously exist in West Virginia, and the taxpayer otherwise constitutes an eligible taxpayer under such paragraph (B). For purposes of this section, the term "regional" means an area including more than one state or portions of more than one state of the United States.

(3) "Eligible research and development project" means a research and development project engaged in or conducted within this state, by a person who is engaged in this state in the business of producing natural resources or in an industrial business when such research and development project is conducted for purposes relating to the technical, economic, financial, engineering or marketing aspects of expanding markets for, and increasing sales of, this state's natural resource products, or industrial products, or both.

(4) "Industrial business" means any privilege taxable under section two-b or two-m, article thirteen of this chapter, and includes a manufacturing service taxable under section two-h of said article: Provided, That on and after July 1, 1987, the term "industrial business" shall mean the business of manufacturing, compounding or preparing tangible personal property for sale, profit or commercial use, the business of generating electric power, and the business of providing a manufacturing service, which were taxable, respectively, under sections two-b, two-m and two-h, article thirteen of this chapter, on January 1, 1985.

(5) "Industrial facility" means any factory, mill, plant, refinery, warehouse, buildings or complex of buildings located within this state, including the land on which it is located, and all machinery, equipment and other real and tangible personal property located at or within such facility used in connection with the operation of such facility in an industrial business.

(6) "Industrial revitalization" means capital investment in an industrial facility located in this state to replace or modernize buildings, equipment, machinery and other tangible personal property used in connection with the operation of such facility in an industrial business of the taxpayer, including the acquisition of any real property necessary to the industrial revitalization.

(7) "Industrial expansion" means capital investment in a new or expanded industrial facility in this state.

(8) "Industrial taxpayer" means any person subject to business and occupation taxes under article thirteen of this chapter, exercising any privilege taxable under section two-b or two-m of said article thirteen, or providing a manufacturing service taxable under section two-h of said article thirteen: Provided, That on and after July 1, 1987, "industrial taxpayer" shall mean any person subject to tax under section two-m, article thirteen of this chapter; or any person subject to tax under article thirteen-a or twenty-three of this chapter engaging in any activity that was taxable under section two-b, article thirteen of this chapter, on January 1, 1985; or any person taxable under article twenty-three of this chapter providing a manufacturing service that was taxable under section two-h, article thirteen of this chapter on January 1, 1985.

(9) "Management information services facility" means a building, or any part thereof, or a complex of buildings, or any part thereof, including the machinery and equipment located therein, that is exclusively dedicated to providing management information services to the owner or operator thereof or to another person.

(10) "Management information services" means, and is limited to, data processing, data storage, data recovery and backup, programming recovery and backup, telecommunications, computation and computer processing, computer programming, electronic information, and data management activities, or any combination of such activities, when such activity, or activities, is not subject to regulation by the West Virginia Public Service Commission and such activity, or activities, is for the purpose of managing, planning for, organizing or operating, any industrial or commercial business, or any enterprise, facility or facilities of an industrial or commercial business, whether such industrial or commercial business or enterprise, facility or facilities of an industrial or commercial business is located within or without this state and without regard to whether such industrial or commercial business, or enterprise, facility or facilities of an industrial or commercial business is owned by the provider of the management information services or by a "related person", as defined in Section 267(b) of the Internal Revenue Code of 1986, as amended.

(11) "Manufacturing service" means a privilege that would be taxable under section two-b, article thirteen of this chapter, if title to the raw materials used in the manufacturing process was vested in the taxpayer exercising the privilege taxable under section two-h of said article thirteen.

(12) Subject to subdivision (15) below, "property purchased for an eligible research and development project" means real property, and improvements thereto, and tangible personal property, but only if such real or personal property is constructed or purchased on or after July 1, 1985, for use as a component part of an eligible research and development project which is located within this state on or after July 1, 1985. This term includes only tangible personal property with respect to which depreciation or amortization, in lieu of depreciation, is allowable in determining the personal income tax or corporation net income tax liability of the purchaser under article twenty-one or twenty-four of this chapter. Property acquired by written lease for a term of ten years or longer, if used as a component part of an eligible research and development project, shall be included within this definition.

(13) Subject to subdivision (15) below, "property purchased for industrial expansion" means real property, and improvements thereto, and tangible personal property, but only if such property was constructed, or purchased, on or after July 1, 1969, for use as a component part of a new or expanded industrial facility as defined in subdivision (5) of this subsection located within this state. This term includes only tangible personal property with respect to which depreciation, or amortization in lieu of depreciation, is allowable in determining the personal income tax or corporation net income tax liability of the industrial taxpayer under articles twenty-one or twenty-four of this chapter, and has a useful life, at the time such property is placed in service or use in this state, of four years or more. Property acquired by written lease, for a primary term of ten years or longer, if used as a component part of a new or expanded industrial facility, shall be included within this definition.

(14) Subject to subdivision (15) below, "property purchased for industrial revitalization" means real property, and improvements thereto, and new tangible personal property, but only if such property was constructed, or purchased, on or after July 1, 1981, for use as a component part of an ongoing industrial facility as defined in subdivision (5) of this subsection located within this state. This term includes only tangible personal property with respect to which depreciation is allowable in determining the personal income tax or corporation net income tax liability of the industrial taxpayer under article twenty-one or twenty-four of this chapter, and has a useful life at the time the property is placed in service or use in this state of four years or more. Property acquired by written lease for a primary term of ten years or longer, if used as a component part of an industrial revitalization, shall be included within this definition.

(15) "Property purchased for industrial expansion", "property purchased for industrial revitalization", "property purchased for an eligible research and development project", "property purchased for a qualified housing development project" and "property purchased or leased for a management information services facility" shall not include:

(A) Repair costs including materials used in the repair, unless for federal income tax purposes, the cost of the repair must be capitalized and not expensed;

(B) Motor vehicles licensed by the department of motor vehicles;

(C) Airplanes;

(D) Off-premise transportation equipment;

(E) Property which is primarily used outside this state; and

(F) Property which is acquired incident to the purchase of the stock or assets of an industrial taxpayer, which property was or had been used by the seller in his industrial business in this state, or which property was previously designated "property purchased for industrial expansion", or "property purchased for industrial revitalization", or "property purchased for an eligible research and development project", or "property purchased for a qualified housing development project", and used to qualify for business and occupation tax credit for industrial expansion or revitalization, or for an eligible research and development project, or for a qualified housing development project, or property which was subject to or gave rise to the management information services facility credit in the hands of the transferor, except that successors in business shall have successor credit available pursuant to section seven of this article.

(16) Subject to subdivision (15) above, property purchased for a qualified housing development project means real property, and improvements thereto, and tangible personal property incorporated into real property, whether or not attached thereto, but only if such real or tangible personal property was constructed, or purchased, on or after July 1, 1986, for use as a component part of a housing development project, as defined in section five-a of this article, located within this state.

(17) Subject to subdivision (15) above, "property purchased or leased for a management information services facility" means tangible personal property purchased from a West Virginia vendor in West Virginia or leased through or from a West Virginia vendor for a primary lease term of three years or more. For purposes of this section the term "tangible personal property" shall include prewritten or "canned" computer software, "custom" software and computer programming services which result in the production of custom software: Provided, That the term "property purchased or leased for a management information services facility" shall not include:

(A) Land or building or any part thereof whether leased or purchased;

(B) Natural resources in place;

(C) Property, the cost or consideration for which cannot be quantified with any reasonable degree of accuracy at the time such property is placed in service or use;

(D) Property purchased or leased or placed in service or use prior to April 1, 1991, or property purchased or leased or placed in service or use after March 31, 1993; or

(E) Property purchased for use in a management information services facility when such property is not purchased for the purpose of either:

(i) Expanding an existing management information services facility in West Virginia pursuant to a relocation or consolidation of significant national, regional or international management information services operation to West Virginia; or

(ii) Establishing in this state a management information services facility that is new to West Virginia.

(18) Property shall be deemed to have been purchased prior to a specified date only if:

(A) The physical construction, reconstruction or erection of the property was begun prior to the specified date, or such property was constructed, reconstructed, erected or acquired pursuant to a written contract as existing and binding on the taxpayer prior to the specified date;

(B) The machinery or equipment was owned by the taxpayer prior to the specified date or was acquired by the taxpayer pursuant to a binding purchase contract which was in effect prior to such date; or

(C) In the case of leased property, there was a binding written lease or contract to lease identifiable property in effect prior to the specified date.

(19) "Taxpayer" means any person taxable under article thirteen of this chapter: Provided, That on and after July 1, 1987, "taxpayer" shall mean any person taxable under article thirteen, thirteen-a or twenty-three of this chapter.

§11-13D-3. Amount of credit allowed for industrial expansion or revitalization, for eligible research and development projects, and for qualified housing development projects.

(a) Credit allowed. -- There shall be allowed to eligible taxpayers a credit against the taxes imposed by article thirteen, thirteen-a or twenty-three of this chapter, for industrial expansion or revitalization, and for eligible research and development projects and for qualified housing development projects. The amount of credit shall be determined as hereinafter provided in this section.

(b) Qualified investment for industrial expansion; July 1, 1969 - March 31, 1978. -- For property purchased for industrial expansion during the period beginning July 1, 1969, and ending March 31, 1978, the amount of allowable credit shall be equal to ten percent of the qualified investment (as determined in section four) made for industrial expansion, and shall reduce the business and occupation tax liability of the industrial taxpayer under article thirteen of this chapter, subject to the following conditions and limitations:

(1) The amount of credit allowable shall be applied over a ten-year period, at the rate of one tenth thereof per taxable year, beginning with the taxable year in which the qualified investment is first placed in service or use in this state.

(2) The amount of annual credit allowed shall not reduce the business and occupation tax under article thirteen of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax, computed before application of the annual exemption allowed by section three, article thirteen of this chapter.

(3) No carryover to a subsequent taxable year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance. Such unused credit shall be forfeited.

(c) Qualified investment for industrial expansion; April 1, 1978 - February 28, 1985. -- For property purchased for industrial expansion during the period beginning March 1, 1978, and ending February 28, 1985, the amount of allowable credit shall be equal to ten percent of the qualified investment (as determined in section four) made for industrial expansion, and shall reduce the business and occupation tax liability of the industrial taxpayer under section two-b, two-h and two-m, article thirteen of this chapter, subject to the following conditions and limitations:

(1) The amount of credit allowable shall be applied over a ten-year period, at the rate of one tenth thereof per taxable year, beginning with the taxable year in which the qualified investment is first placed in service or use in this state.

(2) The amount of annual credit allowed shall not reduce the business and occupation taxes imposed by section two, article thirteen of this chapter, under sections two-b, two-h and two-m, article thirteen of this chapter, below fifty percent of the amount which would be imposed for such taxable year, in the absence of this credit against tax, computed before application of the annual exemption allowed by section three, article thirteen of this chapter: Provided, That the tax under section two-h of said article thirteen, shall not be reduced by more than fifty percent of the tax attributable to the privilege of manufacturing for another, which privilege would be taxable under section two-b of said article thirteen, if title to the raw materials involved in the manufacturing process were vested in the taxpayer exercising the privilege taxable under section two-h of said article thirteen.

(3) No carryover to a subsequent taxable year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance. Such unused credit shall be forfeited.

(d) Eligible investment for industrial revitalization; July 1, 1981 - February 28, 1985. -- For property purchased for industrial revitalization during the period beginning July 1, 1981, and ending February 28, 1985, the amount of allowable credit shall be equal to ten percent of the eligible investment (as determined under section four) made for industrial revitalization, and shall reduce the business and occupation tax under sections two-b and two-h, article thirteen of this chapter, subject to the following conditions and limitations:

(1) The allowable credit shall be applied over a ten-year period at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the eligible investment is first placed in service or use in this state.

(2) The amount of annual credit allowed shall not reduce the business and occupation taxes imposed by section two, article thirteen of this chapter, under sections two-b and two-h of said article, below fifty percent of the amount which would be imposed for the taxable year in the absence of this credit against tax, computed before application of the annual exemption allowed by section three, article thirteen of this chapter: Provided, That the tax under section two-h of said article thirteen, shall not be reduced by more than fifty percent of the tax attributable to the privilege of manufacturing for another, which privilege would be taxable under section two-b of said article thirteen, if title to the raw materials involved in the manufacturing process were vested in the taxpayer exercising the privilege taxable under section two-h of said article thirteen.

(3) When in any taxable year the eligible industrial taxpayer is entitled to claim credit under both this subsection (d) and under subsections (b) or (c), or both, of this section, the total amount of all credits allowed under this section shall not exceed the fifty percent rule outlined in paragraph (2) of this subsection (d).

(4) No carryover to a subsequent taxable year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance. Any unused credit shall be forfeited.

(5) No credit shall be allowed under this section for any property purchased for industrial revitalization prior to July 1, 1981.

(e) Eligible investment for industrial expansion or revitalization after February 28, 1985. -- For property purchased for industrial expansion or industrial revitalization on or after March 1, 1985, the amount of allowable credit shall be equal to ten percent of the eligible investment (as determined in section four) made for industrial expansion or industrial revitalization, and shall reduce the business and occupation tax imposed under article thirteen of this chapter subject to the following conditions and limitations:

(1) The amount of credit allowable shall be applied over a ten-year period, at the rate of one-tenth thereof per taxable year, beginning with the taxable year in which the eligible investment is first placed in service or use in this state.

(2) The amount of annual credit allowed shall not reduce the business and occupation taxes imposed by article thirteen of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax, computed before application of the annual exemption allowed by section three, article thirteen of this chapter.

(3) When in any taxable year the industrial taxpayer is entitled to claim credit under this subsection (e) and under subsections (b), (c) or (d) of this section (or any combinations thereof), the total amount of all credits allowed under this section shall not exceed the fifty percent rule outlined in paragraph (2) of this subsection (e).

(4) No carryover to a subsequent taxable year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance. Such unused credit shall be forfeited.

(5) When in any taxable year the industrial taxpayer is entitled to claim credit under this article and article thirteen-e of this chapter, the total amount of all such credits allowable for the taxable year shall not reduce the amount of business and occupation taxes imposed by article thirteen of this chapter, below fifty percent of the amount which would be imposed for such taxable year, computed before allowance of the annual exemption allowed by section three, article thirteen of this chapter.

(6) No credit shall be allowed under this subsection (e) or any property purchased on or after March 1, 1985, for which credit is allowed under article thirteen-c of this chapter.

(7) No credit shall be allowed under this subsection (e) or any property purchased for industrial expansion or industrial revitalization prior to March 1, 1985.

(f) Eligible investment for research and development project after June 30, 1985. -- For property and services purchased for an eligible research and development project on or after July 1, 1985, the amount of allowable credit shall be equal to ten percent of the eligible investment (as determined in section five) made for an eligible research and development project, and shall reduce the business and occupation taxes under sections two-a, two-b, two-m, article thirteen of this chapter, subject to the following conditions and limitations:

(1) The allowable credit shall be applied over a ten-year period at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the eligible investment is first placed in service or use in this state, or is expensed for federal income tax purposes.

(2) The amount of annual credit allowed shall not reduce the business and occupation taxes imposed by section two, article thirteen of this chapter, under section two-a of said article, on the business of producing natural resources; under section two-b of said article thirteen, on the business or manufacturing, compounding or preparing tangible personal property for sale; under section two-h of said article thirteen on the providing of a manufacturing service; and under section two-m of said article thirteen, on the business of generating electric power, below fifty percent of the amount which would be imposed for the taxable year in the absence of this credit against tax, computed before application of the annual exemption allowed by section three, article thirteen of this chapter.

(3) When in any taxable year the eligible taxpayer is entitled to claim credit under both this subsection (f) and subsections (b), (c), (d) or (e) of this section (or any combinations thereof), the total amount of all credits allowed under this section shall not exceed the fifty percent rule outlined in paragraph (2) of this subsection (f).

(4) No carryover to a subsequent tax year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance. Any unused credit shall be forfeited.

(5) No credit shall be allowed under this subsection (f) for any property purchased for an eligible research and development project, when such property is used to determine the eligible investment under section four of this article, or determine the amount of credit allowable under article thirteen-c of this chapter.

(6) No credit shall be allowed under this subsection (f) for any property purchased for research and development prior to July 1, 1985.

(g) Eligible investment for qualified housing development project after June 30, 1986. -- For property and services purchased for a qualified housing development project on or after July 1, 1986, the amount of allowable credit shall be equal to ten percent of the eligible investment (as determined in section five-a) made for a qualified housing development project, and shall reduce the business and occupation taxes under sections two-c and two-e, article thirteen of this chapter, subject to the following conditions and limitations:

(1) The allowable credit shall be applied over a ten-year period at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which any combination of residential housing units (as defined in section five-a of this article) available for occupancy or occupied in the qualified housing development project is five or more residential housing units.

(2) The amount of annual credit allowed shall not reduce the business and occupation taxes imposed by section two, article thirteen of this chapter, under section two-c of said article on the business of selling tangible property and under section two-e on the business of contracting below fifty percent of the amount which would be imposed for the taxable year in the absence of this credit against tax, computed before application of the annual exemption allowed by section three, article thirteen of this chapter.

(3) When in any taxable year the eligible taxpayer is entitled to claim credit under both this subsection (g) and subsections (b), (c), (d), (e) or (f) of this section (or any combinations thereof), the total amount of all credits allowed under this section shall not exceed the fifty percent rule outlined in paragraph (2) of this subsection (g).

(4) No carryover to a subsequent tax year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance. Any unused credit shall be forfeited.

(5) No credit shall be allowed under this subsection (g) for any property purchased for an eligible housing development project, when such property is used to determine the eligible investment under section four of this article, or determine the amount of credit allowable under article thirteen-c of this chapter.

(6) No credit shall be allowed under this subsection (g) for any property purchased for an eligible housing development project, when such property is used to determine the eligible investment under section four of this article, or determine the amount of credit allowable under article thirteen-c of this chapter.

(h) Credit limitation. -- The aggregate amount of credit allowable under this article and article thirteen-e of this chapter, against the taxes imposed by article thirteen of this chapter for the taxable year, shall in no event exceed fifty percent of the tax due for the taxable year, computed prior to application of the tax credits provided by this article and articles thirteen-c and thirteen-e of this chapter, and the annual exemption allowed provided by section three, article thirteen of this chapter.

(i) Application of credit after June 30, 1987. -- On and after July 1, 1987, the credits allowed under subsections (b), (c), (d), (e), (f) and (g) of this section shall be applied to and reduce the taxes imposed by articles thirteen, thirteen-a and twenty-three of this chapter: Provided, That this credit shall not reduce the sum of the net tax liability of the taxpayer under articles thirteen, thirteen-a and twenty-three of this chapter, for the taxable year below fifty percent of the amount thereof, determined before application of the credits allowed by this article and article thirteen-c or thirteen-e, or both, of this chapter.

§11-13D-3a. Application of credit after June 30, 1987.

On and after July 1, 1987, the credits allowed under section three shall be applied to and reduce the taxes imposed by articles thirteen, thirteen-a, fifteen, fifteen-a and twenty-three of this chapter: Provided, That this credit shall not reduce the sum of the net tax liability of the taxpayer under articles thirteen, thirteen-a and twenty-three of this chapter, or under articles fifteen and fifteen-a of this chapter on purchases directly used or consumed in taxpayer's qualified investment activity, for the taxable year below fifty percent of the amount thereof, determined before application of the credits allowed by this article and article thirteen-c or thirteen-e, or both, of this chapter.

§11-13D-3b. Application of credit after June 30, 1989.

For taxable years ending on and after July 1, 1989, the credits allowed under section three shall continue to be applied as provided in section three-a. In addition, the credit allowed under subsection (f) of section three that remains after its application as provided in section three-a of this article shall be applied to reduce the tax imposed by article twenty-four of this chapter: Provided, That this credit may not reduce by more than fifty percent the amount of the net tax liability of the taxpayer for the taxable year under article twenty-four of this chapter, which amount of net tax liability shall be determined before application of the credit allowed by article thirteen-c of this chapter.

§11-13D-3c. Amount of credit allowed and application of credit for qualified investment in a management information services facility.

(a) Credit allowed. -- There shall be allowed to eligible taxpayers a credit against the taxes imposed by articles twenty-three and twenty-four of this chapter for qualified investment in a management information services facility. The amount of credit shall be determined as hereinafter provided in this section.

(b) Investment period limitations subject to extension upon legislative amendment. -- It is the finding of the Legislature that certain tax credits heretofore enacted have not effectively fulfilled the intended legislative purpose of increasing employment and economic growth and development in this state. Therefore, the time period over which qualified investment property may be purchased or leased and placed in service or use by eligible taxpayers at a management information services facility is expressly limited, for purposes of this credit, to two years under paragraph (C), subdivision (17), subsection (b), section two of this article, subsection (c) of this section, and paragraph (B), subdivision (6), subsection (c), section five-b of this article. If the Legislature subsequently finds that this credit for a management information services facility effectively fulfills the legislative purpose for which it was enacted, the Legislature may, in its discretion, extend, by statutory amendment, the time period over which qualified investment may be purchased, or leased, and placed in service or use.

(c) Credit amount for qualified investment purchased and placed in service or use in a management information services facility after March 31, 1991 and prior to April 1, 1993. -- For property purchased or leased by an eligible taxpayer and placed in service or use after March 31, 1991, and prior to April 1, 1993, for use as a component part of a management information services facility, the amount of allowable credit shall be equal to one hundred percent of the qualified investment, as determined under section five-b of this article, and shall reduce the business franchise tax under article twenty-three of this chapter and the corporation net income tax under article twenty-four of this chapter, subject to the following conditions and limitations:

(1) Tax year time limitations for application of credit, credit forfeiture. --

(A) The amount of this credit allowable shall be applied over a time period of up to ten tax years.

(B) This credit shall first be applied against the tax liabilities in the manner specified in subdivision (2) of this subsection (c) beginning with the tax year during which the qualified investment was first placed in service or use in this state by the eligible taxpayer.

(C) Any amount of this credit remaining after application of this credit against tax as specified in paragraph (B) of this subdivision (1) shall then be applied against the tax liabilities in the manner specified in subdivision (2) of this subsection (c) for the tax year immediately succeeding the tax year during which the qualified investment was first placed in service or use in this state and for each succeeding tax year thereafter up through the ninth tax year subsequent to the first tax year in which the qualified investment property was first placed in service or use.

(D) Any amount of this credit remaining after application of this credit against tax as specified in paragraph (B) and then paragraph (C) of this subdivision shall be forfeited and shall not carry forward to any subsequent tax year.

(E) No carryback of credit to a prior tax year shall be allowed.

(2) Tax liability percentage offset limitations. --

(A) This credit for qualified investment in a management information services facility shall first be applied to reduce the annual West Virginia business franchise tax liability imposed under article twenty-three of this chapter for the tax year by an amount such that this credit, in combined application with all other applicable credits allowable under articles thirteen-c, thirteen-d and thirteen-e of this chapter and under chapter five-e of this code and all other tax credits provided in this code, shall not reduce the annual business franchise tax liability for such tax year below fifty percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and all credits against such tax, except the credits set forth in section seventeen, article twenty-three of this chapter.

(B) After application of this credit against business franchise tax as provided in paragraph (A) of this subdivision (2), remaining credit for qualified investment in a management information services facility, if any, shall then be applied to reduce the annual West Virginia corporation net income tax liability imposed under article twenty-four of this chapter for the tax year by an amount such that this credit in combined application with all other applicable credits allowable under articles thirteen-c, thirteen-d, thirteen-f and thirteen-g of this chapter and under sections ten, eleven, eleven-a, twelve, twenty-two and twenty-three-a, article twenty-four of this chapter and under chapters five-e and eighteen-b of this code and all other tax credits provided in this code, shall not reduce the annual corporation net income tax liability for such tax year below fifty percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and all other credits against tax, except the credits set forth in sections nine and nine-a, article twenty-four of this chapter.

(C) After application of this credit against business franchise tax under paragraph (A) of this subdivision (2), and then against corporation net income tax under paragraph (B) of this subdivision (2); remaining credit for qualified investment in a management information services facility, if any, shall then be applied to further reduce the annual West Virginia business franchise tax liability imposed under article twenty-three of this chapter for the tax year by an amount such that this credit shall not reduce the annual business franchise tax liability for such tax year below ten percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and all other credits against such tax, except the credits set forth in section seventeen, article twenty-three of this chapter.

(D) After application of this credit against business franchise tax under paragraph (A) of this subdivision (2) and then against corporation net income tax under paragraph (B) of this subdivision (2), and then against business franchise tax under paragraph (C) of this subdivision (2); remaining credit for qualified investment in a management information services facility, if any, shall then be applied to further reduce the annual West Virginia corporation net income tax liability imposed under article twenty-four of this chapter for the tax year by an amount such that this credit shall not reduce the annual corporation net income tax liability for such tax year below ten percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and all other credits against such tax, except the credits set forth in sections nine and nine-a, article twenty-four of this chapter.

(d) Maximum annual credit allowance. -- (1) Notwithstanding any other provision of this section, no taxpayer may take or apply more than $1,000,000 of this credit against all taxes, in the aggregate, against which this credit may apply in any taxable year, and no related person or persons as defined in Section 267(b) of the Internal Revenue Code of 1986, as amended, may, in the aggregate, take or apply more than $1,000,000 of this credit against all taxes, in the aggregate, against which this credit may apply in any taxable year.

(2) Notwithstanding any other provision of this section, the total amount of credit certified under this subsection (e) for all taxpayers shall not exceed $5,000,000 per year. The Tax Commissioner shall allocate this credit to eligible taxpayers in the order that such taxpayers are certified under subsection (e) of this section: Provided, That no taxpayer or any related person to such taxpayer (as amended in section 267(b) of the Internal Revenue Code of 1986, as amended), shall be allocated more than $5,000,000.

 (e) Certification of credit required. --

(1) Application required. -- No credit shall be allowed or applied under this section for any investment in any management information services facility until the person asserting a claim for the allowance of credit under this article makes written application to the Tax Commissioner for allowance of credit as provided in this section and receives written certification of its claim from the Tax Commissioner. An application for credit shall be filed, in such form as the Tax Commissioner shall prescribe, prior to the first date when qualified investment property is first placed in service or use, and whether such property will be placed in service during the same tax year or over a period of two or more successive tax years. All information required by such form shall be provided. No credit shall be taken by a taxpayer applicant or prospective applicant pursuant to this section and the exemption from tax set forth under subsection (nn), section nine, article fifteen of this chapter shall not be available to a taxpayer applicant or prospective applicant until certification has been issued by the Tax Commissioner.

(2) Failure to file. -- The failure to timely apply for certification under this subsection (e) shall result in the forfeiture of the credit otherwise allowable under this section.

(f) Forfeiture for reductions of employment. --

(1) With the annual return for the tax imposed by article twenty-three of this chapter filed for the taxable year in which the qualified investment is first placed in service or use in this state, and for each succeeding taxable year thereafter during which the taxpayer seeks to apply this credit against tax, the taxpayer shall file a statement with the Tax Commissioner certifying that no West Virginia jobs have been lost or terminated and no decrease of working hours or layoffs of employees holding West Virginia jobs have resulted from the making of the qualified investment upon which this credit is based or from the establishment or operation of the management information services facility upon which this credit is based.

(2) The taxpayer shall forfeit all annual credit otherwise available under this section during any year when West Virginia jobs have been lost or terminated or decreases of working hours or layoffs of employees holding West Virginia jobs have occurred as a result of the making of the qualified investment upon which this credit is based or the establishment or operation of the management information services facility upon which this credit is based, and the exemption from tax set forth in subsection (nn), section nine, article fifteen of this chapter shall not be available to the taxpayer during such year of forfeiture.

(3) The Tax Commissioner shall conduct such audits or reviews of each taxpayer in any year a credit is asserted under this section to verify the accuracy of a taxpayer's statement certifying that no West Virginia jobs have been lost or terminated and that no decrease of working hours or layoffs of employees holding West Virginia jobs have resulted from the making of qualified investments upon which this credit is based or from the establishment or operation of the management information services facility upon which this credit is based. Such audits shall also verify that all other requirements applicable to the allowance under a credit under this section continue to be met by the taxpayer.

(g) Information disclosure. -- Providing that such disclosure can be made without directly or indirectly revealing the amount of credit available to any particular taxpayer or taxpayer return information other than the name and address of the taxpayer, and notwithstanding any other provision of this code to the contrary, the Tax Commissioner shall publish in the state register the name and address of every taxpayer receiving this credit allowed under this section by December 31, 1992, and annually thereafter by December 31, of each year. The Tax Commissioner shall publish in the state register the amount of the credit asserted, by amount category, for each taxpayer asserting such credit. The categories by dollar amount of credit received shall be as follows:

(1) More than $1.00 but not more than $50,000;

(2) More than $50,000 but not more than $100,000;

(3) More than $100,000 but not more than $250,000;

(4) More than $250,000 but not more than $500,000; and

(5) More than $500,000 but not more than $1,000,000.

(h) Report by the Governor's office of community and industrial development. -- The Governor's office of community and industrial development shall produce a report to the Legislature to be presented during the 1992 regular legislative session. Such report shall state the identity of taxpayers who have received this management information services facility credit, and shall contain an analysis of the expansion and growth of management information services facilities in the State of West Virginia, the expansion of commerce resulting from the creation of this credit, and the number of jobs created as a result of this credit. The report of the Governor's office of community and industrial development shall not directly or indirectly reveal the amount of credit available to any particular taxpayer or taxpayer return information other than the names and addresses of taxpayers.

§11-13D-3d. Amount of credit allowed and application of credit for qualified investment in a new industrial facility producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel.

(a) Credit allowed. -- There shall be allowed to eligible taxpayers which have made qualified investment of at least $10 million in a new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel a credit against the taxes imposed by articles twenty-three and twenty-four of this chapter for qualified investment in a new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel. The amount of credit shall be determined as hereinafter provided in this section. Taxpayers who have not placed at least $10 million of qualified investment in service or use over a period of one year or less in a new industrial facility used to produce synthetic motor fuel or synthetic special fuel shall not be entitled to credit under this section.

(b) Credit amount for qualified investment purchased and placed in service or use in a new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel, after June 30, 1991. -- For property purchased or leased by an eligible taxpayer and placed in service or use after June 30, 1991, as part of a new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel the amount of allowable credit shall be equal to one hundred percent of the qualified investment (as determined under section four of this article), and shall reduce that portion of the taxpayer's business franchise tax under article twenty-three of this chapter, which is attributable to and the direct result of the taxpayer's qualified investment, and that portion of the taxpayer's corporation net income tax under article twenty-four of this chapter, which is attributable to and the direct result of the taxpayer's qualified investment; subject to the following conditions and limitations:

(1) The total amount of credit allowable to all persons claiming credit under this section shall not exceed $10 million during any fiscal year of this state. If and to the extent credit is claimed under this section in excess of $10 million in any fiscal year of this state the amount in excess of $10 million is lost. In determining which taxpayer or taxpayers loses credit under this subdivision (1), the loss of credit shall apply first to qualified investment property most recently placed in service or use, going backwards in time, until the Tax Commissioner determines that the total amount of credit allowed under this section is not in excess of $10 million.

(2) The qualified investment must result in the creation of at least ten new jobs.

(3) If, during any taxable year of the ten year tax credit allowance period, the average number of employees of the taxpayer, for the then current taxable year, employed in positions created because of and directly attributable to the qualified investment property is less than ten, the credit allowance for that taxable year is forfeited.

(4) Tax year time limitations for application of credit; credit forfeiture.

(A) The amount of this credit allowable shall be applied over a time period of up to ten tax years.

(B) This credit shall first be applied against tax liabilities in the manner specified in subdivision (5) of this subsection (b), beginning with the tax year during which the qualified investment was first placed in service or use in this state by the eligible taxpayer.

(C) Any amount of this credit remaining after application of this credit against tax as specified in paragraph (A) of subdivision (5) of this subsection (b) shall then be applied against the tax liabilities in the manner specified in paragraph (B), subdivision (5) of this subsection (b) for the tax year immediately succeeding the tax year during which the qualified investment was first placed in service or use in this state and for each succeeding tax year thereafter up through the ninth tax year subsequent to the first tax year in which the qualified investment property was first placed in service or use.

(D) Any amount of this credit remaining after application of this credit against tax as specified in subdivision (5) of this subsection (b) shall be forfeited and shall not carry forward to any subsequent tax year.

(E) No carryback of credit to a prior tax year shall be allowed.

(5) Tax liability percentage offset limitations.

(A) This credit for qualified investment in a new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel shall first be applied to reduce the annual West Virginia business franchise tax liability imposed under article twenty-three of this chapter for the tax year by an amount such that this credit, in combined application with all other applicable credits allowable under articles thirteen-c, thirteen-d and thirteen-e of this chapter and under chapter five-e of this code and all other tax credits provided in this code, shall not reduce the annual business franchise tax liability for such tax year below fifty percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and all credits against such tax, except the credits set forth in section seventeen, article twenty-three of this chapter.

(B) After application of this credit against business franchise tax as provided in paragraph (A) of this subdivision (5), the remaining credit for qualified investment in a new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel (if any) shall then be applied to reduce the annual West Virginia corporation net income tax liability imposed under article twenty-four of this chapter for the tax year by an amount such that this credit in combined application with all other applicable credits allowable under articles thirteen-c, thirteen-d, thirteen-f and thirteen-g of this chapter and under sections ten, eleven, eleven-a, twelve, twenty-two and twenty-three-a, article twenty-four of this chapter and under chapters five-e and eighteen-b of this code and all other tax credits as provided in this code, shall not reduce the annual corporation net income tax liability for such tax year below fifty percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and all other credits against tax, except the credits set forth in sections nine and nine-a, article twenty-four of this chapter.

(C) After application of this credit against business franchise tax under paragraph (A) of this subdivision (5), and then against corporation net income tax under paragraph (B) of this subdivision (5), the remaining credit for qualified investment in a new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel (if any) shall then be applied to further reduce the annual West Virginia business franchise tax liability imposed under article twenty-three of this chapter for the tax year by an amount such that this credit shall not reduce the annual business franchise tax liability for such tax year below ten percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and all other credits against such tax, except the credits set forth in section seventeen, article twenty-three of this chapter.

(D) After application of this credit against business franchise tax under paragraph (A) of this subdivision (5) and then against corporation net income tax under paragraph (B) of this subdivision (5), and then against business franchise tax under paragraph (C) of this subdivision (5), the remaining credit for qualified investment in a new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel (if any) shall then be applied to further reduce the annual West Virginia corporation net income tax liability imposed under article twenty-four of this chapter for the tax year by an amount such that this credit shall not reduce the annual corporation net income tax liability which would otherwise be imposed for such tax year in the absence of this credit and all other credits against such tax, except the credits set forth in sections nine and nine-a, article twenty-four of this chapter.

(c) Application for credit required.

(1) Application required. -- No credit shall be allowed or applied under this section for any investment in any new industrial facility for producing coal-based liquids used to produce synthetic motor fuel or synthetic special fuel until the person asserting a claim for the allowance of credit under this article makes written application to the Tax Commissioner for allowance of credit as provided in this section and receives written certification of its claim from the Tax Commissioner. An application for credit shall be filed, in such form as the Tax Commissioner shall prescribe, prior to the date when qualified investment property is first placed in service or use, and all information required by such form shall be provided. No credit shall be taken by a taxpayer applicant or prospective applicant pursuant to this section until certification has been issued by the Tax Commissioner.

(2) Failure to file. -- The failure to timely apply for certification under this subsection (c) shall result in forfeiture of the credit otherwise allowable under this section.

(d) Definitions. -- For purposes of this section:

(1) "Synthetic motor fuel" means any product suitable for use in an internal combustion engine except special fuel as defined in this section, containing at least ten percent coal-based liquids blended to meet specifications.

(2) "Synthetic special fuel" means special fuel containing at least ten percent coal-based liquids blended to meet specifications.

(e) Report by the Governor's office of community and industrial development. -- The Governor's office of community and industrial development shall produce a report to the Legislature to be presented during the regular legislative session of 1993 and annually thereafter. Such report shall state the identity of taxpayers who have received this credit and shall contain an analysis of the expansion and growth of facilities in this state producing coal-based liquids used to produce synthetic fuels, the expansion of commerce resulting from the creation of this credit, and the number of jobs created as a result of this credit. The report of the Governor's office of community and industrial development shall not directly or indirectly reveal the amount of credit available to any particular taxpayer or taxpayer return information other than the names and addresses of taxpayers.

§11-13D-3e. Application of credit after June 30, 1993.

Notwithstanding any other provision of this code to the contrary, for taxable years ending on and after July 1, 1993, the credits allowed under section three may not be applied to reduce the taxes imposed by articles fifteen and fifteen-a of this chapter: Provided, That this section shall not apply to credits allowed under subsection (g), section three of this article for qualified housing development projects existing in this state on or before July 1, 1992.

§11-13D-3f. Amount of credit allowed and application of credit for qualified investment in an aerospace industrial facility.

(a) Credit allowed. -- (1) There is allowed to eligible taxpayers which have made qualified investment in an aerospace industrial facility, a credit against the taxes imposed by articles twenty-three and twenty-four of this chapter for qualified investment in an aerospace industrial facility. The amount of credit is determined as provided in this section.

(2) There is allowed to members, distributive interest holders and partners of eligible taxpayers described in paragraph (3), subsection (c) of this section, a credit against the taxes imposed by article twenty-four of this chapter for qualified investment in an aerospace industrial facility. The amount of credit is determined as provided in this section.

(b) Credit amount for qualified investment in property placed in service or use in an aerospace industrial facility after June 30, 1998. -- For property purchased or leased by an eligible taxpayer and placed in service or use after June 30, 1998, as part of an aerospace industrial facility, the amount of allowable credit is equal to fifteen percent of the qualified investment (as determined under subsection (e) of this section), and reduces the taxpayer's annual business franchise tax liability under article twenty-three of this chapter and the taxpayer's annual corporation net income tax liability under article twenty-four of this chapter, subject to the following conditions and limitations:

(1) The amount of credit allowable is applied over a ten-year period, at the rate of one-tenth thereof per taxable year, beginning with the taxable year in which the qualified investment is first placed in service or use in this state.

(2) When in any taxable year a taxpayer is entitled to claim credit under this section and under any other section of this article, (or any combination thereof), the total amount of all credits allowed for the tax year under this article shall not exceed the sixty percent of total tax liability offset limitations set forth in subsection (c) of this section.

(3) No carryover to a subsequent taxable year or carryback to a prior taxable year is allowed for any unused portion of any annual credit allowance. Such unused credit is forfeited.

(4) No credit is allowed under this article for investment in any property for which credit is allowed under article thirteen-c of this chapter.

(5) No credit is allowed under this section for investment in any property for which credit is allowed under any other section of this article.

(c) Application of credit. -- (1) The annual credit for qualified investment in an aerospace industrial facility is first applied to reduce the annual West Virginia business franchise tax liability imposed under article twenty-three of this chapter for the tax year. The amount of annual credit allowed may not reduce the annual liability for such tax year below sixty percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and in the absence of all other credits against such tax, except the credits set forth in section seventeen, article twenty-three of this chapter.

(2) After application of this credit against business franchise tax as provided in subdivision (1) of this subsection, the remaining annual credit, if any, is then applied to reduce the annual West Virginia corporation net income tax liability imposed under article twenty-four of this chapter for the tax year. The amount of annual credit allowed may not reduce the annual corporation net income tax liability for such tax year below sixty percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and in the absence of all other credits against tax.

(3) In the case of an eligible taxpayer that:

(A) Is a limited liability company, partnership or other business organization taxed under article twenty-three of this chapter, but not taxed under article twenty-four of this chapter,

(B) Is not treated as a corporation for federal income tax purposes, and

(C) Is a "flow through" entity or conduit for income distributed to members, distributional interest holders or partners, the following applies: Members, distributional interest holders or partners, of the eligible taxpayer subject to the corporation net income tax imposed under article twenty-four of this chapter may apply this credit against that portion of their annual corporation net income tax liability imposed under article twenty-four of this chapter for the tax year on that distributive income directly and solely derived from the eligible taxpayer. The amount of annual credit allowed may not reduce the annual corporation net income tax liability for such tax year below sixty percent of the amount of the annual tax liability which would otherwise be imposed for such tax year in the absence of this credit and in the absence of all other credits against tax.

(d) Definitions. -- For purposes of this section:

(1) "Aerospace industrial facility" means a facility used by an eligible taxpayer for the manufacturing, rebuilding or physical refurbishment of:

(A) Aircraft,

(B) Aircraft engines,

(C) Aircraft engine parts,

(D) Other aircraft parts,

(E) Aircraft auxiliary equipment, including fluid power aircraft subassemblies,

(F) Guided missiles,

(G) Space vehicles,

(H) Guided missile and space vehicle propulsion units,

(I) Guided missile parts,

(J) Propellers,

(K) Space vehicle parts, or

(L) Guided missile and space vehicle auxiliary parts.

(2) "Controlled group" means one or more chains of corporations connected through stock ownership with a common parent corporation if stock possessing at least fifty percent of the voting power of all classes of stock of each of the corporations is owned directly or indirectly by one or more of the corporations; and the common parent owns directly stock possessing at least fifty percent of the voting power of all classes of stock of at least one of the other corporations.

(3) "Corporation" means any corporation, joint-stock company or association, and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument, and any organization which is treated as a corporation for federal income tax purposes.

(4) "Eligible taxpayer" means, for purposes of this section, a person subject to tax under article twenty-three or article twenty-four of this chapter, and regularly engaged in the business of manufacturing, rebuilding or physical refurbishment of:

(A) Aircraft,

(B) Aircraft engines,

(C) Aircraft engine parts,

(D) Other aircraft parts,

(E) Aircraft auxiliary equipment, including fluid power aircraft subassemblies,

(F) Guided missiles,

(G) Space vehicles,

(H) Guided missile and space vehicle propulsion units,

(I) Guided missile parts,

(J) Propellers,

(K) Space vehicle parts, or

(L) Guided missile and space vehicle auxiliary parts.

The term "eligible taxpayer" does not include any person whose only activity with respect to an aerospace industrial facility is to lease it to another person or persons.

(5) "Placed in service or use." For purposes of the credit allowed by this section, property shall be considered "placed in service or use" on the earliest of the following dates:

(A) The date on which the property is physically placed in service or use in an aerospace industrial facility;

(B) The closing date of the eligible taxpayer's federal income tax year during which federal income tax depreciation with respect to the property has begun, or in the case of leased property, the closing date of the eligible taxpayer's federal income tax year during which expenses for lease payments for the property are first taken as a deduction from income for federal income tax purposes; or

(C) The closing date of the eligible taxpayer's federal income tax year during which the property is placed in a condition or state of readiness and availability for a specifically assigned function in an aerospace industrial facility, but where the property has not been physically placed in service or use in the aerospace industrial facility on that closing date.

(e) Qualified investment in an aerospace industrial facility. -- (1) Purchased property. -- The qualified investment in tangible personal property or real property purchased for use as a component part of an aerospace industrial facility is the applicable percentage of the cost of such property purchased for an aerospace industrial facility, which is placed in service or use in this state, by the eligible taxpayer during the tax year as determined under this section.

(2) Applicable percentage. -- For the purposes of this subsection, the applicable percentage for any property shall be determined under the following table:

If useful life is: The applicable

percentage is:

4 years or more but less than 6 years 33 1/3%

6 years or more but less than 8 years 66 2/3%

8 years or more 100%

The useful life of any property for purposes of this section shall be the actual economic useful life determined as of the date such property is first placed in service or use in this state by the taxpayer, determined for financial accounting purposes in accordance with generally accepted principles of accounting.

(3)(A) Cost. -- For purposes of this subsection, the cost of each item of property purchased for use as a component part of an aerospace industrial facility shall be the fair market value or the actual cost, whichever is less, and in no event shall the cost exceed the fair market value as of the date such property is first placed in service or use in this state by the eligible taxpayer. Cost is determined under the following rules:

(B) Trade-ins. -- Cost does not include the value of property given in trade or exchange for the property purchased for use as a component part of an aerospace industrial facility.

(C) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property does not include any insurance proceeds received in compensation for the loss.

(4) Rental property. -- (A) The qualified investment in tangible personal property or real property leased for use as a component part of an aerospace industrial facility is the portion specified in this subdivision of the cost of such property purchased for an aerospace industrial facility, which is placed in service or use in this state, by the eligible taxpayer during the tax year as determined under this section.

(B) The qualified investment in leases of real property acquired by written lease for a primary term of ten years or longer is one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years. Leases of realty having a primary term of less than ten years do not qualify for purposes of this section.

(C) The qualified investment in leases of tangible personal property acquired by written lease for a primary term of:

(i) Four years, or longer, is one third of the rent reserved for the primary term of the lease;

(ii) Six years, or longer, is two thirds of the rent reserved for the primary term of the lease; or

(iii) Eight years, or longer, is one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years: Provided, That in no event does rent reserved include rent for any year subsequent to expiration of the book life of the property, determined using the straight-line method of depreciation.

(5) Transferred property. -- (A) The cost of property owned and used by the taxpayer out-of-state and then brought into this state, is determined based on the remaining useful life of the property at the time it is placed in service or use in this state, and the cost is the original cost of the property to the taxpayer less straight line depreciation allowable for the tax years or portions thereof taxpayer used the property outside this state.

(B) In the case of leased tangible personal property, cost is based on the period remaining in the primary term of the lease after the property is brought into this state for use in an aerospace industrial facility of an eligible taxpayer, and is the rent reserved for the remaining period of the primary term of the lease, not to exceed twenty years, or the remaining useful life of the property, whichever is less.

(C) Qualified investment in transferred property is computed by applying the four-year, six-year and eight-year requirements of this section to the cost thereof with the applicable four year, six year and eight year period determined based on the remaining useful life or remaining primary lease term at the time the property is placed in service or use in this state.

(6) Property purchased for multiple use. -- Investment in property purchased for use in an aerospace industrial facility and for some other use does not qualify for purposes of this credit.

(7) Self-constructed property. -- In the case of self-constructed property, the cost thereof is the amount properly charged to the capital account for purposes of depreciation for federal income tax purposes.

(8) Specific exclusions from qualification. -- The following investment does not constitute qualified investment in an aerospace industrial facility, and does not qualify for purposes of this credit.

(A) Investment by purchase or lease in natural resources in place.

(B) Investment in purchased or leased property, the cost or consideration for which cannot be quantified with any reasonable degree of accuracy at the time such property is placed in service or use: Provided, That when the contract of purchase or lease specifies a minimum purchase price which can be quantified or minimum annual rent which can be quantified, the amount thereof shall be used to determine the cost thereof. If the property and lease otherwise qualify under the primary lease term requirements and other requirements of this section for property purchased or leased for use as a component part of an aerospace industrial facility, then qualified investment in such property is determined in accordance with the four-year, six-year and eight-year useful life or primary lease term requirements of this subsection.

(C) Investment in property purchased, or leased, or placed in service or use prior to July 1, 1998.

(D) Investment in the purchase, acquisition or transfer of any facility or component thereof that was in service or use during the ninety days immediately prior to transfer of the title to such facility or component thereof, or to the commencement of the term of the lease of such facility or component thereof, unless upon application of the taxpayer, setting forth good and sufficient cause, the Tax Commissioner consents to waiving this ninety-day period.

(E) Investment in any facility or component part thereof that was acquired by the taxpayer from a related person. The Tax Commissioner may waive this requirement if the facility was acquired from a related party for its fair market value, and the basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined:

(i) In whole or in part by reference to the federal adjusted basis of such property in the hands of the person from whom it was acquired; or

(ii) Under Section 1014(e) of the United States Internal Revenue Code of 1986, as amended, and in effect on January 1, 1998.

(F) Investment in or cost incurred for property owned or leased by the taxpayer and for which credit was previously taken under article thirteen-c, article thirteen-d or thirteen-e of this chapter: Provided, That this paragraph shall not be construed to prevent the transfer of this credit in the event of a mere change in the form of doing business of an eligible taxpayer, or transfer of credit to successors in business in accordance with section seven of this article.

(G) Repair costs, including costs or materials used in the repair, unless for federal income tax purposes, the cost of the repair must be capitalized.

(H) Investment in airplanes.

(I) Investment in property which is primarily used outside this state.

(J) Investment in property acquired incident to the purchase of a corporation, business organization or ongoing business or a substantial portion thereof through transfer of stock, ownership interests or assets thereof, or any other transfer, merger or purchase, unless for good cause shown, the Tax Commissioner consents to waiving this requirement: Provided, That this paragraph shall not be construed to prevent the transfer of this credit in the event of a mere change in the form of doing business of an eligible taxpayer, or transfer of credit to successors in business in accordance with section seven of this article.

(K) Investment in property acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under Section 267 or 707(b) of the United States Internal Revenue Code of 1986, as amended, and in effect on January 1, 1999.

(L) Investment in property acquired by one component member of a controlled group from another component member of the same controlled group: Provided, That, the Tax Commissioner can waive this requirement if the property was acquired from a related party for its then fair market value, and the basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined:

(i) In whole or in part by reference to the federal adjusted basis of such property in the hands of the person from whom it was acquired; or

(ii) Under Section 1014(e) of the United States Internal Revenue Code of 1986, as amended, and in effect on January 1, 1999.

§11-13D-4. Eligible investment for industrial expansion or revitalization.

(a) General. -- The eligible or qualified investment in property purchased for industrial expansion or revitalization shall be the applicable percentage of the cost of each property purchased for the purpose of industrial expansion or revitalization, which is placed in service or use in this state, by the eligible taxpayer during the taxable year.

(b) Applicable percentage. -- For the purposes of subsection (a), the applicable percentage for any property shall be determined under the following table:

If useful life is: The applicable percentage is:

4 years or more but less than 6 years 33 1/3

6 years or more but less than 8 years 66 2/3

8 years or more 100

The useful life of any property for purposes of this section shall be determined as of the date such property is first placed in service or use in this state by the taxpayer, determined in accordance with federal income tax law.

(c) Cost. -- For purposes of subsection (a), the cost of each property purchased for industrial expansion or revitalization, or for conduct of an eligible research and development project, shall be determined under the following rules:

(1) Trade-ins. -- Cost shall not include the value of property given in trade or exchange for the property purchased for industrial expansion or revitalization.

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property shall not include any insurance proceeds received in compensation for the loss.

(3) Rental property. -- The cost of property acquired by lease for a term of ten years or longer shall be one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years.

(4) Property purchased for multiple use. -- The cost of property purchased for multiple business use including use as a component part of a new or expanded or revitalized industrial business, together with some other business or activity not eligible for credit under this article, shall be apportioned between such businesses and occupations. The amount apportioned to the new or expanded or revitalized industrial business, shall be considered to be as an eligible investment, subject to the conditions and limitations of this section.

(5) Self-constructed property. -- In the case of self-constructed property, the cost thereof shall be the amount properly charged to the capital account for purposes of depreciation.

§11-13D-5. Eligible investment for research and development.

(a) General. -- The eligible investment in a research and development project shall be the sum of the applicable percentage of the cost of land and depreciable property purchased for the conduct of an eligible research and development project, which is placed in service or use in this state during the taxable year, plus the amount of qualified research expenses (as defined in this section) deducted by the eligible taxpayer, for federal income tax purposes.

(b) Applicable percentage of property. -- For the purpose of subsection (a), the applicable percentage for land and depreciable property shall be determined under the following table:

 If useful life is: The applicable percentage is:

Less than 6 years 33 1/3

6 years or more but less than 8 years 66 2/3

8 years or more  100

The useful life of any property for purposes of this section shall be determined as of the date such property is first placed in service or use in this state by the taxpayer, determined in accordance with federal income tax law.

(c) Cost of property. -- For purposes of subsection (a), the cost of each property purchased for the conduct of an eligible research and development project shall be determined under the following rules:

(1) Trade-ins. -- Cost shall not include the value of property given in trade or exchange for the property purchased for conduct of the research and development project.

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property shall not include any insurance proceeds received in compensation for the loss.

(3) Rental property. -- The cost of property acquired by lease for a term of ten years or longer shall be one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years.

(4) Property purchased for multiple use. -- The cost of property purchased for multiple business use including direct use in the conduct of an eligible research and development project, together with some other business or activity not eligible under this section, shall be apportioned between such activities. The amount apportioned to the conduct of the eligible research and development project shall be considered to be eligible investment subject to the conditions and limitations of this section.

(5) Self-constructed property. -- In the case of self-constructed property, the cost thereof shall be the amount properly charged to the capital account for depreciation in accordance with federal income tax law.

(d) Qualified research expenses. -- For purposes of this section:

(1) "Qualified research expenses" means the sum of in-house and contract research expenses for qualified research allocated to this state, which are paid or incurred by the eligible taxpayer during the taxable year in carrying on any trade or business taxable under sections two-a, two-b and two-m, article thirteen of this chapter, or under section two-h of said article thirteen (in the case of manufacturing services only): Provided, That on and after July 1, 1987, "qualified research expenses" shall mean the sum of in-house and contract research expenses for qualified research, allocated to this state, which are paid or incurred by the eligible taxpayer during the taxable year in carrying on any trade or business taxable under article thirteen, thirteen-a or twenty-three of this chapter, that would have been taxable under section two-a, two-b, two-m or two-h (in the case of manufacturing services only) of said article thirteen, as in effect on January 1, 1985.

In no event shall "qualified research expenses" include any expense that must be capitalized and depreciated for federal income tax purposes, or any expenditure paid or incurred for the purpose of ascertaining the existence, location, extent or quality of any deposit of coal, limestone or other natural resource, including oil and natural gas.

(2) "In-house research expenses" means:

(A) Wages paid or incurred to an employee for qualified services performed in this state by such employee;

(B) Amounts paid or incurred for supplies used in the conduct of qualified research in this state; and

(C) Amounts paid or incurred to another person for the right to use personal property in the conduct of qualified research in this state.

(3) "Qualified services" means services consisting of:

(A) Engaging in qualified research in this state; or

(B) Engaging in the direct supervision or direct support of research activities in this state, which constitute qualified research.

If substantially all of the services performed by an individual for the taxpayer during the taxable year consist of services meeting the requirements of subparagraph (A) or (B), the term "qualified services" means all services performed by such individual for the taxable year.

(4) "Supplies" means any tangible property other than:

(A) Land or improvements to land; and

(B) Property of a character subject to depreciation for federal income tax purposes.

(5) "Wages" has the meaning given to such term by Section 3401(a) (26 U.S.C. § 3401(a)) of the Internal Revenue Code of 1954, as amended. In the case of self-employed individuals and owner-employees (within the meaning of Section 401(c)(1) (26 U.S.C. § 401(c)(1)) of said Internal Revenue Code), the term "wages" includes the earned income (as defined in Section 401(c)(2) (26 U.S.C. § 401(c)(2)) of said Internal Revenue Code of such employee. The term "wages" shall not include any amount taken into account in determining the federal targeted jobs credit under Section 51(a) (26 U.S.C. § 51(a)) of said Internal Revenue Code.

(6) "Contract research expenses" means:

(A) In general, sixty-five percent of any amount paid or incurred by the taxpayer to any person (other than an employee of the taxpayer) for qualified research.

(B) If any contract research expenses paid or incurred during any taxable year are attributable to qualified research to be conducted after the close of the taxable year, such amount shall be treated as paid or incurred during the taxable year during which the qualified research is conducted.

(7) "Qualified research" means research and development conducted for purposes relating to the technical, economic, financial, engineering or marketing aspects of expanding markets for and increasing sales of this state's natural resource products or manufactured products, or both: Provided, That it shall not include:

(A) Research or development conducted outside this state;

(B) Research or development not directly related to increasing the uses for and sales of this state's natural resource products and industrial products;

(C) Research in the social sciences or humanities; or

(D) Research and development to the extent funded by any grant, contract or otherwise by another person (or any governmental entity).

(e) Research by colleges, universities and certain research organizations. -- In general, sixty-five percent of the amount paid or incurred by a corporation to any nonprofit educational organization which is an institution of higher education (as defined in Section 3304(f) (26 U.S.C. § 3304(f)) of the Internal Revenue Code of 1954, as amended), an institution of higher education subject to the jurisdiction of the West Virginia board of regents, or any other nonprofit organization exempt from federal income taxes which is organized and operated primarily to conduct scientific research and is not a private foundation for federal income tax purposes for research to be performed by such organization shall be treated as contract research expenses. The preceding sentence shall apply only if the amount is paid or incurred pursuant to a written research agreement between the corporation and the qualified organization.

(f) Standards for determining qualified research expenses. -- In prescribing standards for determining which research and development expenses are considered to be West Virginia qualified research expenses for purposes of this section, the Tax Commissioner may consider: (1) The place where the services are performed; (2) the residence or business location of the person or persons performing the services; (3) the place where qualified research supplies are consumed; and (4) other factors that the Tax Commissioner believes relevant in determining whether or not the research and development expenses, land and depreciable property were purchased and used for qualified research, as defined in this article, during the taxable year.

§11-13D-5a. Eligible investment for qualified housing development project.

(a) General. -- The eligible investment in a qualified housing development project shall be the sum of the applicable percentage of the cost of land and depreciable property purchased for the construction of a qualified housing development project, which is placed in service or use in this state during the taxable year.

(b) Applicable percentage of property. -- For the purpose of subsection (a), the applicable percentage for land and depreciable property shall be determined under the following table:

If useful life is: The applicable percentage is:

Less than 4 years 0

4 years or more but less than 6 years 33 1/3

6 years or more but less than 8 years 66 2/3

8 years or more 100

The useful life of any property for purposes of this section shall be determined as of the date such property is first placed in service or use in this state by the taxpayer, determined in accordance with federal income tax law.

(c) Cost of property. -- For purposes of subsection (a), the cost of each item of property purchased for the conduct of an eligible housing development project shall be determined under the following rules:

(1) Trade-ins. -- Cost shall not include the value of property given in trade or exchange for the property purchased for construction of a qualified housing development project.

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty or is stolen, then the cost of replacement property shall not include any insurance proceeds received in compensation for the loss.

(3) Self-constructed property. -- In the case of self-constructed property, the cost thereof shall be the amount properly charged to the capital account for depreciation in accordance with federal income tax law.

(d) "Qualified housing development" or "qualified housing development project" means a residential housing development located in this state that contains five or more single-family contiguous residential housing units or multifamily residential housing units or multifamily residential buildings containing five or more residential housing units, which are contiguously located.

(e) "Residential housing unit" means any single-family dwelling or a single-family unit in a multifamily dwelling that is constructed for sale or lease to nontransients for use and occupancy as their primary permanent residence.

§11-13D-5b. Qualified investment for a management information services facility.

(a) General. -- The qualified investment in property purchased or leased for use as a component part of a management information services facility shall be the applicable percentage of the cost of each property purchased for a management information services facility, which is placed in service or use in this state, by the eligible taxpayer during the tax year as determined under this section.

(b) Applicable percentage. -- For the purposes of subsection (a), the applicable percentage for any property shall be determined under the following table:

If useful life or applicable The applicable

 lease term is: percentage is:

3 yrs. or more but less than 6 yrs. 33-1/3%

6 yrs. or more but less than 8 yrs. 66-2/3%

8 yrs. or more 100%

The useful life of any property for purposes of this section shall be the actual economic useful life determined as of the date such property is first placed in service or use in this state by the taxpayer, determined for financial accounting purposes in accordance with generally accepted principles of accounting.

(c) Cost. -- For purposes of subsection (a), the cost of each property purchased for a management information services facility shall be the fair market value or the actual cost, whichever is less, and in no event shall the cost exceed the fair market value, furthermore the cost shall be determined under the following rules:

(1) Trade-ins. -- Cost shall not include the value of property given in trade or exchange for the property purchased for a management information services facility.

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property shall not include any insurance proceeds received in compensation for the loss.

(3) Rental property. -- The cost of tangible personal property acquired by lease for a primary lease term of three or more years shall be seventy-five percent of the rent reserved for the shorter of:

(A) The first ten years of the primary lease term; or

(B) The primary lease term.

Such cost of leased tangible personal property shall then be multiplied by the applicable percentage determined under subsection (b) of this section based upon the shorter of the first ten years of the primary lease term or the primary lease term in order to determine qualified investment in such leased property.

(4) Property purchased for multiple use. -- Investment in property purchased for use in a management information services facility together with some other use shall not qualify for purposes of this credit.

(5) Self-constructed property. -- In the case of self-constructed property, the cost thereof shall be the amount properly charged to the capital account for purposes of depreciation for federal income tax purposes.

(6) Specific exclusions. --

(A) Investment in land or buildings, whether purchased or leased, shall not qualify for purposes of this management information services facility credit.

(B) Investment by purchase or lease in natural resources in place; and investment by purchase or lease in property, the cost or consideration for which cannot be quantified with any reasonable degree of accuracy at the time such property is placed in service or use, shall not qualify for purposes of this management information services facility credit.

(C) Investment in property purchased, or leased, or placed in service or use prior to April 1, 1991, or after March 31, 1993, shall not qualify for purposes of this management information services facility credit.

(D) Investment in property not purchased, or leased, either for the purpose of expanding an existing management information services facility in West Virginia pursuant to a national, regional or international relocation or consolidation of significant management information services in West Virginia; or for the purpose of establishing in this state a management information services facility that is new to West Virginia, shall not qualify for purposes of this management information services facility credit.

§11-13D-6. Forfeiture of unused tax credits, redetermination of credit required.

(a) Disposition of property or cessation of use. -- If during any taxable year, property with respect to which a tax credit has been allowed under this article:

(1) Is disposed of prior to the end of its useful life, as determined under section four, five, five-a or five-b of this article; or

(2) Ceases to be used in the new or expanded or revitalized industrial business, or in the eligible research and development project, or in the qualified housing development project, or in a management information services facility of the taxpayer in this state prior to the end of its useful life, as determined under said section four, five, five-a or five-b, then the unused portion of the credit allowed for such property shall be forfeited for the taxable year and all ensuing years. Additionally, except when the property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, the taxpayer shall redetermine the amount of credit allowed in all earlier years by reducing the applicable percentage of cost of such property allowed under said section four, five-a or five-b, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state in the industrial business or management information services business of the taxpayer. The taxpayer shall then file a reconciliation statement with its annual business franchise tax return for the year in which the forfeiture occurs and pay any additional taxes owed due to reduction of the amount of credit allowable for such earlier years, plus interest and any applicable penalties: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen, or both, of this chapter" shall mean "taxes imposed by articles thirteen, thirteen-a and twenty-three of this chapter or any one or combination of such articles of this chapter".

(b) Cessation of operation of industrial facility or eligible research and development project, qualified housing development project or management information services facility. -- If during any taxable year, the taxpayer ceases operation of an industrial facility or a management information services facility in this state, or of an eligible research and development project, or a qualified housing development project, for which credit was allowed under this article, or article thirteen-c of this chapter prior to its repeal, before expiration of the useful life of the property with respect to which tax credit has been allowed under this article or article thirteen-c of this chapter prior to its repeal, then the unused portion of the allowed credit shall be forfeited for the taxable year and all ensuing years. Additionally, except when the cessation is due to fire, flood, storm or other casualty, the taxpayer shall redetermine the amount of credit allowed in earlier years by reducing the applicable percentage of cost of such property allowed under section four, five, five-a or five-b, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state in the industrial business or management information services business of the taxpayer. The taxpayer shall then file a reconciliation statement with its annual business franchise tax return for the year in which the forfeiture occurs and pay any additional taxes owed due to reduction of the amount of credit allowable for such earlier years, plus interest and any applicable penalties: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen, or both, of this chapter" shall mean "taxes imposed by articles thirteen, thirteen-a and twenty-three of this chapter, or any one or combination of such articles of this chapter".

§11-13D-7. Transfer of eligible investment to successors.

(a) Mere change in form of business. -- Property may not be treated as disposed of under section six of this article by reason of a mere change in the form of conducting the business as long as the property is retained in a similar industrial business or management information services business activity in this state and the taxpayer retains a controlling interest in the successor business. In this event, the successor business may claim the amount of credit still available with respect to the industrial facility or facilities transferred or to the eligible research and development project or management information services facility and the taxpayer (transferor) may not be required to redetermine the amount of credit allowed in earlier years.

(b) Transfer or sale to successor. -- Provided that the Tax Commissioner gives prior approval for a transfer or sale, property may not be treated as disposed of under section six by reason of any transfer or sale to a successor business which continues to operate the industrial facility or management information services facility in this state. This requirement for prior approval may be waived by the Tax Commissioner at any time prior to, or subsequent to, the transfer or sale. Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this article for each taxable year subsequent to the taxable year of the transferor during which the transfer occurred and, for the year of transfer, an amount of annual credit for the year in the same proportion as the number of days remaining in the transferor's taxable year bears to the total number of days in the taxable year and the taxpayer (transferor) shall not be required to redetermine the amount of credit allowed in earlier years. In determining whether or not to approve a disposition pursuant to this subsection, the Tax Commissioner shall take into account the legislative findings and purpose contained in section one of this article in making the decision.

§11-13D-8. Prior industrial expansion credit preserved.

Any tax credit which an industrial taxpayer was legally entitled to claim under article thirteen-c of this chapter prior to its repeal effective March 1, 1985, shall be fully and completely preserved under the provisions of this article for the remainder of the ten-year credit period that was then in existence under said article thirteen-c.

§11-13D-9. Severability.

(a) If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby.

(b) If any provision of this article or the application thereof shall be made invalid or inapplicable by reason of the failure of the Legislature to enact any statute therein addressed or referred to, or by reason of the repeal or any other invalidation of any statute therein addressed or referred to, such failure to reenact on such repeal or invalidation of any such statute shall not affect, impair or invalidate the remainder of the said article, but shall be confined in its operation to the provision thereof directly involved with, pertaining to, addressing or referring to the said statute, and the application of such provision with regard to other statutes or in other instances not affected by any such invalid or repealed statute shall not be abrogated or diminished in any way.

§11-13D-10. Termination of credit, exception for electricity producers, preservation of entitlements.

(a) Except for persons taxable under section two-o, article thirteen of this chapter as described in subsection (b) of this section and persons described in subsection (c) of this section, no credit is available to any taxpayer under this article after December 31, 2002.

(b) Persons taxable under section two-o, article thirteen of this chapter that make eligible investment that qualifies for credit in accordance with the provisions of subsection (e), section three of this article in property used in the business activity taxable under section two-o, article thirteen of this chapter, are entitled to the credit determined under subsection (e), section three of this article, in accordance with the requirements and limitations of this article, without regard to whether such investment is made or credit claimed after December 31, 2002.

(c) Taxpayers who gained entitlement to any tax credit pursuant to the terms of this article prior to January 1, 2003, retain that entitlement, and may apply the credit in due course pursuant to the requirements and limitations of this article until the original ten-year entitlement has been exhausted or otherwise terminated.

§11-13E-1. Legislative finding and purpose.

The Legislature finds that production of coal is very important to the economy of this state, and that a sound economy is in the public interest and promotes the general welfare of the people of this state. In order to encourage capital investment in this state, through the construction of new or the expansion or revitalization of existing coal loading facilities, thereby increasing employment and economic development, there is hereby provided a business and occupation tax credit for investment in coal loading facilities.

§11-13E-2. Definitions.

(a) Any term used in this article shall have the same meaning as when used in a comparable context in article thirteen or thirteen-a of this chapter, unless a different meaning is clearly required by the context of its use or by definition in this article.

(b) For purposes of this article, the term:

(1) "Coal loading facility" means any building or structure specifically designed and solely used to transfer coal from a coal processing or preparation facility, or from a coal storage facility, or both, or from any means of transportation, to any means of rail or barge transportation used to move coal, including such land as is directly associated with and solely used for the coal loading facility, and including any device or combination of machinery and equipment that is directly associated with and solely used for the loading of coal. This definition applies only when the transfer is to any means of rail or barge transportation and specifically excludes the transfer to any other form of transportation. This may include, but is not limited to, the coal loading tipple, conveyors, coal storage facilities, weighing equipment and rail trackage, if they are directly associated with and solely used for the loading of coal. In no event may the eligible investment in a coal loading facility, for purposes of this credit, include the cost of any coal processing, preparation, blending or sizing facility or equipment, or any combination thereof, even though physically a part of the coal loading facility, and even though such coal processing, preparation, blending or sizing facility or equipment, or any combination thereof, is necessary or essential to the loading of commercially usable or marketable coal.

(2) "Eligible taxpayer" means any person subject to tax under article thirteen, thirteen-a or twenty-three of this chapter who purchases real or personal property, or a combination thereof, for the purpose of building or constructing a new or expanded coal loading facility in this state, or who revitalizes an existing coal loading facility located in this state, and upon completion, operates the new or expanded or revitalized coal loading facility: Provided, That on and after July 1, 1987, the phrase "subject to tax under article thirteen of this chapter" shall mean "subject to tax under article thirteen-a or twenty-three of this chapter."

(3) "Revitalization" means capital investment in a coal loading facility located in this state to replace or modernize buildings, structures, equipment, machinery and other tangible personal property directly associated with and solely used in the operation of a coal loading facility, including the acquisition of any real property directly associated with and solely used in the operation of a revitalized coal loading facility.

(4) Subject to subdivision (5) below, "property purchased for a coal loading facility" means real property and improvements thereto and tangible personal property, but only if such real or personal property is constructed or purchased for use as a component part of a new or expanded coal loading facility, or the revitalization of an existing coal loading facility located within this state. This term includes only tangible personal property with respect to which depreciation, or amortization in lieu of depreciation, is allowable in determining the personal income tax or corporation net income tax due under articles twenty-one or twenty-four of this chapter, and has a useful life at the time such property is placed in service or use in this state of four years or more. Property acquired by written lease for a term of ten years or longer, if used as a component part of a coal loading facility, shall be included within this definition.

(5) "Property purchased for a coal loading facility" shall not include:

(A) Property which qualifies or was qualified for credit under articles thirteen-c or thirteen-d of this chapter;

(B) Repair costs, including materials used in making the repair, unless for federal income tax purposes the cost of the repair must be capitalized and not expensed;

(C) Motor vehicles licensed by the department of motor vehicles;

(D) Airplanes;

(E) Off-premise transportation equipment;

(F) Property which is primarily used outside this state;

(G) Property purchased prior to April 1, 1983; and

(H) Property which is acquired incident to the purchase of the stock or assets of a taxpayer which property was or had been used by the seller in his business in this state, or which property was previously designated "property purchased for industrial expansion" or "property purchased for industrial revitalization" under article thirteen-d of this chapter and used to qualify for the tax credit provided by either of said articles.

(6) Property shall be deemed to have been purchased prior to a specified date only if:

(A) The physical construction, reconstruction or erection of the property was begun prior to the specified date, or such property was constructed, reconstructed, erected or acquired pursuant to a written contract as existing and binding on the taxpayer prior to the specified date;

(B) The machinery or equipment was owned by the taxpayer prior to the specified date or was acquired by the taxpayer pursuant to a binding purchase contract which was in effect prior to such date; or

(C) In the case of leased property, there was a binding written lease or contract to lease identifiable property in effect prior to the specified date.

§11-13E-3. Amount of credit allowed for coal loading facilities.

(a) There shall be allowed to eligible taxpayers a credit against the business and occupation taxes imposed by article thirteen, thirteen-a or twenty-three of this chapter, for investment in a new or expanded or revitalized coal loading facility. The amount of this credit shall be determined as hereinafter provided in this section.

(b) Pre March 1, 1985 investment. -- For investment in a new or expanded or revitalized coal loading facility made on or after April 1, 1983, and prior to March 1, 1985, the amount of this credit shall be equal to ten percent of the cost of the eligible investment (as determined in section four) made in a coal loading facility and shall reduce the business and occupation taxes imposed by section two, article thirteen of this chapter, under sections two-a, two-b and two-h of said article thirteen of this chapter, subject to the following conditions and limitations:

(1) The allowable credit shall be applied over a ten-year period at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the eligible investment is first placed in service or use in this state.

(2) The amount of annual credit allowed shall not reduce the business and occupation taxes imposed by section two, article thirteen of this chapter, under section two-a of said article thirteen, on the business of producing coal; under section two-b of said article thirteen, on the business of manufacturing, compounding or preparing coal for sale; and under section two-h of said article thirteen, on the activity of loading coal, below fifty percent of the amount which would be imposed for the taxable year in the absence of the annual exemption allowed by section three, article thirteen of this chapter.

(3) When in any taxable year the eligible taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of credits allowed under sections two-b and two-h, article thirteen of this chapter, shall not exceed fifty percent of the tax liability under said sections, on manufacturing or manufacturing-service activity.

(4) No carryover to a subsequent tax year or carryback to a prior tax year shall be allowed for the amount of any unused portion of the credit allowed under this subsection (b) for the taxable year. Any unused credit shall be forfeited.

(5) No credit shall be allowed under this subsection for any property purchased for a coal loading facility prior to April 1, 1983.

(c) Post February 28, 1985 investment. -- For investment in a new or expanded or revitalized coal loading facility made on or after March 1, 1985, the amount of the credit shall be equal to ten percent of the cost of eligible investment (as determined in section four) made in a coal loading facility and shall reduce the business and occupation tax imposed under article thirteen of this chapter, subject to the following conditions and limitations:

(1) The amount of credit allowable shall be applied over a ten-year period, at the rate of one-tenth thereof per taxable year, beginning with the taxable year in which the eligible investment is first placed in service or use in this state.

(2) The amount of annual credit allowed shall not reduce the business and occupation taxes under article thirteen of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax, computed before application of the annual exemption allowed by section three, article thirteen of this chapter.

(3) When in any taxable year the eligible taxpayer is entitled to claim credit computed under two or more subsections of this section, the total amount of all credits allowable under this section shall not exceed the fifty percent rule outlined in subdivision (2) of this subsection.

(4) No carryover to a subsequent taxable year or carryback to a prior taxable year shall be allowed for the amount of any unused portion of any annual credit allowance. Such unused credit shall be forfeited.

(5) When in any taxable year the eligible taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all such credits allowable for the taxable year shall not reduce the amount of business and occupation taxes under article thirteen of this chapter, below fifty percent of the amount which would be imposed for such taxable year computed before allowance of the annual exemption allowed by section three, article thirteen of this chapter.

(6) No credit shall be allowed under this subsection (c) for any property purchased on or after March 1, 1985, for which credit is allowed under article thirteen-c of this chapter.

(7) No credit shall be allowed under this subsection (c) for any property purchased for a coal loading facility prior to March 1, 1985.

(d) Credit limitation. -- The aggregate amount of credit allowable under this article and article thirteen-d of this chapter, against the taxes imposed by article thirteen of this chapter, for the taxable year, shall in no event exceed fifty percent of the tax due for the taxable year computed prior to application of the tax credits provided by this article and article thirteen-d of this chapter, and the annual exemption provided by section three, article thirteen of this chapter.

(e) Application of credit after June 30, 1987. -- On and after July 1, 1987, the credits allowed under subsections (b), (c), (e) and (f) of this section, shall be applied to and reduce the taxes imposed by articles thirteen, thirteen-a and twenty-three of this chapter: Provided, That this credit shall not reduce the sum of the net tax liability of the taxpayer under articles thirteen, thirteen-a and twenty-three of this chapter for the taxable year below fifty percent of the amount thereof, determined before application of the credits allowed by this article and article thirteen-c or thirteen-d, or both, of this chapter.

§11-13E-3a. Application of credit after June 30, 1987.

On and after July 1, 1987, the credits allowed under section three shall be applied to and reduce the taxes imposed by articles thirteen, thirteen-a, fifteen, fifteen-a and twenty-three of this chapter: Provided, That this credit shall not reduce the sum of the net tax liability of the taxpayer under articles thirteen, thirteen-a and twenty-three of this chapter, or under articles fifteen and fifteen-a of this chapter on purchases directly used or consumed in taxpayer's qualified investment activity, for the taxable year below fifty percent of the amount thereof, determined before application of the credits allowed by this article and article thirteen-c or thirteen-d, or both, of this chapter.

§11-13E-3b. Application of credit after June 30, 1993.

Notwithstanding any other provision of this code to the contrary, for taxable years ending on and after July 1, 1993, the credits allowed under section three may not be applied to reduce the taxes imposed by articles fifteen and fifteen-a of this chapter.

§11-13E-4. Eligible investment.

(a) General. -- The eligible investment in property purchased for a new or expanded or revitalized coal loading facility shall be the applicable percentage of the cost of each property purchased for the purpose of such coal loading facility, which is placed in service or use in this state by the eligible taxpayer during the taxable year.

(b) Applicable percentage. -- For the purpose of subsection (a), the applicable percentage for any property shall be determined under the following table:

If useful life is: The applicable percentage is:

4 years or more but less than 6 years. 33 1/3%

6 years or more but less than 8 years 66 2/3%

8 years or more 100%

The useful life of any property for purposes of this section shall be determined as of the date such property is first placed in service or use in this state by the taxpayer, and is the period during which the property may reasonably be expected to be useful to the taxpayer as part of a coal loading facility.

(c) Cost. -- For purposes of subsection (a), the cost of each property purchased for a coal loading facility shall be determined under the following rules:

(1) Trade-ins. -- Cost shall not include the value of any property given in trade or exchange for the property purchased for a coal loading facility.

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty or is stolen, the cost of replacement property shall not include any insurance proceeds received in compensation for the loss.

(3) Rental property. -- The cost of property acquired by lease for a term of ten years or longer shall be one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years. Lease renewals, subleases or assignments shall not be considered.

(4) Property purchased for multiple use. -- The cost of property purchased for multiple business use including use as a component part of a coal loading facility business together with some other business or activity not eligible for credit under this article shall be apportioned between such businesses or activities. The amount apportioned to the activity of loading coal shall be considered as an eligible investment subject to the conditions and limitations of this section.

(5) Self-constructed property. -- In the case of self-constructed property, the cost thereof shall be the amount properly charged to the capital account for purposes of depreciation.

§11-13E-5. Forfeiture of unused tax credits; redetermination of credit required.

(a) Disposition of property or cessation of use. -- If during any taxable year, property with respect to which a tax credit has been allowed under this article:

(1) Is disposed of prior to the end of its useful life, as determined under section three of this article; or

(2) Ceases to be used in a coal loading facility by the eligible taxpayer, in this state, prior to the end of its useful life, as determined under said section three of this article, then the unused portion of the credit allowed for such property shall be forfeited for the taxable year and all ensuing years. Additionally, except when the property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, the taxpayer shall redetermine the amount of credit allowed in all earlier years by reducing the applicable percentage of cost of such property allowed under said section three of this article, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state as a coal loading facility of the eligible taxpayer. The taxpayer shall then file a reconciliation statement with its annual business and occupation tax return for the year in which the forfeiture occurs and pay any additional business and occupation taxes, plus interest and any applicable penalties: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen (or both) of this chapter" shall mean "taxes imposed by articles thirteen, thirteen-a and twenty-three of this chapter (or any one or combination of such articles of this chapter)."

(b) Cessation of operation of coal loading facility. -- If during any taxable year the eligible taxpayer ceases operation of a coal loading facility in this state, for which credit was allowed under this article, before expiration of the useful life of the property with respect to which tax credit has been allowed under this article, then the unused portion of the allowed credit shall be forfeited for the taxable year and all ensuing years. Additionally, except when the cessation is due to fire, flood, storm or other casualty, the taxpayer shall redetermine the amount of credit allowed in earlier years by reducing the applicable percentage of cost of such property allowed under section three of this article, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state in a coal loading facility of the eligible taxpayer. The taxpayer shall then file a reconciliation statement with its annual business and occupation tax return for the year in which the forfeiture occurs and pay any additional business and occupation taxes, plus interest and any applicable penalties: Provided, That on and after July 1, 1987, the phrase "taxes imposed by article twelve-a or thirteen (or both) of this chapter" shall mean " taxes imposed by articles thirteen, thirteen-a and twenty-three of this chapter (or any one or combination of such articles of this chapter)."

§11-13E-6. Transfer of eligible investment to successors.

(a) Mere change in form of business. -- Property shall not be treated as disposed of under section five of this article by reason of a mere change in the form of conducting the business as long as the property is used as or in a coal loading facility in this state and the taxpayer retains a controlling interest in the successor business. In this event, the successor business shall be allowed to claim the amount of credit still available with respect to the coal loading facility or facilities transferred and the taxpayer (transferor) shall not be required to redetermine the amount of credit allowed in earlier years.

(b) Transfer or sale to successor. -- Property shall not be treated as disposed of under section five by reason of any sale to a successor business which continues to operate the coal loading facility in this state. Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this article for each subsequent taxable year, and the taxpayer (transferor) shall not be required to redetermine the amount of credit allowed in earlier years.

§11-13E-7. Severability.

(a) If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby.

(b) If any provision of this article or the application thereof shall be made invalid or inapplicable by reason of the failure of the Legislature to enact any statute therein addressed or referred to, or by reason of the repeal or any other invalidation of any statute therein addressed or referred to, such failure to reenact on such repeal or invalidation of any such statute shall not affect, impair or invalidate the remainder of the said article, but shall be confined in its operation to the provision thereof directly involved with, pertaining to, addressing or referring to the said statute, and the application of such provision with regard to other statutes or in other instances not affected by any such invalid or repealed statute shall not be abrogated or diminished in any way.

§11-13F-1. Legislative Purpose.

In order to reimburse public utilities for the revenue deficiencies that they incur in providing special reduced electric or natural gas, water, or sewer utility rates to low-income residential customers in accordance with the provisions of §24-2A-1 et seq. of this code, there is hereby provided a business and occupation tax credit for reducing electric, natural gas, water, or sewer utility rates for low-income residential customers.

§11-13F-2. Definitions.

(a) Any term used in this article shall have the same meaning as when used in a comparable context in §11-13-1 et seq. of this code, unless a different meaning is clearly required by the context of its use or by definition in this article.

(b) For purposes of this article, the term:

(1) "Eligible taxpayer" means a utility which has provided electric or natural gas service, or both electric and natural gas service; or water or sewer service, or both water and sewer service, to qualified low-income residential customers at special reduced rates.

(2) "Cost of providing utility service at special reduced rates" means the amount certified by the Public Service Commission under the provisions of §24-2A-2 of this code as the revenue deficiency incurred by a public utility in providing special reduced rates for electric, natural gas, sewer, or water utility service as required by §24-2A-1 or approved pursuant to §24-2A-5  of this code.

(3) "Special reduced rates" means the rates ordered by the Public Service Commission under the authority of §24-2A-1 or §24-2A-5 of this code.

(4) "Qualified low-income residential customers" means those utility customers eligible to receive electric, natural gas, water, or sewer utility service under special reduced rates.

§11-13F-3. Amount of credit.

(a) There shall be allowed to any eligible taxpayer a credit against the business and occupation taxes imposed by §11-13-1 et seq. of this code, for reducing electric and natural gas utility rates. The amount of the credit available to any eligible taxpayer shall be equal to its cost of providing electric or natural gas service, or both, at special reduced rates as certified by the Public Service Commission under the provisions of §24-2A-2 of this code to qualified residential customers, less any reimbursement of said cost which the taxpayer has received through any other means.

(b) For tax years beginning on or after January 1, 2019, there shall be allowed to any eligible taxpayer a credit against the business and occupation taxes imposed by §11-13-1 et seq. of this code, for reducing rates for providing electric, natural gas, sewer or water service, or any combination of electric, natural gas, water or sewer services. The amount of the credit available to any eligible taxpayer shall be equal to its cost of providing utility service at special reduced rates to qualified residential customers, less any reimbursement of said cost which the taxpayer has received through any other means.

§11-13F-4. When credit may be taken.

An eligible taxpayer may claim a credit allowed under this article against its business and occupation tax liability for the year in which it receives certification of the amount of its revenue deficiency from the Public Service Commission.

Notwithstanding the provisions of section four, article thirteen of this chapter to the contrary, in determining the amount of estimated business and occupation taxes reported on any monthly or quarterly estimate of business and occupation taxes that is due for any portion of the calendar year prior to July 1, of such year, no estimated credit may be claimed or considered.

In estimating the amount of monthly or quarterly tax due for the months of July and succeeding months in any calendar year, the eligible taxpayer may divide the amount certified as its revenue deficiency by the Public Service Commission, by the number of returns (estimated and annual) that will become due for the period July through December of each year. The resultant quotient shall be the maximum amount allowed to be taken as credit on each said return: Provided, That in no event may application of this credit reduce the tax liability below zero.

§11-13F-5. Application of credit.

(a) Any unused portion of a credit allowed under this article may be taken as a credit against corporation net income taxes due for the taxable year, as provided in section eleven, article twenty-four of this chapter.

(b) If any portion of the amount certified as its revenue deficiency by the Public Service Commission is not recovered under subsection (a), it may be carried over to the subsequent year for business and occupation tax purposes and shall be applied as a credit before any other credits for that year are applied.

(c) In no event shall an eligible taxpayer be allowed to recover more than one hundred percent of its certified revenue deficiency.

§11-13G-1. Legislative purpose.

In order to reimburse telephone utilities for the revenue deficiencies which they incur in providing telephone service at special reduced rates to certain low-income residential customers in accordance with the provisions of article two-c, chapter twenty-four of this code, there is hereby provided a tax credit for providing telephone service at special rates to qualified low-income residential customers.

§11-13G-2. Definitions.

(a) Any term used in this article shall have the same meaning as when used in a comparable context in articles twelve-a and thirteen-b of this chapter, unless a different meaning is clearly required by the context in which it is used or by definition in this article.

(b) As used in this article, the term:

(1) "Eligible taxpayer" means a utility which has provided telephone service to qualified low-income residential customers at special reduced rates.

(2) "Cost of providing telephone service at special reduced rates" means the amount certified by the Public Service Commission under the provisions of section two, article two-c, chapter twenty-four of this code as the revenue deficiency incurred by a telephone utility in providing telephone service at special reduced rates as required by section one, article two-c, chapter twenty-four of this code.

(3) "Special reduced rates" means the rates ordered by the Public Service Commission under the authority of section one, article two-c, chapter twenty-four of this code.

(4) "Qualified low-income residential customers" means customers eligible to receive telephone service at special reduced rates.

§11-13G-3. Amount of credit.

There shall be allowed to any eligible taxpayer a credit against the carrier income tax imposed by article twelve-a of this chapter or telecommunications tax imposed by article thirteen-b of this chapter, whichever such tax may be imposed upon the eligible taxpayer, for providing telephone service at special reduced rates to qualified low-income residential customers. The amount of the credit available to any eligible taxpayer shall be equal to its cost of providing telephone service at special reduced rates to qualified low-income residential customers less any reimbursement of such cost which the taxpayer has received through other means.

§11-13G-4. When credit may be taken.

An eligible taxpayer may claim a credit allowed under section three of this article against its tax liability for the taxable year for which it receives certification of the amount of its revenue deficiency from the Public Service Commission.

§11-13G-5. Application of credit.

(a) Any unused portion of a credit allowed under this article may be taken as a credit against corporation net income taxes due for the taxable year as provided in section eleven-a, article twenty-four of this chapter.

(b) If any portion of the amount certified as the eligible taxpayer's revenue deficiency by the Public Service Commission is not recovered under subsection (a) hereof, the unrecovered amount may be carried over to the subsequent year as a tax credit as allowed by section three of this article and shall be applied as a credit before any other credits for that year are applied.

(c) In no event shall an eligible taxpayer be allowed to recover more than one hundred percent of its certified revenue deficiency.

§11-13H-1.

Repealed.

Acts, 2002 Reg. Sess., Ch. 104.

§11-13I-1. Legislative purpose.

[Repealed]

§11-13I-2. Credit allowed; amount and duration of credit; recapture of credit and effective date.

[Repealed]

§11-13I-3. Application of credit; limitation of credit; tax commissioner to promulgate forms and legislative rule; notice of credit.

[Repealed]

§11-13J-1. Short title.

This article shall be known as the "Neighborhood Investment Program Act".

§11-13J-2. Legislative finding and purpose.

It is the finding of the Legislature that community-based organizations can be a powerful force in community development. However, in West Virginia their effectiveness has historically been weakened by meager resources. Private corporations and individuals in West Virginia possess the resources to aid community-based organizations in their efforts to assist neighborhoods and communities. Due to the lack of clear incentives, the private and not-for-profit sectors have often not taken advantage of opportunities to collaborate with community-based organizations to the full extent possible by investment and participation in local programs.

Therefore, the neighborhood investment program act is hereby enacted with the intent that it provide incentives for contributions to qualifying charitable projects. It is the intent of the Legislature that this act encourage private sector businesses and individuals to contribute capital to community-based organizations which establish projects to assist neighborhoods and local communities through such services as health care, counseling, emergency assistance, crime prevention, education, housing, job training and physical and environmental improvements.

§11-13J-3. Definitions.

(a) General. — When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition in this article.

(b) Terms defined. —

“Affiliate” includes all business entities which are affiliates of each other when either directly or indirectly:

(A) One business entity controls or has the power to control the other business entity; or

(B) A third party or third parties control or have the power to control both affiliates. In determining whether business entities are independently owned and operated and whether or not affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

 “Capacity building” means to generally enhance the capacity of the community to achieve improvements and to obtain the community services described in subparagraphs (i) through (v), inclusive, of the definition of that term, as set forth in this subsection. Capacity building includes, but is not limited to, improvement of the means, or capacity, to:

(i) Access, obtain and use private, charitable and governmental assistance programs, administrative assistance and private, charitable and governmental resources or funds;

(ii) Fulfill legal, bureaucratic and administrative requirements and qualifications for accessing assistance, resources or funds; and

(iii) Attract and direct political and community attention to needs of the community for the purpose of increasing access to and use of assistance, resources or funds for a given purpose, goal or need.

“Commissioner or Tax Commissioner” are used interchangeably in this article and mean the Tax Commissioner of the State of West Virginia, or his or her delegate.

“Community services” means services, provided at no charge whatsoever, of:

(i) Providing any type of health, personal finance, psychological or behavioral, religious, legal, marital, educational or housing counseling and advice to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens or in an economically disadvantaged area;

(ii) Providing emergency assistance or medical care to economically disadvantaged citizens or to a specifically designated group of economically disadvantaged citizens or in an economically disadvantaged area;

(iii) Establishing, maintaining or operating recreational facilities, or housing facilities for economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens or in an economically disadvantaged area;

(iv) Providing economic development assistance to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens; without regard to whether they are located in an economically disadvantaged area, or to individuals, groups or neighborhood or community organizations, in an economically disadvantaged area; or

(v) Providing community technical assistance and capacity building to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area.

“Compensation” means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.

“Community-based” means:

(i) The project is to be managed locally, without national, state, multistate or international affiliations;

(ii) The project will benefit local citizens in the immediate geographic area where the project is to operate; and

(iii) The sponsor of the project is a local entity, rather than a statewide, national or international organization or an affiliate of a statewide, national or international organization.

“Corporation” means any corporation, joint-stock company or association and any business conducted by a trustee or trustees in which interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.

“Crime prevention” means any activity which aids in the reduction of crime.

“Delegate” in the phrase "or his or her delegate", when used in reference to the Tax Commissioner, means any officer or employee of the Tax Division of the Department of Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

“Direct need programs” means a program, organization or community endowment that serve persons whose annual income is no more than 125 percent of the federal poverty level with self-reliance and independence from government assistance as its primary objective.

“Director or Director of the West Virginia Development Office” means the Director of the West Virginia Development Office.

“Economically disadvantaged area” means any region of the state with a poverty rate greater than the average statewide poverty rate as determined by the U. S. Census Bureau’s most recently published data.

“Economically disadvantaged citizen” means a natural person, who during the current taxable year has, or during the immediately preceding taxable year had, an annual gross personal income not exceeding one hundred twenty-five percent of the federal designated poverty level for personal incomes, and who is a domiciliary and resident of this state.

“Education” means any type of scholastic instruction to, or scholarship by, an individual that enables that individual to prepare for better life opportunities. Education does not include courses in physical training, physical conditioning, physical education, sports training, sports camps and similar training or conditioning courses, except for physical therapy prescribed by a physician or other person licensed to prescribe courses of medical treatment under this code.

“Eligible contribution” consists of:

(A)(i) Cash;

(ii) Tangible personal property, valued at its fair market value;

(iii) Real property, valued at its fair market value;

(iv) In-kind professional services, valued at seventy-five percent of fair market value; and

(v) Publicly traded common or preferred stock representing ownership in a corporation, valued at its fair market value in accordance with the regulations of the Internal Revenue Service: Provided, That contributed stock shall be sold by the project transferee within one hundred eighty days of its receipt.

(B) For purposes of this definition, the value of in-kind professional services will not qualify as an eligible contribution unless the services are:

(i) Reasonably priced and valued, and reasonably necessary services customarily and normally provided by the contributor in the normal course of business to customers, clients or patients other than those encompassed by the project plan;

(ii) Not reimbursable, in whole or in part, from sources other than the tax credit provided under this article; and

(iii) Services which are not available without cost elsewhere in the community;

(C) “Professional services” means only those services provided directly by a physician licensed to practice in this state, those services provided directly by a dentist licensed to practice in this state, those services provided directly by a lawyer licensed to practice in this state, those services provided directly by a registered nurse, licensed practical nurse, dental hygienist or other health care professional licensed to practice in this state, those services provided directly by a certified public accountant or public accountant licensed to practice in this state, and those services provided directly by an architect licensed to practice in this state;

(D) Minimum contribution. — No contribution of cash, stock, property or professional services or any combination thereof contributed in any tax year by any taxpayer having a fair market value of less than $500 qualifies as an eligible contribution;

(E) Maximum contribution. — No contribution of cash, stock, property or professional services or any combination thereof contributed in any tax year by any taxpayer having a fair market value in excess of $200,000 qualifies as an eligible contribution; and

(F) Limitations. — Not more than twenty-five percent of total eligible contributions to a certified project may be in-kind contributions. Not more than twenty-five percent of total eligible contributions made by any taxpayer to any certified project may be in-kind contributions.

Eligible taxpayer. —

(A) “Eligible taxpayer” means any person subject to the taxes imposed by article twenty-one, twenty-three or twenty-four of this chapter which makes an eligible contribution to a qualified charitable organization pursuant to the terms of a certified project plan for the purpose of providing neighborhood assistance, community services or crime prevention, or for the purpose of providing job training or education for individuals not employed by the contributing taxpayer or an affiliate of the contributing taxpayer or a person related to the contributing taxpayer;

(B) “Eligible taxpayer” also includes an affiliated group of taxpayers if the group elects to file a consolidated corporation net income tax return under article twenty-four of this chapter and if one or more affiliates included in the affiliated group would qualify as an eligible taxpayer under paragraph (A) of this subdivision.

“Emergency assistance” means the provision of basic needs including shelter, clothing, food, water, medical attention or supplies, personal safety, or funds to obtain these to an individual facing circumstances that prevent him or her from securing or maintaining these basic needs.

“Includes and including”, when used in a definition contained in this article, shall not be considered to exclude other things otherwise within the meaning of the term defined.

“Job training” means instruction to an individual that enables the individual to acquire vocational skills to become employable or able to seek a higher grade of employment.

“Natural person or individual” means a human being. The terms “natural person” and “individual” do not mean, and specifically exclude, any corporation, limited liability company, partnership, joint venture, trust, organization, association, agency, governmental subdivision, syndicate, affiliate or affiliation, group, unit or any entity other than a human being.

 “Neighborhood assistance” means either:

(A) Furnishing financial assistance, labor, material and technical advice to aid in the physical or economic improvement of any part or all of an economically disadvantaged area; or

(B) Furnishing technical advice to promote higher employment in an economically disadvantaged area.

 “Neighborhood organization” means any organization:

(A) Which is performing community services, as defined in this section; and

(B) Which is exempt from income taxation under Section 501(c)(3) of the Internal Revenue Code.

 “Partnership and partner” includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust or estate, a corporation or a sole proprietorship. The term “partner” includes a member in a syndicate, group, pool, joint venture or organization.

“Person” includes any natural person, corporation, limited liability company or partnership.

“Project transferee” means any neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person that receives an eligible contribution or part of an eligible contribution from an eligible taxpayer for the purpose of directly or indirectly providing neighborhood assistance, community services or crime prevention, or for the purpose of providing job training or education or other services or assistance pursuant to a project plan. The project transferee is typically the first entity or person receiving eligible contributions from eligible taxpayers under a project plan. However, in the case of eligible contributions of in-kind services or other eligible contributions or portions of those contributions made pursuant to a certified project plan directly to indigent, disadvantaged or needy persons, economically disadvantaged citizens or other persons or organizations under the sponsorship or auspices of any neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person as a certified project participant, the eligible contributions shall be considered to have been made to the entity, organization or person under whose sponsorship or auspices the eligible contributions are made, and that entity, organization or person is considered to be the project transferee with relation to those eligible contributions. The project transferee is the entity, organization or person that is liable under this article for payment of the project certification fee to the West Virginia Development Office. The term “project transferee” means and includes any considered project transferee, considered as such under the provisions of this article.

“Qualified charitable organization” means a neighborhood organization, as defined in this section, which is the sponsor of a project which has received certification by the Director of the West Virginia Development Office pursuant to the requirements of this article: Provided, That no organization may qualify as a qualified organization for purposes of this article if the organization is not registered with this state as required under the Solicitation of Charitable Funds Act.

“Related person” or “person related to” a stated taxpayer means:

(A) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer;

(B) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer;

(C) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer.

For purposes of this article, “control”, with respect to a corporation means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation which entitles its owner to vote. “Control”, with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in Section 267(c), other than paragraph (3) of that section, of the United States Internal Revenue Code, as amended.

“State fiscal year” means a twelve-month period beginning on July 1 and ending on June 30.

“Taxpayer” means any person subject to the tax imposed by article twenty-one, twenty-three or twenty-four of this chapter, or any one or combination of the articles of this chapter.

“Technical assistance” means:

(A) Assistance in understanding, using and fulfilling the legal, bureaucratic and administrative requirements and qualifications which must be negotiated for the purpose of effectively accessing, obtaining and using private, charitable, not-for-profit or governmental assistance, resources or funds, and maximizing the value of the assistance, resources or fund;

(B) Assistance provided by any person holding a license under West Virginia law to practice any licensed profession or occupation, by which the person, in the practice of the profession or occupation, assists economically disadvantaged citizens or the persons in an economically disadvantaged area by:

(i) Providing any type of health, personal finance, psychological or behavioral, religious, legal, marital, educational or housing counseling and advice to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens or in an economically disadvantaged area;

(ii) Providing emergency assistance or medical care to economically disadvantaged citizens or to a specifically designated group of economically disadvantaged citizens or in an economically disadvantaged area;

(iii) Establishing, maintaining or operating recreational facilities, or housing facilities for economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens or in an economically disadvantaged area;

(iv) Providing economic development assistance to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens, without regard to whether they are located in an economically disadvantaged area, or to individuals, groups or neighborhood or community organizations, in an economically disadvantaged area; or

(v) Providing community technical assistance and capacity building to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area.

§11-13J-4. Eligibility for tax credits; creation of neighborhood investment fund; certification of project plans by the West Virginia Development Office.

(a) A neighborhood organization which seeks to sponsor a project and have that project certified pursuant to this article shall submit to the Director of the West Virginia Development Office an application for certification of a project plan, in such form as the director shall prescribe, setting forth the project to be implemented, the identity of all project participant organizations, the economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens, to be assisted by the project, or the economically disadvantaged area or areas selected for assistance by the project, the amount of total tax credits to be created by the proposed project pursuant to the receipt of eligible contributions from eligible taxpayers under this article, the amount of the total estimated eligible contributions to be received pursuant to the project and the schedule for implementing the project.

(b) Project certification fee; payment of costs; revolving fund. —

(1) (A) Project certification fee. — Any project transferee that receives eligible contributions under or pursuant to a certified project plan shall pay to the West Virginia Development Office a project certification fee in the amount of three percent of the amount of the total eligible contributions received by such project transferee pursuant to the certified project plan. The project certification fee shall be paid to the West Virginia Development Office within thirty days of the receipt of any eligible contribution, or portion thereof.

(B) Eligible contributions made through direct service to end users or recipients, or contributions to end users or recipients. — In the case of eligible contributions of in-kind services or other eligible contributions or portions thereof made pursuant to a certified project plan and contributed or provided directly to indigent, disadvantaged or needy persons, economically disadvantaged citizens or other persons or organizations made under the sponsorship or auspices of any neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person as a certified project participant, such eligible contributions shall be deemed to have been made to the entity, organization or person under whose sponsorship or auspices such eligible contributions are made, and that entity, organization or person is deemed to be the project transferee with relation to those eligible contributions. Such deemed project transferee shall be liable for the project certification fee due for such eligible contributions.

(C) Computation of fee based on fair market value. — In the case of eligible contributions consisting of in-kind services, tangible personal property or realty, the project transferee shall pay to the West Virginia Development Office a project certification fee in the amount of three percent of the fair market value of eligible contributions received pursuant to the certified project plan.

(2) Sanctions for failure to timely pay the project certification fee. — Failure to timely pay the project certification fee imposed by this section shall be grounds for imposition of any of the following sanctions, to be imposed by the Director of the West Virginia Development Office at the discretion of the director:

(A) Prospective revocation of the project certification. —

No tax credit shall be allowed for any project for which certification has been revoked for periods subsequent to the effective date of revocation. Credit taken by any taxpayer in accordance with this article pursuant to the making of an eligible contribution to a project transferee pursuant to a certified project plan prior to the effective date of revocation of project certification shall not be subject to recapture by reason of revocation of the certification. However, such credit shall otherwise be subject to audit and adjustment or recapture in accordance with the requirements of this article.

(B) Retroactive withdrawal of the project certification. —

No tax credit shall be allowed for any project for which certification has been withdrawn. Credit taken by any taxpayer in accordance with this article pursuant to the making of an eligible contribution to a project transferee pursuant to a certified project plan for which certification is later withdrawn pursuant to the provisions of this section shall be subject to recapture upon withdrawal of the certification.

(C) Suspension of the project certification for a stated period of time. —

No tax credit shall be allowed for contributions made during the suspension period for a project. Credit taken by any taxpayer in accordance with this article pursuant to the making of an eligible contribution to a project transferee pursuant to a certified project plan prior to or subsequent to the suspension period shall not be subject to recapture by reason of the suspension. However, such credit shall otherwise be subject to audit and adjustment or recapture in accordance with the requirements of this article.

(D) Temporary or permanent disqualification of one or more project transferees, neighborhood organizations, qualified charitable organizations, charitable organizations or other organizations, entities or persons from participation in a particular specified certified project. —

No tax credit shall be allowed under this article for any contribution made during the disqualification period to any project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person disqualified under this section from participation in a certified project. Tax credit taken by any taxpayer in accordance with this article pursuant to the making of an eligible contribution to any project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person pursuant to a certified project plan prior to or subsequent to the disqualification period shall not be subject to recapture by reason of the disqualification of the recipient thereof. However, such credit shall otherwise be subject to audit and adjustment or recapture in accordance with the requirements of this article.

(E) Temporary or permanent disqualification of any project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person, or group thereof, from participation in any and all certified projects currently in existence or to be formed, proposed or certified under this article. —

(i) No tax credit shall be allowed under this article for any contribution made during the disqualification period to any project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person disqualified under this section from participation in any and all certified projects under this article. Tax credit taken by any eligible taxpayer in accordance with this article pursuant to the making of an eligible contribution to the project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person disqualified from participation in any and all certified projects under this article, pursuant to a certified project plan prior to or subsequent to the disqualification period shall not be subject to recapture by reason of the disqualification. However, such credit shall otherwise be subject to audit and adjustment or recapture in accordance with the requirements of this article; and

(ii) No certification shall be issued during the disqualification period for any proposed project in which a project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person disqualified under this section from participation in any and all certified projects is listed as a proposed project participant.

(F) Any combination of the aforementioned sanctions.

(3) Audits and investigations. — The West Virginia Development Office or the Department of Revenue, or both, may initiate and carry out investigations or audits of any recipient of any eligible contribution under this article, any eligible taxpayer or any project transferee to determine whether the project certification fee imposed by this section has been paid in accordance with the requirements of this article.

(4) Procedures, failure to timely pay the project certification fee upon written demand. —

(A) Written demand. — The Director of the West Virginia Development Office shall, upon a reasonable belief that a project transferee has failed to timely pay the fee imposed by this section, issue a written demand for payment thereof, plus interest determined at the interest rate prescribed under section seventeen, article ten of this chapter, in such form as the Director of the West Virginia Development Office may specify. The Director of the West Virginia Development Office may also impose a penalty for failure to timely pay the project certification fee in the amount of twenty percent of the amount of the project certification fee due and interest due. Such demand shall notify the project transferee of the opportunity to show that the project certification fee is not due and owing.

(B) Failure to pay pursuant to written demand. —

Failure of the project transferee to pay any project certification fee due, with interest and penalties, as stated in the written demand for payment of the project certification fee, within thirty days of service of such demand, and failure of the project transferee to prove to the satisfaction of the Director of the West Virginia Development Office that the fee imposed by this section is not due and owing, shall result in a determination by the Director of the West Virginia Development Office that sanctions shall apply.

(C) Notice of pending sanctions. — Upon the making of a determination by the Director of the West Virginia Development Office that sanctions for failure to pay the project certification fee apply, the Director of the West Virginia Development Office shall serve upon the project transferee from which the project certification fee, or some portion thereof, is due and owing, a notice of pending sanctions. If the project transferee from which the certified project fee, or some portion thereof, is due and owing is not the applicant for project certification, then an informational copy of the notice of pending sanctions shall also be served upon the applicant for project certification.

(D) Service of notice, content of notice. — The notice of pending sanctions shall be served upon the delinquent project transferee in the same manner as an assessment of tax in accordance with article ten of this chapter. Such notice of pending sanctions shall state the sanctions to be applied in accordance with this section, the effective date or dates of such sanctions, with specific statements of whether any sanction is to be applied retroactively or in part retroactively, and the commencement and termination dates for any suspensions of certification or temporary disqualifications of any program transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person to be disqualified under this section from participation in certified projects. The notice of pending sanctions shall state that sanctions shall be imposed sixty days after service of the notice of pending sanctions upon the delinquent project transferee, unless the delinquent project transferee pays the amount of the project certification fee due and owing, plus interest and penalties.

(E) Appeals. — The project transferee may file an appeal of pending sanctions as if the notice of pending sanctions were an assessment of tax under article ten of this chapter, and the matter on appeal shall be subject to the procedures set forth in article ten of this chapter. On appeal, the burden of proof shall be on the project transferee to prove that the project certification fee and associated interest and penalties are not due and owing. The review on appeal shall be limited to:

(i) The issue of whether a failure to timely pay the project certification fee or any portion thereof has occurred, the time period or periods over which such failure occurred, and whether such failure continues to occur;

(ii) The amount of the project certification fee and interest due; and

(iii) The mathematical and methodological accuracy of the computation of the project certification fee, interest and penalties.

(F) Statutory confidentiality. — No information, document or proceeding brought pursuant to this section, relating to the liability of any project transferee for the project certification fee, interest or penalties imposed under this section is subject to the confidentiality provisions of article ten of this chapter or any other confidentiality provision of this code. However, any proceeding relating to any amount of tax due or the recapture of tax credit taken under this article or any adjustment of the amount of tax credit taken under this article is subject to the provisions of article ten of this chapter, including all statutory confidentiality provisions, and shall be subject to all other applicable statutory tax confidentiality provisions of this code.

(G) Effect of a final determination, waiver of penalties or sanctions. — The notice of pending sanctions shall become final sixty days after service, unless an appeal is filed under this section, and shall not be subject to further appeal by the recipient thereof. When a determination has become final that a project transferee has failed to timely pay the project certification fee, or any part thereof, the sanctions described in the notice of pending sanctions shall apply, effective as of the date set forth in that notice, unless the project certification fee, interest and penalties due are paid to the West Virginia Development Office within thirty days of the date on which the determination has become final. The twenty percent penalty authorized under this section may be imposed, adjusted, withdrawn or waived, in whole or in part, at the discretion of the Director of the West Virginia Development Office. However, payment of the project certification fee and interest due shall not be subject to waiver. The sanctions for failure to pay the project certification fee authorized under this section may be imposed, adjusted, withdrawn or waived, in whole or in part, at the discretion of the Director of the West Virginia Development Office.

(c) Within sixty days after the close of the regular meeting of the Neighborhood Investment Advisory Board at which a complete application for approval of a proposed project is considered by the board, the Director of the West Virginia Development Office shall certify, or deny certification of, the proposed project for which such application has been filed: Provided, That applications for which the board requires additional information may be considered at the next regular meeting of the board. Those applications not approved by the director within sixty days of final action of the board shall be deemed disapproved by operation of law.

(d) The West Virginia Development Office shall promptly notify an applicant as to whether an application for certification of a project plan has been approved or disapproved.

(e) Those prospective qualified charitable organizations which receive certification of a project plan, and which otherwise comply with the requirements of this article so as to become qualified charitable organizations, as defined in section three of this article, may receive eligible contributions, as defined in said section. Eligible taxpayers which make eligible contributions shall receive a tax credit as provided in section five of this article. No tax credit may be granted under this article for any contribution except eligible contributions made to a project which has been certified in accordance with the requirements of this article prior to the making of the contribution. No tax credit may be granted under this article for any contribution which, if allowed, would cause the amount of tax credit generated by the project to exceed the maximum amount of tax credit for which the project was certified as stated in the application for project certification filed with the West Virginia Development Office.

(f) All applications for certification of a project filed with the West Virginia Development Office, whether such project is certified or denied certification, are public information which may be viewed and copied by the public and, at the discretion of the West Virginia Development Office, published by the West Virginia Development Office.

(g) Project transferees shall file biannual reports with the West Virginia Development Office on the progress of the certified project. The biannual reports shall be filed in a form approved by the director.

(h) Revolving fund. —

(1) For the purpose of permitting payments to be made and costs to be met for operation of the program established by this article, there is hereby created a revolving fund for the West Virginia Development Office, which shall be known as the Neighborhood Investment Fund. All money received by the West Virginia Development Office under this article shall be paid into the State Treasury, and shall be deposited to the credit of the Neighborhood Investment Fund, and shall be expended only for the purposes of defraying the costs of the Neighborhood Investment Program Advisory Board and the West Virginia Development Office in administering the program established pursuant to this article, unless otherwise directed by the Legislature.

(2) The Neighborhood Investment Fund shall be accumulated and administered as follows:

(A) Payments received under this article shall be deposited into the Neighborhood Investment Fund.

(B) Any appropriations made to the Neighborhood Investment Fund shall not be deemed to have expired at the end of any fiscal period.

§11-13J-4a. Neighborhood Investment Program Advisory Board.

(a) There is hereby created a Neighborhood Investment Program Advisory Board, which shall consist of 12 voting members and the chairperson.

(b) Chairperson. —

(1) The Director of the West Virginia Development Office, or the designee of the Director of the West Virginia Development Office, shall be the ex officio chairperson of the Neighborhood Investment Program Advisory Board.

(2) The chairperson shall vote on actions of the board only in the event of a tie vote, in which case the chairperson's vote shall be the deciding vote.

(c) Board members. —

(1) Four members shall be officers or members of the boards of directors of unrelated corporations which are not affiliated with one another and which are currently licensed to do business in West Virginia.

(2) Four members shall be executive directors, officers, or members of the boards of directors of unrelated not-for-profit organizations which are not affiliated with one another which currently hold charitable organization status under Section 501(c)(3) of the Internal Revenue Code and which are currently licensed to do business in West Virginia.

(3) Four members shall be economically disadvantaged citizens of the state that, for the taxable year immediately preceding the year of appointment to the board, had an annual gross personal income that was not more than 125 percent of the federal designated poverty level for personal incomes, and who has been a domiciliary and resident of this state for at least one year at the time of appointment.

A member appointed under this subdivision is not disqualified from completion of his or her term if his or her income in the year of appointment or in any year subsequent to the year of appointment exceeds 125 percent of the federal designated poverty level. A member shall not be eligible for reappointment under this subdivision unless he or she meets the original qualifications for appointment: Provided, That such member may be reappointed pursuant to qualification under subdivision (1) or (2) of this subsection if the member meets the requirements of subdivision (1) or (2), respectively.

(d) Limitations; terms of members; appointments. —

(1) Six members, exclusive of the chairperson, shall be appointed from each congressional district. Not more than seven of the members, exclusive of the chairperson, may belong to the same political party. Members shall be eligible for reappointment. However, no member may serve for more than three consecutive terms.

(2) Appointment terms. —

(A) Except for initial appointments described under subdivision (3) of this subsection, and except for midterm special appointments made to fill irregular vacancies on the board, members shall be appointed for terms of three years each.

(B) Except for midterm special appointments made to fill irregular vacancies on the board, appointment terms shall begin on July 1 of the beginning year. All appointment terms, special and regular, shall end on June 30 of the ending year.

(3) Selection of members. —

(A) For the initial appointment of members under this subdivision, members shall be selected by the Director of the West Virginia Development Office.

(B) At the end of a member's term, the chairperson shall solicit new member nominations from the board and appoint the most appropriate person to serve, in compliance with the requirements set forth in this section.

(C) Vacancies on the board shall be filled in the same manner as the original appointments for the duration of the unexpired term.

(e) Quorum; meetings; funding. —

(1) The presence of a majority of the members of the board constitutes a quorum for the transaction of business. The board shall elect from among its members a vice chairperson and such other officers as are necessary.

(2) The board shall meet not less than two times during the fiscal year, and additional meetings may be held upon a call of the chairperson or of a majority of the members: Provided, That no meeting of the board shall be required if the total amount of tax credits available for the fiscal year have been allotted.

(3) Board members shall be reimbursed by the West Virginia Development Office for sums necessary to carry out responsibilities of the board and for reasonable travel expenses to attend board meetings.

(f) Annual report. — The board shall make a report to the Governor and the Legislature within 30 days of the close of each fiscal year. The report shall include summaries of all meetings of the board, an analysis of the overall progress of the program, fiscal concerns, the relative impact the program is having on the state and any suggestions and policy recommendations that the board may have. The report shall be public information made available to the general public for examination and copying. The board is authorized to publish the annual report, should the board elect to do so.

(g) Duties of the board. —

(1) Administrative duties. — The board shall be responsible for advising the West Virginia Development Office concerning the administrative obligations of the program.

(2) Project evaluation and approval; prohibition on project promotion. —

(A) The board shall select and approve projects, which may then be certified by the Director of the West Virginia Development Office pursuant to section four of this article.

(B) Only projects sponsored by qualified charitable organizations, as defined in section three of this article, may be approved by the board or certified by the Director of the West Virginia Development Office. An applicant that does not hold current status as a charitable organization under Section 501(c)(3) of the Internal Revenue Code may not receive project approval from the board, or project certification from the Director of the West Virginia Development Office, for any proposed project. Failure of any applicant to provide convincing documentation proving such status as a charitable organization under Section 501(c)(3) of the Internal Revenue Code shall result in automatic denial of project approval and denial of project certification under this article.

(3) Criteria for evaluation. — In evaluating projects for approval, the board shall give priority to projects based upon the following criteria. A proposed project shall be favored if:

(A) The project is community based.

(B) The proposed project will primarily serve low-income persons.

(C) The proposed project will serve highly distressed neighborhoods or communities.

(D) The project plan incorporates collaborative partnerships among nonprofit groups, businesses, government organizations, and other community organizations.

(E) The applicant or sponsor of the project has demonstrated a proven capacity to deliver the proposed services.

(F) The applicant or sponsor of the project historically maintains reasonable administrative costs.

(G) The applicant produces a strong showing of need for the services which the proposed project would provide, and produces convincing documentation of that need.

(H) The proposed project is innovative, novel, creative, or unique in program approach.

(I) The proposed project is a direct need program or will provide emergency assistance.

(4) If an applicant is directly or indirectly affiliated with one or more board members, those members shall not discuss the proposals with one or more board members, and shall not have a vote when that project is considered for final approval or disapproval.

(5) Project approval by the board. — Proposed projects shall be approved or denied approval by a majority vote of the board after competitive comparison with proposed projects of other applicants.

(h) Project certification by the Director of the West Virginia Development Office. —

(1) Upon issuance of approval for a project by the board, the approved project shall be certified by the Director of the West Virginia Development Office: Provided, That no certification may issue for any project, even though the project may have been approved by the board, if the issuance of certification for such project will cause the aggregate amount of tax credits certified to exceed the limitation set forth in this article. No certification may be issued by the Director of the West Virginia Development Office for any project which has not been approved by the board.

(2) The West Virginia Development Office shall promptly notify applicants of the issuance of certification for their projects and shall issue tax credit vouchers to certified project applicants in the amount of the tax credit represented by the project.

(3) The West Virginia Development Office may provide incidental technical support and guidance to projects certified under this article and may monitor the progress of the projects. The West Virginia Development Office shall make a biannual report to the board on the progress of certified projects and the program generally.

§11-13J-5. Amount of credit allowed.

(a) Credit allowed. -- Eligible taxpayers shall be allowed a credit against taxes imposed by this state, the application of which and the amount of which shall be determined as provided in this article.

(b) Amount of credit. -- The amount of credit allowable is fifty percent of the amount of the taxpayer's "eligible contribution".

(c) Application of credit within five years. -- The amount of credit allowable must be taken within a five-year period, beginning with the tax year in which the taxpayer irrevocably transfers its eligible contribution to the project plan transferee. Notwithstanding any other provision of this article to the contrary, the tax credit which a taxpayer receives under this article may not exceed $100,000 in any tax year of the eligible taxpayer. A tax credit shall be allowable under this article only for the tax year of the eligible taxpayer in which the eligible contribution is irretrievably transferred to the project plan transferee, and for the next succeeding four tax years.

§11-13J-6. Application of annual credit allowance.

(a) In general. -- The aggregate annual credit allowance for a current tax year is an amount equal to the sum of the following:

(1) The portion allowed under section five of this article for an eligible contribution placed into service or use during a prior tax year; plus

(2) The portion allowed under section five of this article for an eligible contribution placed into service or use during the current tax year.

(b) Application of credit allowance. -- The amount determined under subsection (a) of this section shall be allowed as a credit for tax years ending on and after July 1, 1996, as follows:

(1) Business franchise taxes. --

The amount determined under subsection (a) of this section shall be applied to reduce up to fifty percent of the taxes imposed by article twenty-three of this chapter for the tax year determined after application of the credits against tax provided in section seventeen of said article, but before application of any other allowable credits against tax.

(2) Corporation net income taxes. -- After application of subdivision (1) of this subsection, any unused credit shall next be applied to reduce up to fifty percent of the taxes imposed by article twenty-four of this chapter, for the tax year determined before application of allowable credits against tax.

(3) Personal income taxes. --

(A) If the eligible taxpayer is an electing small business corporation as defined in Section 1361 of the United States Internal Revenue Code, a limited liability company treated as a partnership for purposes of the federal income tax, a partnership or a sole proprietorship, then any unused credit, after application of subdivisions (1) and (2) of this subsection, shall be allowed as a credit against up to fifty percent of the taxes imposed by article twenty-one of this chapter on income of proprietors, partners or shareholders, subject to the limitations set forth in paragraphs (B) and (C) of this subdivision.

(B) Electing small business corporations, partnerships and other unincorporated organizations shall allocate the credit allowed by this article among the members thereof in the same manner as profits and losses are allocated for the tax year.

(C) Any taxpayer subject to the personal income tax under article twenty-one of this chapter, who makes an eligible contribution to a qualified charitable organization, and receives back from that organization a properly completed neighborhood investment program tax credit voucher, is eligible to claim the credit. The credit shall be allowed without regard to the source of that income, whether it is from wages, passive investment or retirement income, income from a trade or business or any other source.

(c) Unused credit forfeited. -- If any credit to an eligible taxpayer remains after application of subsections (a) and (b) of this section, the amount thereof may be carried forward no more than four years from the tax year in which the contribution was made. Unused credits of an eligible taxpayer may not be carried forward beyond the time limits imposed under section five of this article and the total maximum aggregate tax credits certified in any state fiscal year may not exceed $3,000,000.

(d) Addition of deductions, decreasing adjustments or decreasing modifications taken in determining taxable income for which credit is taken. -- Any deduction, decreasing adjustment or decreasing modification taken by any taxpayer in determining federal taxable income which affects West Virginia taxable income or in determining West Virginia taxable income under article twenty-one or twenty-four of this chapter for the taxable year for any charitable contribution, or payment or portion thereof, which qualifies as an eligible contribution under this article and for which credit is claimed, shall be added to West Virginia taxable income in determining the tax liability of the taxpayer under article twenty-one or twenty-four of this chapter, as appropriate, before application of the credit allowed under this article for the taxable year.

(e) Annual limit. –- The aggregate annual credit allowance to any taxpayer may not exceed $100,000 in any tax year.

§11-13J-7. Assertion of the tax credit against tax.

(a) Any eligible taxpayer which desires to claim a tax credit as provided in this article shall file with the West Virginia Tax Commissioner, in such form as the Tax Commissioner may prescribe, an annual tax credit reporting schedule stating the amount of the eligible contribution which the taxpayer has made. The eligible taxpayer shall file with the tax credit reporting schedule a certificate, issued by the director of the West Virginia Development Office, evidencing approval of the project plan by the director of the West Virginia Development Office, pursuant to which the contribution was made.

(b) In the tax credit reporting schedule required under this section, the taxpayer shall provide all information required by the Tax Commissioner's prescribed form.

(c) The tax credit reporting schedule shall be filed with the annual return for the taxes imposed by article twenty-four of this chapter for the tax year in which the eligible contribution is first irrevocably transferred to a transferee pursuant to a certified project plan: Provided, That, if the eligible taxpayer is not required to file a tax return under article twenty-four of this chapter, then such tax credit reporting schedule shall be filed with the annual return for the taxes imposed by article twenty-three of this chapter for such year: Provided, however, That, if the eligible taxpayer is not required to file a tax return under article twenty-three or twenty-four of this chapter, then such tax credit reporting schedule shall be filed with the annual return for the taxes imposed by article twenty-one of this chapter for such year.

(d) The tax credit reporting schedule shall be accompanied by such proof of payment as the Tax Commissioner may prescribe, showing that the amount to be contributed under the certified project plan has been paid to the transferee designated in the certified plan solely for the certified project.

(e) The Tax Commissioner may disallow any credit claimed under this article for which a properly completed tax credit reporting schedule or a properly completed and valid statement or proof of payment of the eligible contribution, or other required documentation, statements or proofs are not timely filed.

§11-13J-8. Total maximum aggregate tax credit amount.

(a) The amount of tax credits allowed under this article may not exceed $3,000,000 in any state fiscal year.

(b) Applications for project certification shall be filed with the West Virginia Development Office. The West Virginia Development Office shall record the date each application is filed. All complete and valid applications shall be considered for approval or disapproval in a timely manner by the neighborhood assistance advisory board. The board may, in its discretion, consider applications for approval or disapproval at special or interim meetings for expedited processing.

(c) When the total amount of tax credits certified under this article equals the maximum amount of tax credits allowed, as specified in subsection (a) of this section, in any state fiscal year, no further certifications shall be issued in that same fiscal year. Upon approval of a project by the board, the Director of the West Virginia Development Office shall certify the approved project unless certification is prohibited by the limitations and requirements set forth in this article.

(d) All applications filed in any state fiscal year and not certified during the state fiscal year in which they are filed shall be null and void by operation of law on the last day of the state fiscal year in which they are filed, and all applicants which elect to seek certification of a project plan shall file anew on and after the first day of the succeeding state fiscal year.

§11-13J-9. Credit recapture; interest; penalties; additions to tax; statute of limitations.

If it appears upon audit or otherwise that an eligible taxpayer has not made contribution as represented, or should it appear that contributions made by an eligible taxpayer were made to the direct or indirect benefit of the eligible taxpayer making the contribution or to the direct or indirect benefit of any person related to the eligible taxpayer making the contribution, the credit previously allowed under this article shall be recaptured, and amended returns shall be filed for any tax year for which the credit was taken. Any additional taxes due under this chapter shall be remitted with the amended return or returns filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty, which may be waived by the Tax Commissioner if the taxpayer shows that the overclaimed amount was due to reasonable cause and not due to willful neglect, and such other penalties and additions to tax as may be applicable pursuant to the provisions of article ten of this chapter. Notwithstanding the provisions of article ten of this chapter, the statute of limitations for the issuance of an assessment of tax by the Tax Commissioner shall be five years from the date of the filing of any tax return on which this credit was taken or five years from the date of payment of any tax liability calculated pursuant to the assertion of this credit, whichever is later.

§11-13J-10. Public information relating to tax credit.

(a) The Tax Commissioner shall annually publish in the State Register the name of every taxpayer asserting this credit on a tax return, and the amount of any credit asserted on a tax return under this article by each such taxpayer, and the confidentiality provisions of §11-1-4a or §11-10-5d of this code, or of any other provision of this code, do not apply to such information.

(b) The provisions of §11-13J-10(a) of this code shall have no force or effect on or after January 1, 2022.

§11-13J-11. Audits and examinations; information sharing.

(a) The Tax Commissioner may, at his or her discretion, perform joint audits or examinations with the West Virginia Development Office or independently audit or examine the books, records and other information, as appropriate, of any taxpayer or of any person, organization or entity which has filed an application for certification of a project plan under this article, or of any taxpayer which has asserted this credit on a tax return, or of any person, organization or entity believed to have relevant information.

(b) For purposes of joint audits, or any administrative or judicial proceeding or procedure relating to any tax credit taken, asserted or sought under this article, the Tax Commissioner may share such tax information as the Tax Commissioner may deem appropriate with the West Virginia Development Office, notwithstanding the provisions of section four-a, article one of this chapter or section five-d, article ten of said chapter, or any other provision of this code to the contrary.

§11-13J-12. Program evaluation; expiration of credit; preservation of entitlement.

Beginning on December 15, 2005, and every third year thereafter, the director shall secure an independent review of the Neighborhood Investment Program created by this article and present the findings to the Joint Committee on Government and Finance. Unless sooner terminated by law, the Neighborhood Investment Program Act terminates on July 1, 2026. There is no entitlement to the tax credit under this article for a contribution made to a certified project after July 1, 2026, and no credit is available to any taxpayer for any contribution made after that date. Taxpayers which have gained entitlement to the credit pursuant to eligible contributions made to certified projects prior to July 1, 2026, shall retain that entitlement and apply the credit in due course pursuant to the requirements and limitations of this article.

§11-13K-1. Findings and purpose.

The Legislature finds that it is an important public policy to promote environmentally sound practices within the agricultural industry in this state. Therefore, a credit against the taxes imposed by articles twenty-one and twenty-four of this chapter shall be allowed in an amount equaling twenty-five percent of all expenditures for the purchase and installation of agricultural equipment and structures for agricultural operations within this state which serve to protect the environment.

§11-13K-2. Definitions.

As used in this section the following terms have the meanings ascribed in this section:

(a) "Advanced technology pesticide and fertilizer application equipment" means machinery certified by the West Virginia Division of Environmental Protection as providing precise pesticide and fertilizer application. The agriculture commission and the West Virginia Division of Environmental Protection shall provide technical assistance to the Tax Commissioner to determine appropriate specifications for machinery which would provide for more precise pesticide and fertilizer application to reduce the potential for adverse environmental impacts for purposes of application of the credit provided by this article. The machinery shall include, but not be limited to:

(1) Sprayers for pesticides and liquid fertilizers;

(2) Pneumatic fertilizer applicators;

(3) Monitors, computer regulators and heights adjustable booms for sprayers and liquid fertilizer applicators;

(4) Manure applicators; and

(5) Tramline adapters.

(b) "Conservation tillage equipment" means a planter or drill commonly known as a "no-till" planter or drill, designed to minimize disturbance of the soil in planting crops, including such planters or drills which may be attached to equipment already owned by the taxpayer.

(c) "Dead poultry composting facility" is a structure consisting of a roof, an impervious weight bearing foundation, such as concrete and rot resistant building materials such as pressure treated lumber or similar material, which is used to biologically treat poultry carcasses by composting.

(d) "Mortality incinerator" means a structure certified by the director of the Division of Environmental Protection which is used for the purpose of burning animal carcasses.

(e) "Nutrient management plan" or "best management practice" means an established procedure for managing the amount, form, placement and timing of applications of poultry litter, certified by the commissioner of agriculture as being free from organisms that are not found in poultry litter produced in this state, as fertilizer application.

(f) "Nutrient management system" means an established procedure for managing the amount, form, placement and timing of applications of plant nutrients.

(g) "Qualified agricultural equipment" means advanced technology pesticide and fertilizer application equipment, conservation tillage equipment, dead poultry composting facilities, nutrient management plans, best management practices, nutrient management systems, streambank and shoreline protection systems, stream channel stabilization systems, stream crossing or access plans, waste management systems, waste storage facilities, and waste treatment lagoons located on or at agricultural operations in this state and certified by the Tax Commissioner in accordance with section five of this article.

(h) "Streambank and shoreline protection system" means the consistent use of vegetation or structures to stabilize and protect banks of streams, lakes, estuaries, or excavated channels in order to stabilize or protect banks of streams, lakes, estuaries or excavated channels for one or more of the following purposes:

(1) To prevent the loss of land or damage to utilities, roads, buildings, or other facilities adjacent to the banks;

(2) To maintain the capacity of the channel;

(3) To control channel meander that would adversely affect downstream facilities;

(4) To reduce sediment loads causing downstream damages and pollution; or

(5) To improve the stream for recreation or as a habitat for fish and wildlife.

(i) "Stream channel stabilization system" means an established structure for the stabilization of the channel of a stream.

(j) "Stream crossing or access plan" means the maintenance of a stabilized area to provide for crossing of a stream by livestock and farm machinery, or to provide access to the stream for livestock water.

(k) "Waste management system" means a planned system in which all necessary components are installed for managing liquid and solid waste, including runoff from concentrated waste areas at an agricultural operation, in a manner that does not degrade air, soil or water resources.

(l) "Waste storage facility" means a waste impoundment made by constructing an embankment or excavating a pit or dugout, or both, or by fabricating a facility for the storage of waste from livestock or poultry.

(m) "Waste treatment lagoon" means an impoundment made by excavation or earthfill for biological treatment of animal or other agricultural waste.

§11-13K-3. Amount of credit.

(a) There is allowed to eligible taxpayers who have made investments in qualified agricultural equipment in this state, a credit against taxes imposed by articles twenty-one and twenty-four of this chapter in the amount set forth in subsection (b) of this section.

(b) The amount of credit is equal to twenty-five percent of the purchase price of qualified agricultural equipment, but not to exceed $2,500 for purchases during a taxable year or the total amount of tax imposed by articles twenty-one or twenty-four of this chapter, whichever is less, in the year of purchase of qualified agricultural equipment. If the amount of the credit exceeds the taxpayer's tax liability for the taxable year, the amount which exceeds the tax liability may be carried over and applied as a credit against the tax liability of the taxpayer pursuant to article twenty-one or twenty-four of this chapter to each of the next five taxable years unless sooner used.

(c) The amount of credit for the investment in the plan or practice described in subsection (e), section two of this article is equal to twenty-five percent of the purchase price of the poultry litter certified in writing to the Tax Commissioner by the commissioner of agriculture as having been applied in the established procedure described in legislative rules promulgated by the commissioner of agriculture in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§11-13K-4. Proration of credit.

For purposes of this section, the amount of any credit attributable to the purchase of agricultural equipment by a partnership or electing small business corporation (S corporation) shall be allocated to the individual partners or shareholders in proportion to their ownership or interest in the partnership or S corporation.

§11-13K-5. Legislative rules.

On or before May 31, 1996, the Tax Commissioner and the agricultural commissioner shall propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code to determine the equipment which shall be certified as qualified agricultural equipment for purposes of application of the credit provided for in this article not inconsistent with the provisions of section two of this article. The Tax Commissioner shall also propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code regarding the administration of the credit established pursuant to this article.

§11-13K-6. Effective date.

The credit shall be allowed for taxable years beginning on or after July 1, 1997.

§11-13L-1. Short title.

This article shall be known and cited as the "Natural Gas Industry Jobs Retention Act".

§11-13L-2. Definitions.

(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined.

(1) "Affiliate" means and includes all persons, as defined in this section, which are affiliates of each other when either directly or indirectly:

(A) One person controls or has the power to control the other, or

(B) A third party or third parties control or have the power to control two persons, the two thus being affiliates. In determining whether concerns are independently owned and operated and whether or not an affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

(2) "Commissioner" or "Tax Commissioner" means the Tax Commissioner of the State of West Virginia, or the Tax Commissioner's delegate.

(3) "Corporation" means any corporation, joint-stock company or association, and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.

(4) "Delegate", when used in reference to the Tax Commissioner, means any officer or employee of the Tax Division of the Department of Tax and Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

(5) "Eligible taxpayer" means any person subject to the tax prescribed by section two-e, article thirteen of this chapter that had at least one qualified employee on January 1, 1996. "Eligible taxpayer" also means and includes those members of an affiliated group of taxpayers engaged in a unitary business, in which one or more members of the affiliated group is a person subject to the tax prescribed by section two-e, article thirteen of this chapter that had at least one qualified employee on January 1,1996. Affiliates not engaged in the unitary business with an affiliated group member subject to the tax prescribed by section two-e, article thirteen of this chapter that had at least one qualified employee on January 1, 1996, do not qualify as eligible taxpayers.

(6) "Full-time employee" means an employee who works, is on a work site, on paid vacation leave or other paid leave, in the aggregate, at least one thousand five hundred hours per year.

(7) "Natural person" or "individual" means a human being.

(8) "New job" means a full-time employment position held by a West Virginia resident domiciled in this state which did not exist in this state with any employer prior to the taxpayer's current taxable year.

(9) "Partnership" and "partner" means and includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust or estate, a corporation or a sole proprietorship. The term "partner" includes a member in a syndicate, group, pool, joint venture or organization.

(10) "Person" means and includes any natural person, corporation, limited liability company or partnership.

(11) "Qualified employee" means a West Virginia resident domiciled in this state who is a full-time employee of a taxpayer.

(12) "Related entity", "related person", "entity related to" or "person related to" means:

(A) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer;

(B) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer;

(C) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer.

For purposes of this article, "control", with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation which entitles its owner to vote. "Control", with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the United States Internal Revenue Code, as amended: Provided, That paragraph (3) of section 267(c) of the United States Internal Revenue Code shall not apply.

(13) "Tax year" or "taxable year" means the tax year of the taxpayer for federal income tax purposes.

(14) "Taxpayer" means any person subject to the tax prescribed by section two-e, article thirteen of this chapter.

(15) "Unitary business" means a business structured so that the operations of the business segments of a corporation, including segments consisting of members of an affiliated group of commonly owned and controlled corporations or entities, contribute to or depend on each other in such a way as to result in functional integration between business segments in engaging in the natural gas business. "Unitary natural gas business" includes business segments involved in the exploration, development, purchase, transportation, storage, marketing, distribution and sale of natural gas and distribution and sale of heavier hydrocarbons, such as propane, and such business segments or affiliates which provide services supporting any of the foregoing natural gas business activities. Where the taxpayer asserts that business segments are unitary, the taxpayer has the burden of proof.

§11-13L-3. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit against the tax prescribed under section two-e, article thirteen of this chapter, as determined under this article.

§11-13L-4. Amount of credit allowed.

(a) Credit allowed. -- Eligible taxpayers shall be allowed a credit against the tax prescribed by section two-e, article thirteen of this chapter, the application of which and the amount of which shall be determined as provided in this article.

(b) Amount of credit. --

(1) The amount of credit allowed to the eligible taxpayer is $1,000 multiplied by the number of qualified employees employed by the eligible taxpayer during the taxable year, as determined under section six of this article: Provided, That if the number of qualified employees employed by the eligible taxpayer during the taxable year, as determined under section six of this article, is less than sixty percent of the number of qualified employees employed by the eligible taxpayer on January 1, 1996, as adjusted under subdivision (2) of this subsection, then no credit shall be allowed for the taxable year.

(2) For purposes of this section, the Tax Commissioner shall adjust the number of qualified employees determined to be in place on January 1, 1996, to reflect a sale, transfer or spin off of an affiliate or segment of the business of an eligible taxpayer in circumstances where the sale, transfer or spin off does not result in a decrease in the number of jobs in place in this state. A sale, transfer or spin off that results in no loss of jobs in this state shall not cause the eligible taxpayer to lose entitlement to the credit in circumstances where the sixty percent limitation set forth in this section would otherwise operate to cause a disallowance of the credit. This subsection shall not be construed to prevent adjustment of the amount of credit allowed to the eligible taxpayer based upon the number of qualified employees employed by the eligible taxpayer during the taxable year, as determined under section six of this article.

(3) For any taxable year subsequent to a taxable year when credit was disallowed by reason of employment falling below the sixty percent level, an eligible taxpayer may be allowed credit under this article if the number of qualified employees employed by the eligible taxpayer during the taxable year, as determined under section six of this article, has increased to a number equal to or greater than sixty percent of the number of qualified employees employed by the eligible taxpayer on January 1, 1996.

§11-13L-5. Application of annual credit allowance.

(a) Application of credit. -- The amount of credit allowed shall be taken against the tax liabilities of the eligible taxpayer for the current taxable year prescribed by section two-e, article thirteen of this chapter. Any credit remaining after application of the credit against the tax liabilities for the current taxable year is forfeited and shall not carry back to any prior taxable year and shall not carry forward to any subsequent taxable year. The credit allowed under this article shall be applied after application of all other applicable tax credits allowed for the taxable year against the tax prescribed by section two-e, article thirteen of this chapter.

(b) For purposes of asserting the credit against tax, the taxpayer shall prepare and file with the monthly tax return filed under section two-e, article thirteen of this chapter for the last month of the taxpayer's tax year, an annual schedule showing the amount of tax paid for the taxable year, and the amount of credit allowed under this article. The annual schedule shall set forth the information and be in the form prescribed by the Tax Commissioner. The credit allowed under this article shall be allowed against a pro rata portion of monthly tax liabilities of the qualified taxpayer under section two-e, article thirteen of this chapter, in accordance with the procedures and requirements prescribed by the Tax Commissioner. The annual total tax liability and total tax credit allowed under this article are subject to adjustment and reconciliation pursuant to the filing of the annual schedule. The taxpayer shall pay any tax due or claim any credit allowable for the taxable year and shown on the annual schedule, with the monthly tax return filed under section two-e, article thirteen of this chapter for the last month of the taxpayer's tax year.

§11-13L-6. Annual computation of the number of jobs held by qualified employees.

(a) The taxpayer shall determine the number of jobs held by qualified employees of the taxpayer in the taxable year by calculating the average number of qualified employees holding jobs for each month of the taxable year by averaging the beginning and ending monthly employment of qualified employees, then totalling the monthly averages and dividing that total by twelve.

(b) If, as a result of business growth, merger, expansion or any other growth in the number of jobs in place, the number of full-time employees employed by a taxpayer in the taxable year exceeds (1) the number of qualified employees employed by the taxpayer on January 1, 1996, or (2) the number of qualified employees employed by the taxpayer during the prior taxable year, then only that portion of the increase in the number of full-time jobs that results from the creation of new jobs, as defined in section two of this article, shall be counted, along with qualified jobs in place from the prior taxable year, as part of the total number of qualified jobs in place for the taxable year. Preexisting jobs carried over from a corporation or other entity merged with the taxpayer, and not reflective of a true increase in the number of jobs in West Virginia, or preexisting jobs formerly in place with a contract service provider which are taken over or supplanted by the internal operations of the taxpayer, or any other increase in the count of jobs in place with a taxpayer which is not reflective of new jobs, as defined in section two of this article, shall not count as qualified jobs for purposes of the credit allowed under this article.

(c) The Tax Commissioner may prescribe alternative methods for determining the number of jobs held by qualified employees in place in the taxable year upon a finding by the Tax Commissioner that an alternative method is appropriate for ascertaining an accurate and realistic determination of jobs held by qualified employees in the taxable year. For purposes of prescribing alternative methods, the Tax Commissioner may require the deduction or inclusion of jobs in place with contract service providers that provide or at any time provided any service to any eligible taxpayer or to any member of the affiliated group related to any eligible taxpayer or to any one or more entities related to the eligible taxpayer: Provided, That deduction, or inclusion of those jobs shall only pertain to jobs held by employees of the contract service provider that are attributable or that were formerly attributable to the service provided by the contract service provider to the taxpayer. The Tax Commissioner may require any deconsolidation of any filing entity, or may require an alternative method based on separate accounting, unitary combination, combination of the affiliated group or combination of the taxpayer and one or more entities related to the taxpayer, or any other method determined by the Tax Commissioner to be appropriate for ascertaining an accurate and realistic determination of jobs held by qualified employees in the taxable year.

§11-13L-7. Availability of credit to successors.

(a) (1) Where there has been a transfer or sale of the business assets of an eligible taxpayer to a successor taxpayer which continues to operate the business in this state, and remains subject to the tax prescribed under section two-e, article thirteen of this chapter, the successor taxpayer is entitled to the credit allowed under this article: Provided, That the successor taxpayer otherwise remains in compliance with the requirements of this article for entitlement to the credit.

(2) For any taxable year during which a transfer, or sale of the business assets of an eligible taxpayer to a successor taxpayer under this section occurs, or a merger allowed under this section occurs, the credit allowed under this article shall be apportioned between the predecessor eligible taxpayer and the successor taxpayer based on the number of days during the taxable year that each taxpayer acted as the legal employer of qualified employees upon which the credit allowed under this article is based and the number of days during the taxable year that each taxpayer owned the business assets transferred.

(b) Stock purchases. -- Where a corporation which is an eligible taxpayer entitled to the credit allowed under this article is purchased through a stock purchase by a new owner and remains a legal entity so as to retain its corporate identity, the entitlement of that corporation to the credit allowed under this article will not be affected by the ownership change.

(c) Mergers. --

(1) Where a corporation or other entity which is an eligible taxpayer entitled to the credit allowed under this article is merged with another corporation or entity, the surviving corporation or entity shall be entitled to the credit to which the predecessor eligible taxpayer was originally entitled only if the surviving corporation or entity otherwise complies with the provisions of this article.

(2) The amount of credit available in any taxable year during which a merger occurs shall be apportioned between the predecessor eligible taxpayer and the successor eligible taxpayer based on the number of days during the taxable year that each taxpayer acted as the legal employer of qualified employees upon which the credit allowed under this article is based and the number of days during the tax year that each owned the transferred business assets.

(d) No provision of this section or of this article shall be construed to allow sales or other transfers of the tax credit allowed under this article. The credit allowed under this article can be transferred only in circumstances where there is a valid successorship as described under this section.

§11-13L-8. Credit recapture; interest; penalties; additions to tax; statute of limitations.

(a) If it appears upon audit or otherwise that any person or entity has taken the credit against tax allowed under this article and was not entitled to take the credit, then the credit improperly taken under this article shall be recaptured. Amended returns shall be filed for any tax year for which the credit was improperly taken. Any additional taxes due under this chapter shall be remitted with the amended return or returns filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter and a ten percent penalty and such other penalties and additions to tax as may be applicable pursuant to the provisions of article ten of this chapter.

(b) Recapture for jobs loss. --

(1) In any tax year when the number of qualified employees employed by the taxpayer, as determined under section six of this article, is less than sixty percent of the number of qualified employees employed by the taxpayer on January 1, 1996, as adjusted, in addition to the loss of credit allowed under this article for the tax year, credit recapture shall apply, and the tax payer shall return to the state an amount of tax determined by subtracting the number of qualified employees for such tax year from sixty percent of the number of qualified employees employed by the taxpayer as of January 1, one 1996, as adjusted, and multiplying the difference by $1,000. An amended return shall be filed for the prior tax year for which credit recapture is required. Any additional taxes due under this chapter shall be remitted with the amended return filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty and such other penalties and additions to tax as may be applicable pursuant to the provisions of article ten of this chapter.

(2) Notwithstanding the provisions of article ten of this chapter, penalties and additions to tax imposed under article ten of this chapter and the ten percent penalty imposed under this section may be waived at the discretion of the Tax Commissioner. However, interest is not subject to waiver.

(c) Notwithstanding the provisions of article ten of this chapter, the statute of limitations for the issuance of an assessment of tax by the Tax Commissioner shall be five years from the date of filing of any tax return on which this credit was taken or five years from the date of payment of any tax liability calculated pursuant to the assertion of the credit allowed under this article, whichever is later.

§11-13L-9. Effective date.

This article shall be effective for tax years beginning on or after October 1, 1996.

§11-13M-1. Legislative purpose.

The Legislature finds that production of consumer-ready wood products is very important to the economy of this state and that a sound economy is in the public interest and promotes the general welfare of the people of this state. In order to encourage capital investment in this state, through the manufacture of consumer-ready wood products after June 30, 1997, thereby increasing employment and economic development, there is hereby provide to eligible taxpayers a credit for each new job filled by a full-time hourly employee who works in a new consumer-ready wood product manufacturing facility, or in a new consumer-ready wood product line of an existing manufacturing facility, that begins operating in this state after June 30, 1997.

§11-13M-2. Definitions.

(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined.

(1) "Affiliate" means and includes all persons, as defined in this section, which are affiliates of each other when either directly or indirectly:

(A) One person controls or has the power to control the other, or

(B) A third party or third parties control or have the power to control two persons, the two thus being affiliates. In determining whether concerns are independently owned and operated and whether or not an affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

(2) "Commissioner" or "Tax Commissioner" means the Tax Commissioner of the State of West Virginia, or the Tax Commissioner's delegate.

(3) "Consumer-ready wood products" means value-added wood products that are ready for sale to consumers at the end of the manufacturing process. Consumer-ready wood includes any value-added wood product that does not require further manufacturing before it may ordinarily be used or consumed by the purchaser of the product, except that consumer-ready wood product does not include any product that is not manufactured primarily from wood, any product that is not commercially marketed as a wood product for sale primarily to consumers of the product, or paper or paper products.

(4) "Corporation" includes any corporation, a joint-stock company and any association or other organization which is classified as a corporation under federal income tax law.

(5) "Delegate", when used in reference to the Tax Commissioner, means any officer or employee of the Tax Division of the Department of Tax and Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

(6) "Eligible taxpayer" means a person who after June 30, 1997, begins manufacturing a consumer-ready wood product at a new manufacturing facility located in this state, or begins manufacturing a new consumer-ready wood product line at an existing manufacturing facility located in this state, which results in the creation of new jobs filled by full-time employees.

(7) "Employer" means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person, except that if the person for whom the individual performs or performed the service does not have control of the payment of wages for such services, the term "employer" means the person having control of the payment of such wages.

(8) "Existing manufacturing facility" means a building which at anytime during the twelve months preceding the month in which manufacture of a consumer-ready wood product begins was used by the taxpayer, or by a related person, to manufacture tangible personal property.

(9) "Full-time employee" means a permanent hourly employee of an eligible taxpayer, who is a West Virginia domiciled resident, and works in a new consumer-ready wood product manufacturing facility in this state, or in a new consumer-ready wood product line of an existing manufacturing facility in this state, more than eighteen hundred hours during the entire twelve-month period ending on the last day of the taxable year of the eligible employer, whether these hours are hours worked at the manufacturing facility, or include hours of employer paid vacation leave or other employer paid leave. Full-time employee does not include an employee who is a part-time, seasonal or temporary employee.

(10) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, of the United States.

(11) "Manufacturing facility" means any facility which is used in the manufacturing of tangible personal property (including processing resulting in a change in the condition of such property).

(12) "New consumer-ready wood product line" means the manufacture of a consumer-ready wood product in an existing manufacturing facility in this state that first begins manufacturing the new consumer-ready wood product line after June 30, 1997.

(13) "New consumer-ready wood product manufacturing facility" means a building that is primarily used by the eligible taxpayer to manufacture a consumer-ready wood product that is first placed in service and used for that purpose by the eligible taxpayer after June 30, 1997. If the facility was used by the taxpayer, or by a related person, to manufacture tangible personal property at any time during the twelve months preceding the month in which the facility is first used by the taxpayer to manufacture a consumer-ready wood product, the building is not a new consumer-ready wood product manufacturing facility.

(14) "New job" means a job at a new consumer-ready wood product manufacturing facility located in this state, or at a new consumer-ready wood product line at an existing manufacturing facility located in this state, which did not exist in this state with any employer as of the first day of the second calendar month preceding the calendar month in which the new consumer-ready wood product manufacturing facility begins to manufacture consumer-ready wood products, or in which the new consumer-ready wood product line begins to manufacture consumer-ready wood products in an existing manufacturing facility located in this state, that is filled by a full-time employee of the eligible taxpayer.

(15) "Partnership" means and includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on, which is classified as a partnership for federal income tax purposes for the taxable year.

(16) "Partner" includes a member in a syndicate, group, pool, joint venture or organization classified as a partnership for federal income tax purposes for the taxable year.

(17) "Part-time employee" means any employee who normally works twenty hours or less per week.

(18) "Seasonal employee" means an employee who normally works on a full-time basis less than five months in a year.

(19) "Temporary employee" means an employee performing services under a contractual arrangement with the employer of two years or less duration.

(20) "Person" means and includes an individual, a trust, estate, partnership, association, company or corporation.

(21) "Related entity", "related person", "entity related to" or "person related to" means:

(A) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer;

(B) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer;

(C) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer.

For purposes of this subdivision (21), "control," with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation which entitles its owner to vote. "Control," with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the Internal Revenue Code: Provided, That paragraph (3) of section 267(c) of the Internal Revenue Code shall not apply.

(22) "Tax year" or "taxable year," means the tax year of the taxpayer for federal income tax purposes.

(23) "Taxpayer" means any person subject to the tax imposed by articles twenty-one, twenty-three or twenty-four of this chapter.

§11-13M-3. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit against the taxes imposed in articles twenty-one, twenty-three and twenty-four of this chapter. The amount of this credit shall be determined and applied as provided in this article.

§11-13M-4. Amount of credit allowed; expiration of the credit.

(a) Credit allowable. -- The amount of annual credit allowable under this article to an eligible taxpayer shall be $250 for each new job at a new consumer-ready wood product manufacturing facility located in this state, or at a new consumer-ready wood product line of an existing manufacturing facility located in this state, that is filled by a full-time employee of the eligible taxpayer during the taxable year, subject to the following:

(1) When the new consumer-ready wood product manufacturing facility, or the new wood product line of an existing consumer-ready wood product manufacturing facility, is in operation for less than twelve months of the taxable year in which it is placed in service, the credit allowed by subsection (a) of this section shall be prorated by the ratio that the number of months in the taxpayer's taxable year during which the new consumer-ready wood products facility, or the new products line of an existing consumer-ready wood product manufacturing facility, was in service bears to twelve.

(2) When the eligible taxpayer stops manufacturing consumer-ready wood products at the new consumer-ready wood product manufacturing facility, or at the new wood product line of an existing consumer-ready wood product manufacturing facility, during the taxable year, the credit allowed by subsection (a) of this section shall be prorated by the ratio that the number of months in the taxpayer's taxable year during which the new consumer-ready wood products facility, or the new products line of an existing consumer-ready wood product manufacturing facility, was in operation manufacturing consumer-ready wood product bears to twelve.

(3) When determining the number of full-time employees who fill new jobs at the new consumer-ready wood product manufacturing facility located in this state, or who fill new jobs at a new consumer-ready wood product line of an existing manufacturing facility located in this state, the eligible taxpayer shall not include any position occupied by any employee of the eligible taxpayer, or of a related person, which existed in this state as of the first day of the second calendar month preceding the calendar month in which the new consumer-ready wood product manufacturing facility, or a new consumer-ready wood product line at an existing consumer-ready wood products manufacturing facility first becomes operational, whether such positions are filled by permanent, seasonal, temporary or part-time employees.

(4) The amount of credit allowable each taxable year shall be calculated annually based upon the number of new jobs filled by full-time employees during the taxable year.

(b) Expiration of credit. -- This credit shall expire on July 1, 2002. When July 1, 2002 falls during the taxable year of the eligible taxpayer, the amount of credit allowable for that taxable year shall be limited to that portion of the amount of credit that would have been allowable had the credit not expired multiplied by the ratio the number of months during taxpayers taxable year ending before July 1, 2002, bears to twelve.

§11-13M-5. Application of annual credit allowance.

(a) Application of credit against business franchise tax. -- The amount of credit allowed under section four of this article shall first be applied against the eligible taxpayer's liability for the tax imposed by article twenty-three of this chapter that is attributable to a new consumer-ready wood product manufacturing facility located in this state and to a new consumer-ready wood product production line at an existing manufacturing facility located in this state.

(b) Application of remaining credit against income tax. -- After application of the allowable credit against the tax imposed by article twenty-three of this chapter, as provided in subsection (a) of this section, any remaining credit may be applied against the taxes imposed by article twenty-one or twenty-four of this chapter to the extent those taxes are attributable to a new consumer-ready wood product manufacturing facility located in this state and to a new consumer-ready wood product production line at an existing manufacturing facility located in this state: Provided, That no credit shall be allowed against employer withholding taxes due under article twenty-one of this chapter.

(c) Excess credit forfeited. -- If after application of subsections (a) and (b) of this section, any credit remains for the taxable year, the amount remaining and not used is forfeited. Unused credit may not be carried back to any prior taxable year and shall not carry forward to any subsequent taxable year.

(d) Application of this credit when other credits apply. -- The credit allowed under this article shall be applied after application of all other applicable tax credits allowed for the taxable year against the taxes imposed by article twenty-one, twenty-three or twenty-four of this chapter.

(e) Completion of annual schedule to assert credit. -- To assert this credit against tax, the eligible taxpayer shall prepare and file with the annual tax return filed under article twenty-one, twenty-three or twenty-four of this chapter, an annual schedule showing the amount of tax paid for the taxable year, and the amount of credit allowed under this article. This annual schedule shall set forth the information and be in the form prescribed by the Tax Commissioner.

(f) Payments of estimated tax. -- A taxpayer may consider the amount of credit allowed under this article when determining the taxpayer's liability under articles twenty-one, twenty-three and twenty-four of this chapter for periodic payments of estimated tax for the taxable year, in accordance with the procedures and requirements prescribed by the Tax Commissioner. The annual total tax liability and total tax credit allowed under this article are subject to adjustment and reconciliation pursuant to the filing of the annual schedule required by subsection (e) of this section.

§11-13M-6. Proration of credit among partners, members of limited liability companies, or shareholders in small business corporations.

The amount of credit allowed under this article for the taxable year to a partnership or limited liability company classified as a partnership for the taxable year, or to an electing small business corporation, that remains after application the credit against the tax imposed by article twenty-three of this chapter as provided in subsection (a), section five of this article shall be allocated to the individual partners, members or shareholders, as the case may be, in proportion to their ownership interest in the partnership, limited liability company or electing small business corporation. The amount of credit allocated to the individual partners, members or shareholders, as the case may be, may be applied against the taxes imposed by articles twenty-one and twenty-four of this chapter in accordance with the rule set forth in subsection (b), section five of this article.

§11-13M-7. Annual computation of the number of new jobs held by full-time employees.

(a) The eligible taxpayer shall annually determine the number of new jobs held by full-time permanent employees of the eligible taxpayer in the taxable year by calculating the average number of full-time employees holding jobs for each month of the taxable year by averaging the beginning and ending monthly employment of full-time employees, then totaling the monthly averages and dividing that total by twelve.

(b) The eligible taxpayer shall also annually determine the number of new jobs filled during the taxable year by full-time employees of the eligible taxpayer employed at a new consumer-ready wood product manufacturing facility, or at a new consumer-ready wood product line at an existing manufacturing facility, located in this state that is owned or operated by the eligible taxpayer, by calculating the average number of new jobs held by full-time employees for each month of the taxable year by averaging the beginning and ending monthly employment of full-time employees holding new jobs, then totaling the monthly averages and dividing that total by twelve.

(c) Preexisting jobs carried over from a corporation or other entity merged with the taxpayer, and not reflective of a true increase in the number of new jobs in West Virginia, or preexisting jobs formerly in place with a contract service provider which are taken over or supplanted by the internal operations of the taxpayer, or any other increase in the count of jobs in place with a taxpayer which is not reflective of new jobs, as defined in section two of this article, shall not count as new jobs for purposes of the credit allowed under this article.

(d) The Tax Commissioner may prescribe by rule alternative methods for determining the number of jobs held by full-time permanent employees in the taxable year upon a finding by the Tax Commissioner that an alternative method is appropriate for ascertaining an accurate and realistic determination of new jobs held by full-time employees in the taxable year. For purposes of prescribing alternative methods, the Tax Commissioner may require the deduction or inclusion of jobs in place with contract service providers that provide or at any time provided any service to any eligible taxpayer or to any member of the affiliated group related to any eligible taxpayer or to any one or more entities related to the eligible taxpayer: Provided, That deduction, or inclusion of those jobs shall only pertain to jobs held by employees of the contract service provider that are attributable or that were formerly attributable to the service provided by the contract service provider to the taxpayer. The Tax Commissioner may require any deconsolidation of any filing entity, or may require an alternative method based on separate accounting, unitary combination, combination of the affiliated group or combination of the taxpayer and one or more entities related to the taxpayer, or any other method determined by the Tax Commissioner to be appropriate for ascertaining an accurate and realistic determination of new jobs held by full-time employees in the taxable year.

§11-13M-8. Availability of credit to successors.

(a) Transfer or sale. -- When there is a transfer or sale of the business assets of an eligible taxpayer to a successor taxpayer which continues to operate the new consumer-ready wood product manufacturing facility located in this state, or the new consumer-ready wood product line of an existing manufacturing facility located in this state, the successor taxpayer is entitled to the credit allowed under this article: Provided, That the successor taxpayer otherwise remains in compliance with the requirements of this article for entitlement to the credit.

(b) Allocation of credit between eligible taxpayer and successor eligible taxpayer. -- For any taxable year during which a transfer, or sale of the business assets of an eligible taxpayer to a successor taxpayer under this section occurs, or a merger allowed under this section occurs, the credit allowed under this article shall be apportioned between the predecessor eligible taxpayer and the successor taxpayer based on the number of days during the taxable year that each taxpayer acted as the legal employer of individuals filling new jobs for which the credit allowed under this article is based and the number of days during the taxable year that each taxpayer owned the new consumer-ready wood product manufacturing facility located in this state, or the new consumer-ready wood product line of an existing manufacturing facility located in this state.

(c) Stock purchases. -- When a corporation which is an eligible taxpayer entitled to the credit allowed under this article is purchased through a stock purchase by a new owner, and the corporation remains a legal entity so as to retain its corporate identity, the entitlement of that corporation to the credit allowed under this article will not be affected by the ownership change.

(d) Mergers. --

(1) When a corporation or other entity which is an eligible taxpayer entitled to the credit allowed under this article is merged with another corporation, or entity, the surviving corporation, or entity, shall be entitled to the credit to which the predecessor eligible taxpayer was originally entitled only if the surviving corporation, or entity, otherwise complies with the provisions of this article.

(2) The amount of credit available in any taxable year during which a merger occurs shall be apportioned between the predecessor eligible taxpayer and the successor eligible taxpayer based on the number of days during the taxable year that each taxpayer acted as the legal employer of employees holding the new jobs upon which the credit allowed under this article is based and the number of days during the taxable year that each owned the transferred business assets: Provided, That when the taxable year of the predecessor eligible taxpayer and the taxable year of the successor eligible taxpayer are different, the apportionment shall be made in accordance with legislative rules prescribed by the Tax Commissioner.

(e) No provision of this section or of this article shall be construed to allow sales or other transfers of the tax credit allowed under this article. The credit allowed under this article may be transferred only in circumstances where there is a valid successorship as described under this section.

§11-13M-9. Credit recapture; interest; penalties; additions to tax; statute of limitations.

(a) If it appears upon audit or otherwise that any person has improperly claimed the credit allowed by this article, the amount improperly claimed and which the person was not entitled to take shall be recaptured. Amended returns shall be filed for any taxable year for which the credit was improperly taken. Any additional taxes due under this chapter shall be remitted with the amended return or returns filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty plus such other penalties and additions to tax as may be applicable under the provisions of article ten of this chapter.

(b) Recapture for jobs lost. --

(1) In any tax year the number of individuals employed in full-time positions by the eligible taxpayer decreases by more than ten percent, credit recapture shall apply, and the taxpayer shall return to the state an amount of tax determined by multiplying $500 by the number of full-time jobs lost which exceed ten percent. An amended return shall be filed for the tax year for which credit recapture is required. Any additional taxes due under this chapter shall be remitted with the amended return filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty plus such other penalties and additions to tax as may be applicable under the provisions of article ten of this chapter.

(2) Notwithstanding the provisions of article ten of this chapter, penalties and additions to tax imposed under article ten of this chapter and the ten percent penalty imposed under this section may be waived, in whole or in part, at the discretion of the Tax Commissioner. However, interest may not be waive.

(c) Notwithstanding the provisions of article ten of this chapter, the time within which a notice of assessment may be issued by the Tax Commissioner to recover recapture tax shall be five years from the date of filing of any tax return on which this credit was taken or five years from the date of payment of any tax liability calculated pursuant to the assertion of the credit allowed under this article, whichever is later.

§11-13M-10. Administrative rules.

The tax commission may prescribe such rules as may be necessary to carry out the purposes of this article, including, but not limited to, rules relating to applicability of credit, method of claiming of credit, credit recapture, documentation necessary to claim credit and rules preventing abuse of this article by related persons or by change in the form of doing business. All rules promulgated under this article shall be promulgated in accordance with article three, chapter twenty-nine-a of this code.

§11-13M-11. Construction of article.

The provisions of this article shall be reasonably construed. The burden of proof is on the person claiming the credit allowed by this article to establish by clear and convincing evidence that the person is entitled to the amount of credit asserted for the taxable year.

§11-13M-12. Effective date.

This article shall be effective for taxable years beginning on or after July 1, 1997.

§11-13N-1. Legislative purpose.

The Legislature finds that production of value-added steel products is very important to the economy of this state and that a sound economy is in the public interest and promotes the general welfare of the people of this state. In order to encourage capital investment in this state, through the manufacture of value-added steel products after June 30, 1998, thereby increasing employment and economic development, there is hereby provided to eligible taxpayers a credit for each new job filled by a full-time hourly employee who works in a new value-added steel product manufacturing facility, or in a new value-added steel product line of an existing manufacturing facility, that begins operating in this state after June 30, 1998.

§11-13N-2. Definitions.

(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined. --

(1) "Affiliate" means and includes all persons, as defined in this section, which are affiliates of each other when either directly or indirectly:

(A) One person controls or has the power to control the other; or

(B) A third party or third parties control or have the power to control two persons, the two thus being affiliates. In determining whether concerns are independently owned and operated and whether or not an affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

(2) "Commissioner" or "Tax Commissioner" means the Tax Commissioner of the State of West Virginia, or the Tax Commissioner's designee.

(3) "Corporation" includes any corporation, a joint-stock company and any association or other organization which is classified as a corporation under federal income tax law.

(4) "Designee," when used in reference to the Tax Commissioner, means any officer or employee of the Tax Division of the Department of Tax and Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

(5) "Eligible taxpayer" means a person who after June 30, 1998, begins manufacturing a value-added steel product at a new manufacturing facility located in this state, or begins manufacturing a new value-added steel product line at an existing manufacturing facility located in this state, which results in the creation of new jobs filled by full-time employees.

(6) "Employer" means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person, except that if the person for whom the individual performs or performed the service does not have control of the payment of wages for such services, the term "employer" means the person having control of the payment of such wages.

(7) "Existing manufacturing facility" means a building which, at anytime during the twelve months preceding the month in which manufacture of a value-added steel product begins, was used by the taxpayer, or by a related person, to manufacture tangible personal property.

(8) "Full-time employee" means a permanent hourly employee of an eligible taxpayer, who is a West Virginia domiciled resident, and works in a new value-added steel product manufacturing facility in this state, or in a new value-added steel product line of an existing manufacturing facility in this state, more than eighteen hundred hours during the entire twelve-month period ending on the last day of the taxable year of the eligible employer, whether these hours are hours worked at the manufacturing facility, or include hours of employer paid vacation leave or other employer paid leave. Full-time employee does not include an employee who is a part-time, seasonal or temporary employee.

(9) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, of the United States.

(10) "Manufacturing facility" means any facility which is used in the manufacturing of tangible personal property (including processing resulting in a change in the condition of such property).

(11) "New value-added steel product line" means the manufacture of a value-added steel product in an existing manufacturing facility in this state that first begins manufacturing the new value-added steel product line after June 30, 1998.

(12) "New value-added steel product manufacturing facility" means a building that is primarily used by the eligible taxpayer to manufacture a value-added steel product that is first placed in service and used for that purpose by the eligible taxpayer after June 30, 1998. If the facility was used by the taxpayer, or by a related person, to manufacture tangible personal property at any time during the twelve months preceding the month in which the facility is first used by the taxpayer to manufacture a value-added steel product, the building is not a new value-added steel product manufacturing facility.

(13) "New job" means a job at a new value-added steel product manufacturing facility located in this state, or at a new value-added steel product line at an existing manufacturing facility located in this state, which did not exist in this state with any employer as of the first day of the second calendar month preceding the calendar month in which the new value-added steel product manufacturing facility begins to manufacture value-added steel products, or in which the new value-added steel product line begins to manufacture value-added steel products in an existing manufacturing facility located in this state, that is filled by a full-time employee of the eligible taxpayer.

(14) "Partnership" means and includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, which is classified as a partnership for federal income tax purposes for the taxable year.

(15) "Partner" includes a member in a syndicate, group, pool, joint venture or organization classified as a partnership for federal income tax purposes for the taxable year.

(16) "Part-time employee" means any employee who normally works twenty hours or less per week.

(17) "Seasonal employee" means an employee who normally works on a full-time basis less than five months in a year.

(18) "Temporary employee" means an employee performing services under a contractual arrangement with the employer of two years or less duration.

(19) "Person" means and includes an individual, a trust, estate, partnership, association, company or corporation.

(20) "Related entity," "related person," "entity related to" or "person related to" means:

(A) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer;

(B) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer;

(C) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer.

For purposes of this subdivision (20), "control," with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation which entitles its owner to vote. "Control," with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the Internal Revenue Code: Provided, That paragraph (3) of section 267(c) of the Internal Revenue Code shall not apply.

(21) "Tax year" or "taxable year," means the tax year of the taxpayer for federal income tax purposes.

(22) "Taxpayer" means any person subject to the tax imposed by article twenty-one, twenty-three or twenty-four of this chapter.

(23) "Value-added steel product" means any product that adds to, increases or enhances the value of any raw, base or unimproved steel or wrought nickel-based product through processes including, but not limited to, anodization, coating, fabrication, machining, molding, melting, stamping and any other processing which adds value.

§11-13N-3. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit against the taxes imposed in articles twenty-one, twenty-three and twenty-four of this chapter. The amount of this credit shall be determined and applied as provided in this article.

§11-13N-4. Amount of credit allowed; expiration of the credit.

(a) Credit allowable. -- The amount of annual credit allowable under this article to an eligible taxpayer is $250 for each new job at a new value-added steel product manufacturing facility located in this state, or at a new value-added steel product line of an existing manufacturing facility located in this state, that is filled by a full-time employee of the eligible taxpayer during the taxable year, subject to the following:

(1) When the new value-added steel product manufacturing facility, or the new steel product line of an existing value-added steel product manufacturing facility, is in operation for less than twelve months of the taxable year in which it is placed in service, the credit allowed by subsection (a) of this section shall be prorated by the ratio that the number of months in the taxpayer's taxable year during which the new value-added steel products facility, or the new products line of an existing value-added steel product manufacturing facility, was in service bears to twelve.

(2) When the eligible taxpayer stops manufacturing value-added steel products at the new value-added steel product manufacturing facility, or at the new steel product line of an existing value-added steel product manufacturing facility, during the taxable year, the credit allowed by subsection (a) of this section shall be prorated by the ratio that the number of months in the taxpayer's taxable year during which the new value-added steel products facility, or the new products line of an existing value-added steel product manufacturing facility, was in operation manufacturing value-added steel product bears to twelve.

(3) When determining the number of full-time employees who fill new jobs at the new value-added steel product manufacturing facility located in this state, or who fill new jobs at a new value-added steel product line of an existing manufacturing facility located in this state, the eligible taxpayer may not include any position occupied by any employee of the eligible taxpayer, or of a related person, which existed in this state as of the first day of the second calendar month preceding the calendar month in which the new value-added steel product manufacturing facility, or a new value-added steel product line at an existing value-added steel products manufacturing facility first becomes operational, whether the positions are filled by permanent, seasonal, temporary or part-time employees.

(4) The amount of credit allowable each taxable year is calculated annually based upon the number of new jobs filled by full-time employees during the taxable year: Provided, That the credit provided for in this article may only be taken one time for each new job created, and once claimed in a tax year for a new job the credit may not be claimed in a subsequent year for that position.

(b) Expiration of credit. -- This credit expires on July 1, 2002. When July 1, 2002 two falls during the taxable year of the eligible taxpayer, the amount of credit allowable for that taxable year shall be limited to that portion of the amount of credit that would have been allowable had the credit not expired multiplied by the ratio of the number of months during taxpayers taxable year ending before July 1, 2002, bears to twelve.

§11-13N-5. Application of annual credit allowance.

(a) Application of credit against business franchise tax. -- The amount of credit allowed under section four of this article shall first be applied against the eligible taxpayer's liability for the tax imposed by article twenty-three of this chapter that is attributable to a new value-added steel product manufacturing facility located in this state and to a new value-added steel product production line at an existing manufacturing facility located in this state.

(b) Application of remaining credit against income tax. -- After application of the allowable credit against the tax imposed by article twenty-three of this chapter, as provided in subsection (a) of this section, any remaining credit may be applied against the taxes imposed by article twenty-one or twenty-four of this chapter to the extent those taxes are attributable to a new value-added steel product manufacturing facility located in this state and to a new value-added steel product production line at an existing manufacturing facility located in this state: Provided, That no credit shall be allowed against employer withholding taxes due under article twenty-one of this chapter.

(c) Excess credit carried over. -- If after application of subsections (a) and (b) of this section, any credit remains for the taxable year, the amount remaining may be carried over and applied as a credit against the tax liability of the taxpayer in accordance with this section to each of the next five taxable years unless sooner used. Unused credit may not be carried back to any prior taxable year.

(d) Application of this credit when other credits apply. -- The credit allowed under this article shall be applied after application of all other applicable tax credits allowed for the taxable year against the taxes imposed by article twenty-one, twenty-three or twenty-four of this chapter.

(e) Completion of annual schedule to assert credit. -- To assert this credit against tax, the eligible taxpayer shall prepare and file with the annual tax return filed under article twenty-one, twenty-three or twenty-four of this chapter, an annual schedule showing the amount of tax paid for the taxable year, and the amount of credit allowed under this article. This annual schedule shall set forth the information and be in the form prescribed by the Tax Commissioner.

(f) Payments of estimated tax. -- A taxpayer may consider the amount of credit allowed under this article when determining the taxpayer's liability under articles twenty-one, twenty-three and twenty-four of this chapter for periodic payments of estimated tax for the taxable year, in accordance with the procedures and requirements prescribed by the Tax Commissioner. The annual total tax liability and total tax credit allowed under this article are subject to adjustment and reconciliation pursuant to the filing of the annual schedule required by subsection (e) of this section.

§11-13N-6. Proration of credit among partners, members of limited liability companies, or shareholders in small business corporations.

The amount of credit allowed under this article for the taxable year to a partnership or limited liability company classified as a partnership for the taxable year, or to an electing small business corporation, that remains after application the credit against the tax imposed by article twenty-three of this chapter as provided in subsection (a), section five of this article shall be allocated to the individual partners, members or shareholders, as the case may be, in proportion to their ownership interest in the partnership, limited liability company or electing small business corporation. The amount of credit allocated to the individual partners, members or shareholders, as the case may be, may be applied against the taxes imposed by articles twenty-one and twenty-four of this chapter in accordance with the rule set forth in subsection (b), section five of this article.

§11-13N-7. Annual computation of the number of new jobs held by full-time employees.

(a) The eligible taxpayer shall annually determine the number of new jobs held by full-time permanent employees of the eligible taxpayer in the taxable year by calculating the average number of full-time employees holding jobs for each month of the taxable year by averaging the beginning and ending monthly employment of full-time employees, then totaling the monthly averages and dividing that total by twelve.

(b) The eligible taxpayer shall also annually determine the number of new jobs filled during the taxable year by full-time employees of the eligible taxpayer employed at a new value-added product manufacturing facility, or at a new value-added steel product line at an existing manufacturing facility, located in this state that is owned or operated by the eligible taxpayer, by calculating the average number of new jobs held by full-time employees for each month of the taxable year by averaging the beginning and ending monthly employment of full-time employees holding new jobs, then totaling the monthly averages and dividing that total by twelve.

(c) Preexisting jobs carried over from a corporation or other entity merged with the taxpayer, and not reflective of a true increase in the number of new jobs in West Virginia, or preexisting jobs formerly in place with a contract service provider which are taken over or supplanted by the internal operations of the taxpayer, or any other increase in the count of jobs in place with a taxpayer which is not reflective of new jobs, as defined in section two of this article, shall not count as new jobs for purposes of the credit allowed under this article.

(d) The Tax Commissioner may prescribe by rule alternative methods for determining the number of jobs held by full-time permanent employees in the taxable year upon a finding by the Tax Commissioner that an alternative method is appropriate for ascertaining an accurate and realistic determination of new jobs held by full-time employees in the taxable year. For purposes of prescribing alternative methods, the Tax Commissioner may require the deduction or inclusion of jobs in place with contract service providers that provide or at any time provided any service to any eligible taxpayer or to any member of the affiliated group related to any eligible taxpayer or to any one or more entities related to the eligible taxpayer: Provided, That deduction, or inclusion of those jobs shall only pertain to jobs held by employees of the contract service provider that are attributable or that were formerly attributable to the service provided by the contract service provider to the taxpayer. The Tax Commissioner may require any deconsolidation of any filing entity, or may require an alternative method based on separate accounting, unitary combination, combination of the affiliated group or combination of the taxpayer and one or more entities related to the taxpayer, or any other method determined by the Tax Commissioner to be appropriate for ascertaining an accurate and realistic determination of new jobs held by full-time employees in the taxable year.

§11-13N-8. Availability of credit to successors.

(a) Transfer or sale. -- When there is a transfer or sale of the business assets of an eligible taxpayer to a successor taxpayer which continues to operate the new value-added steel product manufacturing facility located in this state, or the new value-added steel product line of an existing manufacturing facility located in this state, the successor taxpayer is entitled to the credit allowed under this article: Provided, That the successor taxpayer otherwise remains in compliance with the requirements of this article for entitlement to the credit.

(b) Allocation of credit between eligible taxpayer and successor eligible taxpayer. -- For any taxable year during which a transfer, or sale of the business assets of an eligible taxpayer to a successor taxpayer under this section occurs, or a merger allowed under this section occurs, the credit allowed under this article shall be apportioned between the predecessor eligible taxpayer and the successor taxpayer based on the number of days during the taxable year that each taxpayer acted as the legal employer of individuals filling new jobs for which the credit allowed under this article is based and the number of days during the taxable year that each taxpayer owned the new value-added steel product manufacturing facility located in this state, or the new value-added steel product line of an existing manufacturing facility located in this state.

(c) Stock purchases. -- When a corporation which is an eligible taxpayer entitled to the credit allowed under this article is purchased through a stock purchase by a new owner, and the corporation remains a legal entity so as to retain its corporate identity, the entitlement of that corporation to the credit allowed under this article will not be affected by the ownership change.

(d) Mergers. --

(1) When a corporation or other entity which is an eligible taxpayer entitled to the credit allowed under this article is merged with another corporation, or entity, the surviving corporation, or entity, shall be entitled to the credit to which the predecessor eligible taxpayer was originally entitled only if the surviving corporation, or entity, otherwise complies with the provisions of this article.

(2) The amount of credit available in any taxable year during which a merger occurs shall be apportioned between the predecessor eligible taxpayer and the successor eligible taxpayer based on the number of days during the taxable year that each taxpayer acted as the legal employer of employees holding the new jobs upon which the credit allowed under this article is based and the number of days during the taxable year that each owned the transferred business assets: Provided, That when the taxable year of the predecessor eligible taxpayer and the taxable year of the successor eligible taxpayer are different, the apportionment shall be made in accordance with legislative rules prescribed by the Tax Commissioner.

(e) No provision of this section or of this article shall be construed to allow sales or other transfers of the tax credit allowed under this article. The credit allowed under this article may be transferred only in circumstances where there is a valid successorship as described under this section.

§11-13N-9. Credit recapture; interest; penalties; additions to tax; statute of limitations.

(a) If it appears upon audit or otherwise that any person has improperly claimed the credit allowed by this article, the amount improperly claimed and which the person was not entitled to take shall be recaptured. Amended returns shall be filed for any taxable year for which the credit was improperly taken. Any additional taxes due under this chapter shall be remitted with the amended return or returns filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty plus such other penalties and additions to tax as may be applicable under the provisions of article ten of this chapter.

(b) Recapture for jobs lost. --

(1) In any tax year the number of individuals employed in full-time positions by the eligible taxpayer decreases by more than ten percent, credit recapture shall apply, and the taxpayer shall return to the state an amount of tax determined by multiplying $500 by the number of full-time jobs lost which exceed ten percent. An amended return shall be filed for the tax year for which credit recapture is required. Any additional taxes due under this chapter shall be remitted with the amended return filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty plus such other penalties and additions to tax as may be applicable under the provisions of article ten of this chapter.

(2) Notwithstanding the provisions of article ten of this chapter, penalties and additions to tax imposed under article ten of this chapter and the ten percent penalty imposed under this section may be waived, in whole or in part, at the discretion of the Tax Commissioner. However, interest may not be waived.

(c) Notwithstanding the provisions of article ten of this chapter, the time within which a notice of assessment may be issued by the Tax Commissioner to recover recapture tax shall be five years from the date of filing of any tax return on which this credit was taken or five years from the date of payment of any tax liability calculated pursuant to the assertion of the credit allowed under this article, whichever is later.

§11-13N-10. Administrative rules.

The Tax Commissioner may prescribe such rules as may be necessary to carry out the purposes of this article, including, but not limited to, rules relating to applicability of credit, method of claiming of credit, credit recapture, documentation necessary to claim credit and rules preventing abuse of this article by related persons or by change in the form of doing business. All rules promulgated under this article shall be promulgated in accordance with article three, chapter twenty-nine-a of this code.

§11-13N-11. Construction of article.

The provisions of this article shall be reasonably construed. The burden of proof is on the person claiming the credit allowed by this article to establish by clear and convincing evidence that the person is entitled to the amount of credit asserted for the taxable year.

§11-13N-12. Effective date.

This article shall be effective for taxable years beginning on or after July 1, 1998.

§11-13O-1. Legislative purpose.

The Legislature finds that production of value-added products is very important to the economy of this state and that a sound economy is in the public interest and promotes the general welfare of the people of this state. In order to encourage capital investment in this state, through the manufacture of value-added aluminum and polymer products after June 30, 1998, thereby increasing employment and economic development, there is hereby provided to eligible taxpayers a credit for each new job filled by a full-time hourly employee who works in a new value-added aluminum or polymer product manufacturing facility, or in a new value-added aluminum or polymer product line of an existing manufacturing facility, that begins operating in this state after June 30, 1998.

§11-13O-2. Definitions.

(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined. --

(1) "Affiliate" means and includes all persons, as defined in this section, which are affiliates of each other when either directly or indirectly:

(A) One person controls or has the power to control the other; or

(B) A third party or third parties control or have the power to control two persons, the two thus being affiliates. In determining whether concerns are independently owned and operated and whether or not an affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

(2) "Commissioner" or "Tax Commissioner" means the Tax Commissioner of the State of West Virginia or the Tax Commissioner's delegate.

(3) "Corporation" includes any corporation, a joint-stock company and any association or other organization which is classified as a corporation under federal income tax law.

(4) "Delegate", when used in reference to the Tax Commissioner, means any officer or employee of the Tax Division of the Department of Tax and Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

(5) "Eligible taxpayer" means a person who after June 30, 1998, begins manufacturing a value-added aluminum or polymer product at a new manufacturing facility located in this state, or begins manufacturing a new value-added aluminum or polymer product line at an existing manufacturing facility located in this state, which results in the creation of new jobs filled by full-time employees.

(6) "Employer" means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person, except that if the person for whom the individual performs or performed the service does not have control of the payment of wages for such services, the term ?employer" means the person having control of the payment of such wages.

(7) "Existing manufacturing facility" means a building which at anytime during the twelve months preceding the month in which manufacture of a value-added aluminum or polymer product begins was used by the taxpayer, or by a related person, to manufacture tangible personal property.

(8) "Full-time employee" means a permanent hourly employee of an eligible taxpayer, who is a West Virginia domiciled resident, and works in a new value-added aluminum or polymer product manufacturing facility in this state, or in a new value-added aluminum or polymer product line of an existing manufacturing facility in this state, more than eighteen hundred hours during the entire twelve-month period ending on the last day of the taxable year of the eligible employer, whether these hours are hours worked at the manufacturing facility, or include hours of employer paid vacation leave or other employer paid leave. Full-time employee does not include an employee who is a part-time, seasonal or temporary employee.

(9) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, of the United States.

(10) "Manufacturing facility" means any facility which is used in the manufacturing of tangible personal property (including processing resulting in a change in the condition of such property).

(11) "New value-added aluminum or polymer product line" means the manufacture of a value-added aluminum or polymer product in an existing manufacturing facility in this state that first begins manufacturing the new value-added aluminum or polymer product line after June 30, 1998.

(12) "New value-added aluminum product manufacturing facility" means a building that is primarily used by the eligible taxpayer to manufacture a value-added aluminum product that is first placed in service and used for that purpose by the eligible taxpayer after June 30, 1998. If the facility was used by the taxpayer, or by a related person, to manufacture tangible personal property at any time during the twelve months preceding the month in which the facility is first used by the taxpayer to manufacture a value-added aluminum or polymer product, the building is not a new value-added aluminum or polymer product manufacturing facility.

(13) "New job" means a job at a new value-added aluminum or polymer product manufacturing facility located in this state, or at a new value-added aluminum or polymer product line at an existing manufacturing facility located in this state, which did not exist in this state with any employer as of the first day of the second calendar month preceding the calendar month in which the new value-added aluminum or polymer product manufacturing facility begins to manufacture value-added aluminum or polymer products, or in which the new value-added aluminum or polymer product line begins to manufacture value-added aluminum or polymer products in an existing manufacturing facility located in this state, that is filled by a full-time employee of the eligible taxpayer.

(14) "Partnership" means and includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on, which is classified as a partnership for federal income tax purposes for the taxable year.

(15) "Partner" includes a member in a syndicate, group, pool, joint venture or organization classified as a partnership for federal income tax purposes for the taxable year.

(16) "Part-time employee" means any employee who normally works twenty hours or less per week.

(17) "Seasonal employee" means an employee who normally works on a full-time basis less than five months in a year.

(18) "Temporary employee" means an employee performing services under a contractual arrangement with the employer of two years or less duration.

(19) "Person" means and includes an individual, a trust, estate, partnership, limited liability company, association, company or corporation.

(20) "Related entity", "related person", "entity related to" or "person related to" means:

(A) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer;

(B) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer;

(C) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer.

For purposes of subdivision (3) of this subsection, "control," with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation which entitles its owner to vote. "Control," with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the Internal Revenue Code: Provided, That paragraph (3) of section 267(c) of the Internal Revenue Code shall not apply.

(21) "Tax year" or "taxable year," means the tax year of the taxpayer for federal income tax purposes.

(22) "Taxpayer" means any person subject to the tax imposed by articles twenty-one, twenty-three or twenty-four of this chapter.

(23) "Value-added aluminum or polymer product" means any product that adds to, increases or enhances the value of any raw, base or unimproved aluminum or polymer product through processes including, but not limited to, anodization, coating, fabrication, machining, molding, extraction, stamping and any other processing which adds value.

§11-13O-3. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit against the taxes imposed in articles twenty-one, twenty-three and twenty-four of this chapter. The amount of this credit shall be determined and applied as provided in this article.

§11-13O-4. Amount of credit allowed; expiration of the credit.

(a) Credit allowable. -- The amount of annual credit allowable under this article to an eligible taxpayer shall be $250 for each new job at a new value-added aluminum or polymer product manufacturing facility located in this state, or at a new value-added aluminum or polymer product line of an existing manufacturing facility located in this state, that is filled by a full-time employee of the eligible taxpayer during the taxable year, subject to the following:

(1) When the new value-added aluminum or polymer product manufacturing facility, or the new aluminum or polymer product line of an existing value-added aluminum or polymer product manufacturing facility, is in operation for less than twelve months of the taxable year in which it is placed in service, the credit allowed by subsection (a) of this section shall be prorated by the ratio that the number of months in the taxpayer's taxable year during which the new value-added aluminum or polymer product facility, or the new products line of an existing value-added aluminum or polymer product manufacturing facility, was in service bears to twelve;

(2) When the eligible taxpayer stops manufacturing value-added aluminum or polymer products at the new value-added aluminum product manufacturing facility, or at the new aluminum or polymer product line of an existing value-added aluminum or polymer product manufacturing facility, during the taxable year, the credit allowed by subsection (a) of this section shall be prorated by the ratio that the number of months in the taxpayer's taxable year during which the new value-added aluminum or polymer product facility, or the new products line of an existing value-added aluminum or polymer product manufacturing facility, was in operation manufacturing value-added aluminum or polymer products bears to twelve;

(3) When determining the number of full-time employees who fill new jobs at the new value-added aluminum or polymer product manufacturing facility located in this state, or who fill new jobs at a new value-added aluminum or polymer product line of an existing manufacturing facility located in this state, the eligible taxpayer shall not include any position occupied by any employee of the eligible taxpayer, or of a related person, which existed in this state as of the first day of the second calendar month preceding the calendar month in which the new value-added aluminum or polymer product manufacturing facility, or a new value-added aluminum or polymer product line at an existing value-added aluminum or polymer products manufacturing facility first becomes operational, whether such positions are filled by permanent, seasonal, temporary or part-time employees;

(4) The amount of credit allowable each taxable year shall be calculated annually based upon the number of new jobs filled by full-time employees during the taxable year: Provided, That the credit provided for in this article may only be taken one time for each new job created, and once claimed in a tax year for a new job the credit may not be claimed in a subsequent year for that position.

(b) Expiration of credit. -- This credit shall expire on July 1, 2002. When July 1, in the year 2002 falls during the taxable year of the eligible taxpayer, the amount of credit allowable for that taxable year shall be limited to that portion of the amount of credit that would have been allowable had the credit not expired multiplied by the ratio the number of months during taxpayers taxable year ending before July 1, 2002, bears to twelve.

§11-13O-5. Application of annual credit allowance.

(a) Application of credit against business franchise tax. -- The amount of credit allowed under section four of this article shall first be applied against the eligible taxpayer's liability for the tax imposed by article twenty-three of this chapter that is attributable to a new value-added aluminum or polymer product manufacturing facility located in this state and to a new value-added aluminum or polymer product production line at an existing manufacturing facility located in this state.

(b) Application of remaining credit against income tax. -- After application of the allowable credit against the tax imposed by article twenty-three of this chapter, as provided in subsection (a) of this section, any remaining credit may be applied against the taxes imposed by article twenty-one or twenty-four of this chapter to the extent those taxes are attributable to a new value-added aluminum or polymer product manufacturing facility located in this state and to a new value-added aluminum or polymer product production line at an existing manufacturing facility located in this state: Provided, That no credit shall be allowed against employer withholding taxes due under article twenty-one of this chapter.

(c) Excess credit forfeited. -- If after application of subsections (a) and (b) of this section, any credit remains for the taxable year, the amount remaining and not used is forfeited. Unused credit may not be carried back to any prior taxable year and shall not carry forward to any subsequent taxable year.

(d) Application of this credit when other credits apply. -- The credit allowed under this article shall be applied after application of all other applicable tax credits allowed for the taxable year against the taxes imposed by article twenty-one, twenty-three or twenty-four of this chapter.

(e) Completion of annual schedule to assert credit. -- To assert this credit against tax, the eligible taxpayer shall prepare and file with the annual tax return filed under article twenty-one, twenty-three or twenty-four of this chapter, an annual schedule showing the amount of tax paid for the taxable year, and the amount of credit allowed under this article. This annual schedule shall set forth the information and be in the form prescribed by the Tax Commissioner.

(f) Payments of estimated tax. -- A taxpayer may consider the amount of credit allowed under this article when determining the taxpayer's liability under articles twenty-one, twenty-three and twenty-four of this chapter for periodic payments of estimated tax for the taxable year, in accordance with the procedures and requirements prescribed by the Tax Commissioner. The annual total tax liability and total tax credit allowed under this article are subject to adjustment and reconciliation pursuant to the filing of the annual schedule required by subsection (e) of this section.

§11-13O-6. Proration of credit among partners, members of limited liability companies, or shareholders in small business corporations.

The amount of credit allowed under this article for the taxable year to a partnership or limited liability company classified as a partnership for the taxable year, or to an electing small business corporation, that remains after application the credit against the tax imposed by article twenty-three of this chapter as provided in subsection (a), section five of this article shall be allocated to the individual partners, members or shareholders, as the case may be, in proportion to their ownership interest in the partnership, limited liability company or electing small business corporation. The amount of credit allocated to the individual partners, members or shareholders, as the case may be, may be applied against the taxes imposed by articles twenty-one and twenty-four of this chapter in accordance with the rule set forth in subsection (b), section five of this article.

§11-13O-7. Annual computation of the number of new jobs held by full-time employees.

(a) The eligible taxpayer shall annually determine the number of new jobs held by full-time permanent employees of the eligible taxpayer in the taxable year by calculating the average number of full-time employees holding jobs for each month of the taxable year by averaging the beginning and ending monthly employment of full-time employees, then totaling the monthly averages and dividing that total by twelve.

(b) The eligible taxpayer shall also annually determine the number of new jobs filled during the taxable year by full-time employees of the eligible taxpayer employed at a new value-added aluminum or polymer product manufacturing facility, or at a new value-added aluminum or polymer product line at an existing manufacturing facility, located in this state that is owned or operated by the eligible taxpayer, by calculating the average number of new jobs held by full-time employees for each month of the taxable year by averaging the beginning and ending monthly employment of full-time employees holding new jobs, then totaling the monthly averages and dividing that total by twelve.

(c) Preexisting jobs carried over from a corporation or other entity merged with the taxpayer, and not reflective of a true increase in the number of new jobs in West Virginia, or preexisting jobs formerly in place with a contract service provider which are taken over or supplanted by the internal operations of the taxpayer, or any other increase in the count of jobs in place with a taxpayer which is not reflective of new jobs, as defined in section two of this article, shall not count as new jobs for purposes of the credit allowed under this article.

(d) The Tax Commissioner may prescribe by rule alternative methods for determining the number of jobs held by full-time permanent employees in the taxable year upon a finding by the Tax Commissioner that an alternative method is appropriate for ascertaining an accurate and realistic determination of new jobs held by full-time employees in the taxable year. For purposes of prescribing alternative methods, the Tax Commissioner may require the deduction or inclusion of jobs in place with contract service providers that provide or at any time provided any service to any eligible taxpayer or to any member of the affiliated group related to any eligible taxpayer or to any one or more entities related to the eligible taxpayer: Provided, That deduction, or inclusion of those jobs shall only pertain to jobs held by employees of the contract service provider that are attributable or that were formerly attributable to the service provided by the contract service provider to the taxpayer. The Tax Commissioner may require any deconsolidation of any filing entity, or may require an alternative method based on separate accounting, unitary combination, combination of the affiliated group or combination of the taxpayer and one or more entities related to the taxpayer, or any other method determined by the Tax Commissioner to be appropriate for ascertaining an accurate and realistic determination of new jobs held by full-time employees in the taxable year.

§11-13O-8. Availability of credit to successors.

(a) Transfer or sale. -- When there is a transfer or sale of the business assets of an eligible taxpayer to a successor taxpayer which continues to operate the new value-added aluminum or polymer product manufacturing facility located in this state, or the new value-added aluminum or polymer product line of an existing manufacturing facility located in this state, the successor taxpayer is entitled to the credit allowed under this article: Provided, That the successor taxpayer otherwise remains in compliance with the requirements of this article for entitlement to the credit.

(b) Allocation of credit between eligible taxpayer and successor eligible taxpayer. -- For any taxable year during which a transfer, or sale of the business assets of an eligible taxpayer to a successor taxpayer under this section occurs, or a merger allowed under this section occurs, the credit allowed under this article shall be apportioned between the predecessor eligible taxpayer and the successor taxpayer based on the number of days during the taxable year that each taxpayer acted as the legal employer of individuals filling new jobs for which the credit allowed under this article is based and the number of days during the taxable year that each taxpayer owned the new value-added aluminum or polymer product manufacturing facility located in this state, or the new value-added aluminum or polymer product line of an existing manufacturing facility located in this state.

(c) Stock purchases. -- When a corporation which is an eligible taxpayer entitled to the credit allowed under this article is purchased through a stock purchase by a new owner, and the corporation remains a legal entity so as to retain its corporate identity, the entitlement of that corporation to the credit allowed under this article will not be affected by the ownership change.

(d) Mergers. --

(1) When a corporation or other entity which is an eligible taxpayer entitled to the credit allowed under this article is merged with another corporation or entity, the surviving corporation or entity, shall be entitled to the credit to which the predecessor eligible taxpayer was originally entitled only if the surviving corporation or entity, otherwise complies with the provisions of this article.

(2) The amount of credit available in any taxable year during which a merger occurs shall be apportioned between the predecessor eligible taxpayer and the successor eligible taxpayer based on the number of days during the taxable year that each taxpayer acted as the legal employer of employees holding the new jobs upon which the credit allowed under this article is based and the number of days during the taxable year that each owned the transferred business assets: Provided, That when the taxable year of the predecessor eligible taxpayer and the taxable year of the successor eligible taxpayer are different, the apportionment shall be made in accordance with legislative rules prescribed by the Tax Commissioner.

(e) No provision of this section or of this article shall be construed to allow sales or other transfers of the tax credit allowed under this article. The credit allowed under this article may be transferred only in circumstances where there is a valid successorship as described under this section.

§11-13O-9. Credit recapture; interest; penalties; additions to tax; statute of limitations.

(a) If it appears upon audit or otherwise that any person has improperly claimed the credit allowed by this article, the amount improperly claimed and which the person was not entitled to take shall be recaptured. Amended returns shall be filed for any taxable year for which the credit was improperly taken. Any additional taxes due under this chapter shall be remitted with the amended return or returns filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty plus such other penalties and additions to tax as may be applicable under the provisions of article ten of this chapter.

(b) Recapture for jobs lost. --

(1) In any tax year the number of individuals employed in full-time positions by the eligible taxpayer decreases by more than ten percent, credit recapture shall apply, and the taxpayer shall return to the state an amount of tax determined by multiplying $500 by the number of full-time jobs lost which exceed ten percent. An amended return shall be filed for the tax year for which credit recapture is required. Any additional taxes due under this chapter shall be remitted with the amended return filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty plus such other penalties and additions to tax as may be applicable under the provisions of article ten of this chapter.

(2) Notwithstanding the provisions of article ten of this chapter, penalties and additions to tax imposed under article ten of this chapter and the ten percent penalty imposed under this section may be waived, in whole or in part, at the discretion of the Tax Commissioner. However, interest may not be waived.

(c) Notwithstanding the provisions of article ten of this chapter, the time within which a notice of assessment may be issued by the Tax Commissioner to recover recaptured tax shall be five years from the date of filing of any tax return on which this credit was taken or five years from the date of payment of any tax liability calculated pursuant to the assertion of the credit allowed under this article, whichever is later.

§11-13O-10. Administrative rules.

The tax commission may prescribe such rules as may be necessary to carry out the purposes of this article, including, but not limited to, rules relating to applicability of credit, method of claiming credit, credit recapture, documentation necessary to claim credit and rules preventing abuse of this article by related persons or by change in the form of doing business. All rules promulgated under this article shall be promulgated in accordance with article three, chapter twenty-nine-a of this code.

§11-13O-11. Construction of article.

The provisions of this article shall be reasonably construed. The burden of proof is on the person claiming the credit allowed by this article to establish by clear and convincing evidence that the person is entitled to the amount of credit asserted for the taxable year.

§11-13O-12. Effective date.

This article shall be effective for taxable years beginning on or after July 1, 1998.

§11-13P-1. Legislative finding and purpose.

The Legislature finds that the retention of physicians practicing in this state is in the public interest and promotes the general welfare of the people of this state. The Legislature further finds that the promotion of stable and affordable medical malpractice liability insurance premium rates will induce retention of physicians practicing in this state.

In order to effectively decrease the cost of medical liability insurance premiums paid in this state on physicians' services, there is hereby provided a tax credit for certain medical liability insurance premiums paid.

§11-13P-2. Definitions.

(a) General. – When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined. –

(1) "Adjusted annual medical liability premium" means statewide average of medical liability insurance premiums by specialty and subspecialty groups directly paid by eligible taxpayers in those speciality and subspecialty groups during the taxable year to cover physicians' services performed during the year reduced by the sum of $10,000.

(2) "Eligible taxpayer" means any person subject to tax under section sixteen, article twenty-seven of this chapter or a physician who is a partner, member, shareholder or employee of an eligible taxpayer.

(3) "Person" means and includes any natural person, corporation, limited liability company, trust or partnership.

(4) "Physicians' services" means health care providers services taxable under section sixteen, article twenty-seven of this chapter performed in this state by physicians licensed by the state Board of Medicine or the state board of osteopathic medicine.

(5) "Statewide average medical liability insurance premiums" are the average of premiums for each specialty and sub-specialty group as determined by the state Insurance Commission.

§11-13P-3. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit against the tax payable under section sixteen, article twenty-seven of this chapter. The amount of this credit shall be determined and applied as provided in this article.

§11-13P-4. Amount of credit allowed.

The amount of annual credit allowable under this article to an eligible taxpayer shall be equal to ten percent of the adjusted annual medical liability insurance premium for the taxpayer's specialty or subspecialty group or ten percent of the taxpayer's actual annual medical liability insurance premium, whichever is less: Provided, That no credit shall be allowed for any medical liability insurance premium paid on behalf of an eligible taxpayer employed by the state, its agencies or subdivisions or an eligible taxpayer organization pursuant to coverage provided under article twelve, chapter twenty-nine of this code.

§11-13P-5. Excess credit forfeited.

If after application of the credit against tax under this article, any credit remains for the taxable year, the amount remaining and not used is forfeited. Unused credit may not be carried back to any prior taxable year and shall not carry forward to any subsequent taxable year.

§11-13P-6. Application of credit; schedules; estimated taxes.

(a) The credit allowed under this article shall be applied against the tax payable under section sixteen, article twenty-seven of this chapter.

(b) To assert this credit against tax, the eligible taxpayer shall prepare and file with its annual tax return filed under article twenty-seven of this chapter, and for information purposes, a schedule showing the amount paid for medical liability coverage for the taxable year, the amount of credit allowed under this article, the taxes against which the credit is being applied and other information that the Tax Commissioner may require. This annual schedule shall set forth the information and be in the form prescribed by the Tax Commissioner.

(c) An eligible taxpayer may consider the amount of credit allowed under this article when determining the eligible taxpayer's liability under article twenty-seven of this chapter for periodic payments of estimated tax for the taxable year, in accordance with the procedures and requirements prescribed by the Tax Commissioner. The annual total tax liability and total tax credit allowed under this article are subject to adjustment and reconciliation pursuant to the filing of the annual schedule required by subsection (b) of this section.

§11-13P-7. Computation and application of credit.

(a) Credit resulting from premiums directly paid by persons who pay the tax imposed by section sixteen, article twenty-seven of this chapter. - The annual credit allowable under this article for eligible taxpayers other than payors described in subsection (b) of this section, shall be applied as a credit against the eligible taxpayer's state tax liability determined under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.

(b) Credit for premiums directly paid by partners, members or shareholders of partnerships, limited liability companies, or corporations for or on behalf of such organizations; application of credit. -

(1) Qualification for credit.

(A) For purposes of this section the term "eligible taxpayer organization" means a partnership, limited liability company, or corporation that is an eligible taxpayer.

(B) For purposes of this section the term "payor" means a natural person who is a partner, member, shareholder or owner, in whole or in part, of an eligible taxpayer organization and who pays medical liability insurance premiums for or on behalf of the eligible taxpayer organization.

(C) Medical liability insurance premiums paid by a payor (as defined in this section) qualify for tax credit under this article, provided that such payments are made to insure against medical liabilities arising out of or resulting from physicians' services provided by a physician while practicing in service to or under the organizational identity of an eligible taxpayer organization or as an employee of such eligible taxpayer organization where such insurance covers the medical liability of:

(i) the eligible taxpayer organization, or

(ii) one or more physicians practicing in service to or under the organizational identity of the eligible taxpayer organization or as an employee of the eligible taxpayer organization, or

(iii) any combination thereof.

(2) Application of credit by the payor against health care provider tax on physician's services. - The annual credit allowable shall be applied to reduce the tax liability directly payable by the payor under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.

(3) Application of credit by the eligible taxpayer organization against health care provider tax on physician's services. - After application of this credit as provided in subdivision (2) of this subsection, remaining annual credit shall then be applied to reduce the tax liability directly payable by the eligible taxpayer organization under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.

(4) Apportionment among multiple eligible taxpayer organizations. - Where a payor described in subdivision (1) of this subsection pays medical liability insurance premiums for and provides services to or under the organizational identity of two or more eligible taxpayer organizations described in this section or as an employee of two or more such eligible taxpayer organizations, the tax credit shall, for purposes of subdivision (3) of this subsection, be allocated among such eligible taxpayer organizations in proportion to the medical liability insurance premiums paid directly by the payor during the taxable year to cover physicians' services during such year for, or on behalf of, each eligible taxpayer organization. In no event may the total credit claimed by all eligible taxpayers and eligible taxpayer organizations exceed the credit which would be allowable if the payor had paid all such medical liability insurance premiums for or on behalf of one eligible taxpayer organization, and if all physician's services had been performed for, or under the organizational identity of, or by employees of, one eligible taxpayer organization.

§11-13P-8. Legislative rules.

The Tax Commissioner shall propose for promulgation pursuant to the provisions of article three, chapter twenty-nine-a of this code such rules as may be necessary to carry out the purposes of this article.

§11-13P-9. Construction of article; burden of proof.

The provisions of this article shall be reasonably construed. The burden of proof is on the person claiming the credit allowed by this article to establish by clear and convincing evidence that the person is entitled to the amount of credit asserted for the taxable year.

§11-13P-10. Effective date.

This article shall be effective for taxable years beginning after December 31, 2001: Providing, That the assertion of the credit by an eligible taxpayer shall not be allowed prior to July 1, 2002.

§11-13P-11. Termination of tax credit.

No credit shall be allowed under this article for any taxable year ending after December 31, 2004.

§11-13Q-1. Short title.

This article may be cited as the "West Virginia Economic Opportunity Tax Credit Act".

§11-13Q-2. Legislative finding and purpose.

The Legislature finds that the encouragement of economic opportunity in this state is in the public interest and promotes the general welfare of the people of this state. In order to encourage greater capital investment in businesses in this state and thereby increase economic opportunity in this state, there is hereby enacted the economic opportunity tax credit.

§11-13Q-3. Definitions.

(a) General. -– When used in this article, or in the administration of this article, terms defined in subsection (b) have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition, in this article.

(b) Terms defined.

(1) Business. -– The term "business" means any activity which is engaged in by any person in this state which is taxable under article thirteen, twenty-one, twenty-three or twenty-four of this chapter (or any combination of those articles of this chapter).

(2) Business expansion. -– The term "business expansion" means capital investment in a new or expanded business facility in this state.

(3) Business facility. -– The term "business facility" means any factory, mill, plant, refinery, warehouse, building or complex of buildings located within this state, including the land on which it is located, and all machinery, equipment and other real and personal property located at or within the facility, used in connection with the operation of the facility, in a business that is taxable in this state, and all site preparation and start-up costs of the taxpayer for the business facility which it capitalizes for federal income tax purposes.

(4) Commissioner or Tax Commissioner. -– The terms "commissioner" and "Tax Commissioner" are used interchangeably herein and mean the Tax Commissioner of the State of West Virginia, or his or her designee.

(5) Compensation. -– The term "compensation" means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.

(6) Controlled group. -– The term "controlled group" means one or more chains of corporations connected through stock ownership with a common parent corporation if stock possessing at least fifty percent of the voting power of all classes of stock of each of the corporations is owned directly or indirectly by one or more of the corporations; and the common parent owns directly stock possessing at least fifty percent of the voting power of all classes of stock of at least one of the other corporations.

(7) Corporation. -– The term "corporation" means any corporation, joint-stock company or association, and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.

(8) Designee. -– The term "designee" in the phrase "or his designee," when used in reference to the commissioner, means any officer or employee of the State Tax Department duly authorized by the commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

(9) Eligible taxpayer. -– The term "eligible taxpayer" means any person who makes qualified investment in a new or expanded business facility located in this state and creates at least the required number of new jobs and who is subject to any of the taxes imposed by articles thirteen, twenty-one, twenty-three and twenty-four of this chapter (or any combination of those articles). "Eligible taxpayer" shall also include an affiliated group of taxpayers if the group elects to file a consolidated corporation net income tax return under article twenty-four of this chapter.

(10) Expanded facility. -– The term "expanded facility" means any business facility (other than a new or replacement business facility) resulting from the acquisition, construction, reconstruction, installation or erection of improvements or additions to existing property if the improvements or additions are purchased on or after January 1, 2003, but only to the extent of the taxpayer's qualified investment in the improvements or additions.

(11) Includes and including. -– The terms "includes" and "including," when used in a definition contained in this article, shall not be considered to exclude other things otherwise within the meaning of the term defined.

(12) Leased property. -– The term "leased property" does not include property which the taxpayer is required to show on its books and records as an asset under generally accepted principles of financial accounting. If the taxpayer is prohibited from expensing the lease payments for federal income tax purposes, the property shall be treated as purchased property under this section.

(13) New business facility. -– The term "new business facility" means a business facility which satisfies all the requirements of paragraphs (A), (B), (C) and (D) of this subdivision.

(A) The facility is employed by the taxpayer in the conduct of a business the net income of which is or would be taxable under article twenty-one or twenty-four of this chapter. The facility is not considered a new business facility in the hands of the taxpayer if the taxpayer's only activity with respect to the facility is to lease it to another person or persons.

(B) The facility is purchased by, or leased to, the taxpayer on or after January 1, 2003.

(C) The facility was not purchased or leased by the taxpayer from a related person. The commissioner may waive this requirement if the facility was acquired from a related party for its fair market value and the acquisition was not tax motivated.

(D) The facility was not in service or use during the ninety days immediately prior to transfer of the title to the facility, or prior to the commencement of the term of the lease of the facility: Provided, That this ninety-day period may be waived by the commissioner if the commissioner determines that persons employed at the facility may be treated as "new employees" as that term is defined in this subsection.

(14) New employee. -–

(A) The term "new employee" means a person residing and domiciled in this state, hired by the taxpayer to fill a position or a job in this state which previously did not exist in the taxpayer's business enterprise in this state prior to the date on which the taxpayer's qualified investment is placed in service or use in this state. In no case may the number of new employees directly attributable to the investment for purposes of this credit exceed the total net increase in the taxpayer's employment in this state: Provided, That the commissioner may require that the net increase in the taxpayer's employment in this state be determined and certified for the taxpayer's controlled group: Provided, however, That persons filling jobs saved as a direct result of taxpayer's qualified investment in property purchased or leased for business expansion may be treated as new employees filling new jobs if the taxpayer certifies the material facts to the commissioner and the commissioner expressly finds that:

(i) But for the new employer purchasing the assets of a business in bankruptcy under chapter seven or eleven of the United States bankruptcy code and the new employer making qualified investment in property purchased or leased for business expansion, the assets would have been sold by the United States bankruptcy court in a liquidation sale and the jobs saved would have been lost; or

(ii) But for the taxpayer's qualified investment in property purchased or leased for business expansion in this state, the taxpayer would have closed its business facility in this state and the employees of the taxpayer located at the facility would have lost their jobs: Provided, That the commissioner may not make this certification unless the commissioner finds that the taxpayer is insolvent as defined in 11 U.S.C. §101(32) or that the taxpayer's business facility was destroyed, in whole or in significant part, by fire, flood or other act of God.

(B) A person is considered to be a "new employee" only if the person's duties in connection with the operation of the business facility are on:

(i) A regular, full-time and permanent basis:

(I) "Full-time employment" means employment for at least one hundred forty hours per month at a wage not less than the prevailing state or federal minimum wage, depending on which minimum wage provision is applicable to the business;

(II) "Permanent employment" does not include employment that is temporary or seasonal and therefore the wages, salaries and other compensation paid to the temporary or seasonal employees will not be considered for purposes of sections five and seven of this article; or

(ii) A regular, part-time and permanent basis: Provided, That the person is customarily performing the duties at least twenty hours per week for at least six months during the taxable year.

(15) New job. -- The term "new job" means a job which did not exist in the business of the taxpayer in this state prior to the taxpayer's qualified investment being made, and which is filled by a new employee.

(16) New property. -– The term "new property" means:

(A) Property, the construction, reconstruction or erection of which is completed on or after January 1, 2003, and placed in service or use after that date; and

(B) Property leased or acquired by the taxpayer that is placed in service or use in this state on or after January 1, 2003, if the original use of the property commences with the taxpayer and commences after that date.

(17) Original use. -– The term "original use" means the first use to which the property is put, whether or not the use corresponds to the use of the property by the taxpayer.

(18) Partnership and partner. -– The term "partnership" includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust or estate, a corporation or a sole proprietorship. The term "partner" includes a member in such a syndicate, group, pool, joint venture or other organization.

(19) Person. -– The term "person" includes any natural person, corporation or partnership.

(20) Property purchased or leased for business expansion.

(A) Included property. -– Except as provided in paragraph (B), the term "property purchased or leased for business expansion" means real property and improvements thereto, and tangible personal property, but only if the real or personal property was constructed, purchased, or leased and placed in service or use by the taxpayer, for use as a component part of a new or expanded business facility as defined in this section, which is located within the State of West Virginia. This term includes only:

(1) Real property and improvements thereto having a useful life of four or more years, placed in service or use on or after January 1, 2003, by the taxpayer.

(2) Real property and improvements thereto, acquired by written lease having a primary term of ten or more years and placed in service or use by the taxpayer on or after January 1, 2003.

(3) Tangible personal property placed in service or use by the taxpayer on or after January 1, 2003, with respect to which depreciation, or amortization in lieu of depreciation, is allowable in determining the personal or corporation net income tax liability of the business taxpayer under article twenty-one or twenty-four of this chapter, and which has a useful life, at the time the property is placed in service or use in the state, of four or more years.

(4) Tangible personal property acquired by written lease having a primary term of four years or longer, that commenced and was executed by the parties thereto on or after January 1, 2003, if used as a component part of a new or expanded business facility, shall be included within this definition.

(5) Tangible personal property owned or leased, and used by the taxpayer at a business location outside the state which is moved into the State of West Virginia on or after January 1, 2003, for use as a component part of a new or expanded business facility located in the state: Provided, That if the property is owned, it must be depreciable or amortizable personal property for income tax purposes, and have a useful life of four or more years remaining at the time it is placed in service or use in the state, and if the property is leased, the primary term of the lease remaining at the time the leased property is placed in service or use in the state, must be four or more years.

(B) Excluded property. -– The term "property purchased or leased for business expansion" does not include:

(i) Property owned or leased by the taxpayer and for which the taxpayer was previously allowed tax credit under article thirteen-c, thirteen-d or thirteen-e of this chapter, or the tax credits allowed by this article.

(ii) Property owned or leased by the taxpayer and for which the seller, lessor, or other transferor, was previously allowed tax credit under article thirteen-c, thirteen-d or thirteen-e of this chapter, or the tax credits allowed by this article.

(iii) Repair costs, including materials used in the repair, unless for federal income tax purposes the cost of the repair must be capitalized and not expensed.

(iv) Airplanes.

(v) Property which is primarily used outside the state, with use being determined based upon the amount of time the property is actually used both within and outside the state.

(vi) Property which is acquired incident to the purchase of the stock or assets of the seller, unless for good cause shown, the commissioner consents to waiving this requirement.

(vii) Natural resources in place.

(viii) Purchased or leased property, the cost or consideration for which cannot be quantified with any reasonable degree of accuracy at the time the property is placed in service or use: Provided, That when the contract of purchase or lease specifies a minimum purchase price or minimum annual rent the amount thereof shall be used to determine the qualified investment in the property under section eight of this article if the property otherwise qualifies as property purchased or leased for business expansion.

(21) Purchase. -– The term "purchase" means any acquisition of property, but only if:

(A) The property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under section 267 or 707 (b) of the United States Internal Revenue Code of 1986, as amended, and in effect on January 1, 2003.

(B) The property is not acquired by one component member of a controlled group from another component member of the same controlled group. The commissioner can waive this requirement if the property was acquired from a related party for its then fair market value; and

(C) The basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined:

(i) In whole or in part by reference to the federal adjusted basis of the property in the hands of the person from whom it was acquired; or

(ii) Under Section 1014 (e) of the United States Internal Revenue Code of 1986, as amended, and in effect on January 1, 2002.

(22) Qualified activity. -- The term "qualified activity" means any business or other activity subject to any of the taxes imposed by article thirteen, twenty-one, twenty-three or twenty-four of this chapter (or any combination of those articles of this chapter), but does not include the activity of severance or production of natural resources.

(23) Related person. -- The term "related person" means:

(A) A corporation, partnership, association or trust controlled by the taxpayer;

(B) An individual, corporation, partnership, association or trust that is in control of the taxpayer;

(C) A corporation, partnership, association or trust controlled by an individual, corporation, partnership, association or trust that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer.

For purposes of this section, "control," with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation entitled to vote. "Control," with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust is determined in accordance with the rules for constructive ownership of stock provided in section 267 (c) of the United States Internal Revenue Code of 1986, as amended, other than paragraph (3) of that section.

(24) Replacement facility. -- The term "replacement facility" means any property (other than an expanded facility) that replaces or supersedes any other property located within this state that:

(A) The taxpayer or a related person used in or in connection with any activity for more than two years during the period of five consecutive years ending on the date the replacement or superseding property is placed in service by the taxpayer; or

(B) Is not used by the taxpayer or a related person in or in connection with any qualified activity for a continuous period of one year or more commencing with the date the replacement or superseding property is placed in service by the taxpayer.

(25) Research and development. -– The term "research and development" means systematic scientific, engineering or technological study and investigation in a field of knowledge in the physical, computer or software sciences, often involving the formulation of hypotheses and experimentation, for the purpose of revealing new facts, theories or principles, or increasing scientific knowledge, which may reveal the basis for new or enhanced products, equipment or manufacturing processes.

(A) Research and development includes, but is not limited to, design, refinement and testing of prototypes of new or improved products, or design, refinement and testing of manufacturing processes before commercial sales relating thereto have begun. For purposes of this section, commercial sales includes, but is not limited to, sales of prototypes or sales for market testing.

(B) Research and development does not include:

(i) Market research;

(ii) Sales research;

(iii) Efficiency surveys;

(iv) Consumer surveys;

(v) Product market testing;

(vi) Product testing by product consumers or through consumer surveys for evaluation of consumer product performance or consumer product usability;

(vii) The ordinary testing or inspection of materials or products for quality control (quality control testing);

(viii) Management studies;

(ix) Advertising;

(x) Promotions;

(xi) The acquisition of another's patent, model, production or process or investigation or evaluation of the value or investment potential related thereto;

(xii) Research in connection with literary, historical, or similar activities;

(xiii) Research in the social sciences, economics, humanities or psychology and other nontechnical activities; and

(xiv) The providing of sales services or any other service, whether technical service or nontechnical service.

(26) Taxpayer. -- The term "taxpayer" means any person subject to any of the taxes imposed by article thirteen, twenty-one, twenty-three or twenty-four of this chapter (or any combination of those articles of this chapter).

(27) This code. -- The term "this code" means the Code of West Virginia, 1931, as amended.

(28) This state. -- The term "this state" means the State of West Virginia.

(29) Used property. -- The term "used property" means property acquired after December 31, 2002, that is not "new property."

§11-13Q-4. Amount of credit allowed.

(a) Credit allowed. -- Eligible taxpayers are allowed a credit against the portion of taxes imposed by this state that are attributable to and the consequence of the taxpayer's qualified investment in a new or expanded business in this state, which results in the creation of new jobs. The amount of this credit is determined and applied as provided in this article.

(b) Amount of credit. -- The amount of credit allowable is determined by multiplying the amount of the taxpayer's "qualified investment" (determined under section five or eight, or both) in "property purchased or leased for business expansion" (as defined in section three) by the taxpayer's new jobs percentage (determined under section nine). The product of this calculation establishes the maximum amount of credit allowable under this article due to the qualified investment.

(c) Application of credit over ten years. -- The amount of credit allowable must be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the taxpayer places the qualified investment in service or use in this state, unless the taxpayer elected to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the annual income tax return filed under this chapter for the taxable year in which qualified investment is first placed into service or use by the taxpayer. Once made, the election cannot be revoked. The annual credit allowance is taken in the manner prescribed in section seven of this article.

(d) Placed in service or use. -- For purposes of the credit allowed by this section, property is considered placed in service or use in the earlier of the following taxable years:

(1) The taxable year in which, under the taxpayer's depreciation practice, the period for depreciation with respect to the property begins; or

(2) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.

§11-13Q-5. Credit allowed for locating corporate headquarters in this state.

(a) Credit allowed. -- A corporation that presently has its corporate headquarters located outside this state that relocates its corporate headquarters in this state and employs, on a full-time basis, at its new corporate headquarters location, at least fifteen people, who are domiciled in this state, is allowed credit under this article, the amount of which is determined as provided in subsection (b) of this section. The restrictions set forth in subsection (a), section nineteen of this article do not apply to the credit for corporate headquarters relocations allowed under this section.

(b) Determination of credit. -- The amount of credit allowed by subsection (a) is determined, at the election of the taxpayer:

(1) By multiplying the taxpayer's adjusted qualified investment by its new jobs percentage (as determined under section nine of this article); or

(2) By multiplying the taxpayer's adjusted qualified investment by ten percent.

(c) Corporate headquarters relocations after December 31, 2002. -- For purposes of corporate headquarters relocations occurring on or after January 1, 2003, and notwithstanding any other provision of this article to the contrary:

(1) New jobs created in this state by relocation of a corporate headquarters may include jobs created in this state within twelve months before or after the month in which the qualified investment in the corporate headquarters relocation is placed into service or use in this state by:

(A) Relocation or transfer of employees of the corporation or employees of a related corporation or related person from an out-of-state location to the relocated corporate headquarters in this state, who: (i) Are or become employees of the corporation within twelve months before or after the month in which the qualified investment in the corporate headquarters is placed into service or use in this state; and (ii) whose regular place of work is in the corporate headquarters; or

(B) New employees of the corporation whose regular place of work is in the corporate headquarters.

(2) Multiple year projects certified under section six of this article may be allowed for corporate headquarters relocations under this section.

(d) Application of credit. -- The credit allowed by this section is applied in the manner prescribed in section seven of this article: Provided, That the amount of corporation net income taxes against which the credit allowed by this section may be applied is the sum of the corporation net income tax due on adjusted federal taxable income allocated to this state under section seven, article twenty-four of this chapter, plus that portion of the corporation net income tax due on adjusted federal taxable income apportioned to this state under section seven, article twenty-four of this chapter, that is further apportioned to the qualified investment using the payroll factor provided in subdivision (1), subsection (h), section seven of this article or an alternative means of apportionment as prescribed by the commissioner under section seven of this article. For all other purposes, the credit allowed by this section is treated as credit allowed by section four of this article.

(e) Definitions. -- For purposes of this section:

(1) Adjusted qualified investment. -- The term "adjusted qualified investment" means the taxpayer's qualified investment in the corporate headquarters as determined under section eight of this article and rules of the commissioner, plus the cost of the reasonable and necessary expenses it incurred to relocate its corporate headquarters at a location in this state from its prior location outside this state.

(2) Corporate headquarters. -- The term "corporate headquarters" means the place at which the corporation has its commercial domicile and from which the business of the corporation is primarily conducted.

(3) Reasonable and necessary expenses incurred to relocate corporate headquarters. -- The phrase "reasonable and necessary expenses incurred to relocate corporate headquarters" means only those expenses incurred and paid by the corporation, to unrelated third parties, to move its corporate headquarters and its corporate headquarters employees to this state that are, upon application by the corporation, determined by the commissioner to have been both reasonable and necessary to effectuate the move.

(4) The corporation. -- For purposes of this section, the term "the corporation" means the corporation for which the corporate headquarters is relocated.

§11-13Q-6. Credit allowable for certified projects.

(a) In general. -- A multiple year project certified by the commissioner is eligible for the credit allowable by this article. A project eligible for certification under this section is one where the qualified investment under this article creates at least the required minimum number of new jobs but the qualified investment is placed in service or use over a period of up to three successive tax years: Provided, That the qualified investment is made pursuant to a written business facility development plan of the taxpayer providing for an integrated project for investment at one or more new or expanded business facilities, a copy of which must be attached to the taxpayer's application for project certification and approved by the commissioner, and the qualified investment placed in service or use during the first tax year would not have been made without the expectation of making the qualified investment placed in service or use during the next two succeeding tax years;

(b) Application for certification. -- The application for certification of a project under this section shall be filed with and approved by the commissioner prior to any credit being claimed or allowed for the project's qualified investment and new jobs created as a direct result of the qualified investment. This application shall be approved in writing and contain the information as the commissioner may require to determine whether the project should be certified as eligible for credit under this article.

(c) Taking of credit. -– The participant or participants claiming the credit for qualified investments in a certified project shall annually file with their income tax returns filed under this chapter:

(A) Certification that the participant's qualified investment property continues to be used in the project and if disposed of during the tax year, was not disposed of prior to expiration of its useful life;

(B) Certification that the new jobs created by the project's qualified investment continue to exist and are filled by persons who are residents of this state; and

(C) Any other information the commissioner requires to determine continuing eligibility to claim the annual credit allowance for the project's qualified investment.

§11-13Q-7. Application of annual credit allowance.

(a) In general. -- The aggregate annual credit allowance for the current taxable year is an amount equal to the sum of the following:

(1) The one-tenth part allowed under section four of this article for qualified investment placed into service or use during a prior taxable year; plus

(2) The one-tenth part allowed under section four of this article for qualified investment placed into service or use during the current taxable year; plus

(3) The one-tenth part allowed under section five of this article for locating corporate headquarters in this state; or the amount allowed under section ten of this article of the taxable year.

(b) Application of current year annual credit allowance. -– The amount determined under subsection (a) of this section is allowed as a credit against eighty percent of that portion of the taxpayer's state tax liability which is attributable to and the direct result of the taxpayer's qualified investment, and applied as provided in subsections (c) through (f), both inclusive, of this section, and in that order: Provided, That if the median salary of the new jobs is higher than the statewide average nonfarm payroll wage, as determined annually by the West Virginia Bureau of Employment Programs, the amount determined under subsection (a) of this section is allowed as a credit against one hundred percent of that portion of the taxpayers state tax liability which is attributable to and the direct result of the taxpayer's qualified investment, and shall be applied, as provided in subsections (c) through (f), both inclusive, of this section, and in that order.

(c) Business and occupation taxes. -– That portion of the allowable credit attributable to qualified investment in a business or other activity subject to the taxes imposed under section two-o, article thirteen of this chapter must first be applied to reduce the taxes imposed or payable under section two-o, article thirteen of this chapter, for the taxable year (determined before application of allowable credits against tax and the annual exemption). In no case may the credit allowed under this article be applied to reduce any tax imposed or payable under section two-f, or under any other section of article thirteen of this chapter except section two-o.

(1) If the taxes due under section two-o, article thirteen of this chapter are not solely attributable to and the direct result of the taxpayer's qualified investment in a business or other activity taxable under section two-o, article thirteen of this chapter, the amount of those taxes that are attributable is determined by multiplying the amount of taxes due under section two-o, article thirteen of this chapter, for the taxable year (determined before application of any allowable credits against tax and the annual exemption), by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the qualified investment in a business or other activity taxable under section two-o, article thirteen of this chapter. The denominator of the fraction shall be the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the business or other activity of the taxpayer that is taxable under article thirteen of this chapter.

(2) The annual exemption allowed by section three, article thirteen of this chapter, plus any credits allowable under articles thirteen-d, thirteen-e, thirteen-r and thirteen-s of this chapter, shall be applied against and reduce only the portion of article thirteen taxes not apportioned to the qualified investment under this article: Provided, That any excess exemption or credits may be applied against the amount of article thirteen taxes apportioned to the qualified investment under this article, that is not offset by the amount of annual credit against the taxes allowed under this article for the taxable year, unless their application is otherwise prohibited by this chapter.

(d) Business franchise tax. -–

(1) After application of subsection (c) of this section, any unused allowable credit is next applied to reduce the taxes imposed by article twenty-three of this chapter for the taxable year (determined after application of the credits against tax provided in section seventeen of article twenty-three of this chapter, but before application of any other allowable credits against tax).

(2) If the taxes due under article twenty-three of this chapter are not solely attributable to and the direct result of the taxpayer's qualified investment in a business or other activity taxable under article twenty-three of this chapter for the taxable year, the amount of the taxes which are so attributable are determined by multiplying the amount of taxes due (determined after application of the credits against tax as provided in section seventeen, article twenty-three of this chapter, but before application of any other allowable credits), by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the qualified investment in a business or other activity taxable under article twenty-three of this chapter. The denominator of the fraction is wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state, whose positions are directly attributable to the business or other activity of the taxpayer that is taxable under article twenty-three of this chapter.

(3) Any credits allowable under articles thirteen-d, thirteen-e, thirteen-r and thirteen-s of this chapter are applied against and reduce only the portion of article twenty-three taxes not apportioned to the qualified investment under this article: Provided, That any excess exemption or credits may be applied against the amount of article twenty-three taxes apportioned to the qualified investment under this article that is not offset by the amount of annual credit against those taxes allowed under this article for the taxable year, unless their application is otherwise prohibited by this chapter.

(e) Corporation net income taxes. --

(1) After application of subsections (c) and (d) of this section, any unused credit is next applied to reduce the taxes imposed by article twenty-four of this chapter for the taxable year (determined before application of allowable credits against tax).

(2) If the taxes due under article twenty-four of this chapter (determined before application of allowable credits against tax) are not solely attributable to and the direct result of the taxpayer's qualified investment, the amount of the taxes that is attributable are determined by multiplying the amount of taxes due under article twenty-four of this chapter for the taxable year (determined before application of allowable credits against tax), by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state whose positions are directly attributable to the qualified investment. The denominator of the fraction is the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer employed in this state.

(3) Any credits allowable under article twenty-four of this chapter are applied against and reduce only the amount of article twenty-four taxes not apportioned to the qualified investment under this article: Provided, That any excess credits may be applied against the amount of article twenty-four taxes apportioned to the qualified investment under this article that is not offset by the amount of annual credit against such taxes allowed under this article for the taxable year, unless their application is otherwise prohibited by this chapter.

(f) Personal income taxes. --

(1) If the person making the qualified investment is an electing small business corporation (as defined in section 1361 of the United States Internal Revenue Code of 1986, as amended), a partnership, a limited liability company that is treated as a partnership for federal income tax purposes or a sole proprietorship, then any unused credit (after application of subsections (c), (d) and (e) of this section) is allowed as a credit against the taxes imposed by article twenty-one of this chapter on the income from business or other activity subject to tax under article thirteen or twenty-three of this chapter or on income of a sole proprietor attributable to the business.

(2) Electing small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate the credit allowed by this article among its members in the same manner as profits and losses are allocated for the taxable year.

(3) If the amount of taxes due under article twenty-one of this chapter (determined before application of allowable credits against tax) that is attributable to business, is not solely attributable to and the direct result of the qualified investment of the electing small business corporation, limited liability company, partnership, other unincorporated organization or sole proprietorship, the amount of the taxes that are so attributable are determined by multiplying the amount of taxes due under article twenty-one of this chapter (determined before application of allowable credits against tax), that is attributable to business by a fraction, the numerator of which is all wages, salaries and other compensation paid during the taxable year to all employees of the electing small business corporation, limited liability company, partnership, other unincorporated organization or sole proprietorship employed in this state, whose positions are directly attributable to the qualified investment. The denominator of the fraction is the wages, salaries and other compensation paid during the taxable year to all employees of the taxpayer.

(4) No credit is allowed under this section against any employer withholding taxes imposed by article twenty-one of this chapter.

(g) If the wages, salaries and other compensation fraction formula provisions of subsections (c) through (f) of this section, inclusive, do not fairly represent the taxes solely attributable to and the direct result of qualified investment of the taxpayer the commissioner may require, in respect to all or any part of the taxpayer's businesses or activities, if reasonable:

(1) Separate accounting or identification;

(2) Adjustment to the wages, salaries and other compensation fraction formula to reflect all components of the tax liability;

(3) The inclusion of one or more additional factors that will fairly represent the taxes solely attributable to and the direct result of the qualified investment of the taxpayer and all other project participants in the businesses or other activities subject to tax; or

(4) The employment of any other method to effectuate an equitable attribution of the taxes.

In order to effectuate the purposes of this subsection, the commissioner may propose for promulgation rules, including emergency rules, in accordance with article three, chapter twenty-nine-a of this code.

(h) Unused credit. -- If any credit remains after application of subsection (b) of this section, the amount thereof is carried forward to each ensuing tax year until used or until the expiration of the third taxable year subsequent to the end of the initial ten-year credit application period. If any unused credit remains after the thirteenth year, the amount thereof is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.

§11-13Q-8. Qualified investment.

(a) General. -- The qualified investment in property purchased or leased for business expansion is the applicable percentage of the cost of each property purchased or leased for the purpose of business expansion which is placed in service or use in this state by the taxpayer during the taxable year.

(b) Applicable percentage. -- For the purpose of subsection (a), the applicable percentage of any property is determined under the following table:

If useful life is: The applicable percentage is:

Less than 4 years 0%

4 years or more but less than 6 years 33 1/3%

6 years or more but less than 8 years 66 2/3%

8 years or more 100%

The useful life of any property, for purposes of this section, is determined as of the date the property is first placed in service or use in this state by the taxpayer, determined in accordance with such rules and requirements the Tax Commissioner may prescribe.

(c) Cost. -- For purposes of subsection (a), the cost of each property purchased for business expansion is determined under the following rules:

(1) Trade-ins. -- Cost does not include the value of property given in trade or exchange for the property purchased for business expansion.

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property does not include any insurance proceeds received in compensation for the loss.

(3) Rental property. -–

(A) The cost of real property acquired by written lease for a primary term of ten years or longer is one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years.

(B) The cost of tangible personal property acquired by written lease for a primary term of:

(i) Four years, or longer, is one third of the rent reserved for the primary term of the lease;

(ii) Six years, or longer, is two thirds of the rent reserved for the primary term of the lease; or

(iii) Eight years, or longer, is one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years: Provided, That in no event may rent reserved include rent for any year subsequent to expiration of the book life of the equipment, determined using the straight-line method of depreciation.

(4) Self-constructed property. -- In the case of self-constructed property, the cost thereof is the amount properly charged to the capital account for depreciation in accordance with federal income tax law.

(5) Transferred property. -- The cost of property used by the taxpayer out-of-state and then brought into this state, is determined based on the remaining useful life of the property at the time it is placed in service or use in this state, and the cost is the original cost of the property to the taxpayer less straight line depreciation allowable for the tax years or portions thereof the taxpayer used the property outside this state. In the case of leased tangible personal property, cost is based on the period remaining in the primary term of the lease after the property is brought into this state for use in a new or expanded business facility of the taxpayer, and is the rent reserved for the remaining period of the primary term of the lease, not to exceed twenty years, or the remaining useful life of the property (determined as aforesaid), whichever is less.

§11-13Q-9. New jobs percentage.

(a) In general. — The new jobs percentage is based on the number of new jobs created in this state directly attributable to the qualified investment of the taxpayer.

(b) When a job is attributable. -– An employee’s position is directly attributable to the qualified investment if:

(1) The employee’s service is performed or his or her base of operations is at the new or expanded business facility;

(2) The position did not exist prior to the construction, renovation, expansion, or acquisition of the business facility and the making of the qualified investment; and

(3) But for the qualified investment, the position would not have existed.

(c) Applicable percentage. –

(1) For the purpose of subsection (a) of this section, the applicable new jobs percentage is determined under the following table:

If number of The applicable

new jobs is at least: percentage is:

20 20%

280 25%

520 30%

(2) Provided, That for credit applications filed for taxable years beginning on and after January 1, 2022, for the purpose of subsection (a) of this section, the applicable new jobs percentage is determined under the following table:

If number of The applicable

new jobs is at least: percentage is:

10 10%

20 20%

280 25%

520 30%

(d) Certification of new jobs. — With the annual return for the applicable taxes filed for the taxable year in which the qualified investment is first placed in service or use in this state, the taxpayer shall estimate and certify the number of new jobs reasonably projected to be created by it in this state within the period prescribed in subsection (f) of this section that are, or will be, directly attributable to the qualified investment of the taxpayer. For purposes of this section, “applicable taxes” means the taxes imposed by §11-13-1, et seq., §11-21-1, et seq., and §11-24-1, et seq. of this code against which this credit is applied.

(e) Equivalency of permanent employees. — The hours of part-time employees shall be aggregated to determine the number of equivalent full-time employees for the purpose of this section.

(f) Redetermination of new jobs percentage. — With the annual return for the applicable taxes imposed, filed for the third taxable year in which the qualified investment is in service or use, the taxpayer shall certify the actual number of new jobs created by it in this state that are directly attributable to the qualified investment of the taxpayer.

(1) If the actual number of jobs created would result in a higher new jobs percentage, the credit allowed under this article shall be redetermined and amended returns filed for the first and second taxable years that the qualified investment was in service or use in this state.

(2) If the actual number of jobs created would result in a lower new jobs percentage, the credit previously allowed under this article shall be redetermined and amended returns filed for the first and second taxable years. In applying the amount of redetermined credit allowable for the two preceding taxable years, the redetermined credit shall first be applied to the extent it was originally applied in the prior two years to personal income taxes, then to corporation net income taxes, and, lastly, to business and occupation taxes. Any additional taxes due under this chapter shall be remitted with the amended returns filed with the commissioner, along with interest, as provided in §11-10-17 of this code, and a 10-percent penalty determined on the amount of taxes due with the amended return, which may be waived by the commissioner if the taxpayer shows that the overclaimed amount of the new jobs percentage was due to reasonable cause and not due to willful neglect.

(g) Additional new jobs percentage. –- When the qualified investment is $20 million or more and, if the number of full-time construction laborers and mechanics working at the job site of the new or expanded business facility is 75 or more, or if the number of hours of all construction laborers and mechanics working at the job site is equal to or greater than the number of hours 75 full-time construction laborers and mechanics would have worked at the job site during a 12 consecutive month period, a taxpayer that is allowed a new jobs percentage determined under subsection (a) of this section shall be allowed a new jobs percentage that is five percentage points higher than the new jobs percentage allowed under subsection (a) of this section. In no event may construction laborers and mechanics be used to attain or retain a subsection (a) new jobs percentage. The number of full-time construction laborers and mechanics working at the job site shall be determined by dividing the total number of hours worked by all construction laborers and mechanics on a new or expanded business facility during a 12 consecutive month period by 2,080 hours per year. A taxpayer may not claim the additional new jobs percentage allowed by this section unless the taxpayer includes with the certification filed under subsection (d) of this section a certification signed by the general contractor or the construction manager certifying that construction laborers employed at the job site during a consecutive 12 month period aggregated the equivalent of at least 75 full-time employees and the taxpayer has received from the general contractor or construction manager records substantiating the certification, which records shall be retained by the taxpayer for 13 years after the day the expansion to an existing business facility, or the new business facility, is first placed in service or use by the taxpayer. For purposes of this subsection:

(1) The term “construction laborers and mechanics” means those workers, utilized by a contractor or subcontractor at any tier, whose duties are manual or physical in nature, including those workers who use tools or are performing the work of a trade, as distinguished from mental or managerial and working foremen who devote more than 20 percent of their time during a workweek performing the duties of a laborer or mechanic; and

(2) The term “job site” is limited to the physical place or places where the construction called for in the contract will remain when the work on it is completed and nearby property, as described in subdivision (3) of this subsection, used by the contractor or subcontractor during construction that, because of proximity, can reasonably be included in the “site”.

(3) Except as provided in subdivision (4) of this subsection, fabrication plants, mobile factories, batch plants, borrow pits, job headquarters and tool yards are part of the “job site” provided they are dedicated exclusively, or nearly so, to performance of the contract or project and are located in proximity to the actual construction location so that it would be reasonable to include them.

(4) The term “job site” does not include permanent home offices, branch offices, branch plant establishments, fabrication yards or tool yards of a contractor or subcontractor whose locations and continuance in operation are determined without regard to the contract or subcontract for construction of a new or expanded business facility.

§11-13Q-10. Credit for small business.

(a) Small business defined. — For purposes of this section, the term “small business” means a business which has annual gross receipts of not more than $7 million (including the gross receipts of any affiliates in its controlled group): Provided, That beginning January 1, 2004, and on January 1 of each year thereafter, the commissioner shall prescribe an amount that shall apply in lieu of the $7 million amount during that calendar year. This amount is prescribed by increasing the $7 million amount by the cost-of-living adjustment for that calendar year. The requirements for annual gross receipts, once met by a given taxpayer in that taxable year when qualified investment is first placed in service or use, may not again be applied to that same taxpayer in subsequent years to defeat the small business credit to which the taxpayer gained entitlement in that year.

(1) Cost-of-living adjustment. — For purposes of subsection (a) of this section, the cost-of-living adjustment for any calendar year is the percentage (if any) by which the consumer price index for the preceding calendar year exceeds the consumer price index for the calendar year 2002.

(2) Consumer price index for any calendar year. — For purposes of subdivision (1) of this subsection, the consumer price index for any calendar year is the average of the federal consumer price index as of the close of the 12-month period ending on August 31 of that calendar year.

(3) Consumer price index. — For purposes of subdivision (2) of this subsection, the term “Federal Consumer Price Index” means the most recent consumer price index for all urban consumers published by the United States department of labor.

(4) Rounding. — If any increase under subdivision (1) of this subsection is not a multiple of $50, the increase shall be rounded to the next lowest multiple of $50.

(b) Amount of credit allowed. —

(1) Credit allowed. — An eligible small business taxpayer is allowed a credit against the portion of taxes imposed by this state that are attributable to and the direct consequence of the eligible small business taxpayer’s qualified investment in a new or expanded business in this state which results in the creation of at least 10 new jobs within 12 months after placing qualified investment into service. The amount of this credit is determined as provided in subdivision (2) of this subsection.

(2) Amount of credit. — The annual amount of credit allowable under this subsection is determined by dividing the amount of the eligible small business taxpayer’s “qualified investment” (determined under §11-13Q-8. of this code) in “property purchased for business expansion” (as defined in §11-13Q-3 of this code) by 10. The amount of qualified investment so apportioned to each year of the 10-year credit period is the annual measure against which a taxpayer’s annual new jobs percentage (determined under subsection (d) of this section) is applied. The product of this calculation establishes the maximum amount of credit allowable each year for 10 consecutive years under this section due to the qualified investment.

(3) Application of credit. — The annual credit allowance shall be taken beginning with the taxable year in which the taxpayer places the qualified investment into service or use in this state, unless the taxpayer elects to delay the beginning of the 10-year credit period until the next succeeding taxable year. This election is made in the annual income tax return filed under this chapter by the taxpayer for the taxable year in which the qualified investment is first placed in service or use. Once made, this election cannot be revoked. The annual credit allowance shall be taken and applied in the manner prescribed in §11-13Q-7 of this code.

(c) New jobs. — The term “new jobs” has the meaning ascribed to it in §11-13Q-3 of this code.

(1) The term “new employee” has the meaning ascribed to it in §11-13Q-3 of this code: Provided, That this term does not include employees filling new jobs who:

(A) Are related individuals, as defined in subsection (i), section 51 of the Internal Revenue Code of 1986, or a person who owns 10 percent or more of the business with such ownership interest to be determined under rules set forth in subsection (b), section 267 of said Internal Revenue Code; or

(B) Worked for the taxpayer during the six-month period ending on the date the taxpayer’s qualified investment is placed in service or use and is rehired by the taxpayer during the six-month period beginning on the date taxpayer’s qualified investment is placed in service or use.

(2) When a job is attributable. — An employee’s position is directly attributable to the qualified investment if:

(A) The employee’s service is performed or his or her base of operations is at the new or expanded business facility;

(B) The position did not exist prior to the construction, renovation, expansion, or acquisition of the business facility and the making of the qualified investment; and

(C) But for the qualified investment, the position would not have existed.

(d) New jobs percentage. — The annual new jobs percentage is based on the number of new jobs created in this state by the taxpayer directly attributable to taxpayer’s qualified investment.

(1) If at least 10 new jobs are created and filled during the taxable year in which the qualified investment is placed in service or use, the applicable new jobs percentage is 10 percent.

(2) During each of the remaining nine years of the 10-year credit period, the annual new jobs percentage is based on the average number of new jobs filled during that taxable year: Provided, That for purposes of estimating the new jobs percentage that will be applicable for each subsequent credit year, the taxpayer shall use the new jobs percentage allowable for the taxable year immediately prior thereto, and in the annual income tax return filed under this chapter for the then current tax year, the taxpayer shall redetermine his or her allowable new jobs percentage for that year based on the average number of new employees employed in new jobs during that year (determined on a monthly basis) created as the direct result of the taxpayer’s qualified investment.

(e) Certification of new jobs. — With the annual income tax return filed under this chapter for each taxable year during the 10-year credit period, the taxpayer shall certify:

(1) The new jobs percentage for that taxable year;

(2) The amount of the credit allowance for that year;

(3) If the business is a partnership, limited liability company or electing small business corporation, the amount of credit allocated to the partners, members, or shareholders, as the case may be for that year;

(4) That qualified investment property continue to be used in the business, or if any of it was disposed of during the year the date of disposition and that the property was not disposed of prior to expiration of its useful life, as determined under §11-13Q-8 of this code; and

(5) That the new jobs created by the qualified investment continue to exist and are filled by persons who meet the definition of new employee (as defined in this section).

(f) Small business project. — A small business may apply to the commissioner under §11-13Q-6 of this code for certification as a project if that project will create at least 10 new jobs.

(g) Rules. — The commissioner may prescribe such rules as he or she determines necessary in order to determine the amount of credit allowed under this section to a taxpayer; to verify a taxpayer’s continued entitlement to claim the credit; and to verify proper application of the credit allowed.

(h) The commissioner may require a taxpayer intending to claim credit under this section to file with the commissioner a notice of intent to claim this credit, before the taxpayer begins reducing his or her monthly or quarterly installment payments of estimated tax for the credit provided in this section.

(i) Termination of Credit — No credit is allowable under this section to any taxpayer for investment placed in service or use in any tax year beginning on or after January 1, 2022. Taxpayers that have gained lawful entitlement to the credit allowable under this section pursuant to qualified investment placed in service or use prior to January 1, 2022, shall retain that entitlement and apply the credit in due course pursuant to the requirements and limitations of this article.

§11-13Q-10a. Credit allowed for specified high technology manufacturers.

(a) High technology manufacturing business defined. –

For purposes of this section, the term “high technology manufacturing business” means and is limited to only those businesses engaged in a business enumerated in subdivision (1) of this subsection: Provided, That for tax years beginning on and after January 1, 2022, the term “high technology manufacturing business” means and is limited to only those businesses engaged in a business enumerated in subdivision (1) or subdivision (2), or both, of this subsection.

(1) “High technology manufacturing business” means a manufacturing activity properly classified as having one or more of the following six-digit North American Industry Classification System code numbers.

(2) “High technology manufacturing business” means, in addition to those activities enumerated in subdivision (1) of this subsection:

(A) The activity of manufacturing drones, target drones, unmanned aircraft or unmanned robotic aircraft,

(B) The activity of manufacturing autonomous motor vehicles,

(C) The activity of manufacturing robots, robotic medical machines or equipment or robotic surgical machines or equipment,

(D) The activity of manufacturing machines, equipment and products predominantly operated by and incorporating artificial intelligence.

(E) The activity of manufacturing biotechnology products.

(F) The activity of manufacturing medical devices.

(3) Definitions – For purposes of this section.

(A) Artificial Intelligence — For purposes of this section “artificial intelligence” means computers and computer systems that, by design and function, perform tasks that would typically require human intelligence, including decision-making, visual perception, speech recognition, or translation of one human language into another human language.

(B) Autonomous — For purposes of this section “autonomous” means that set of characteristics of a machine which taken as a whole cause the machine to be capable of performing designated tasks without immediate direct or explicit human control or intervention beyond initial programming and preliminary set up and initiation.

(C) Autonomous Motor Vehicle — For purposes of this section, The term “autonomous motor vehicle” means a motor vehicle that conforms to Level 3, level 4 or level 5 of the Society of Automotive Engineers automation level definitions specified in SAE International Standard J3016.

(D) Biotechnology

(i) “Biotechnology” means scientific invention, processes and methods, or industrial invention, processes and methods, based on the science of biology, microbiology, molecular biology, cellular biology, biochemistry, or biophysics, or any combination thereof. Biotechnology includes, but is not limited to, recombinant DNA techniques, genetics and genetic engineering, cell fusion techniques, and bioprocesses, using living organisms, or parts of organisms.

(ii) Biotechnology does not include farming, agriculture, or animal or apiary husbandry, or the production of any crop or agricultural product by traditional growing processes or by hydroponic growing processes, or fish farming, or the raising or growing or production of fish or any aquatic animal or product.

(iii) Biotechnology does not include zymurgy, wine making, brewing, preparation of yeast used in food production or preparation, or any food or drink preparation or production.

(E) “Biotechnology product” means any virus, therapeutic serum, antibody, protein, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product, or analogous product produced through the application of biotechnology that is used in the prevention, treatment, or cure of diseases or injuries to humans, animals, or plants.

(F) Drone – For purposes of this section “drone” means an unmanned aircraft that may be controlled either remotely or by an autonomous system, which may work with internal systemic sensors or ground positioning satellite systems, or both.

(G) “Medical device” means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, that is:

(i) Recognized in the national formulary or any supplement thereof, or the United States pharmacopeia, or any supplement thereof;

(ii) Intended for use in the diagnosis of disease, or in the cure, mitigation, treatment, or prevention of disease or other conditions in human beings or animals; or

(iii) Intended to affect the structure or any function of the body of human beings or animals, and which does not achieve any of its primary intended purposes through chemical action within or on the body of human beings or animals and which is not dependent upon being metabolized for the achievement of any of its principal intended purposes.

(H) Program – For purposes of this section “program” means a set of instructions that can be executed by a computer, or other machine or device to perform calculations, processes or operations, or a combination thereof, to execute a specific task or series of tasks.

(I) Robot – For purposes of this section “robot” means a programmable machine, for which operating instructions are typically derived from computer programming, which machine is: (i) Capable of performing operations and processes involving physical movement; (ii) designed to operate with a degree of autonomy; (iii) capable of processing data and information, including data or information derived from visual perception or other physical perceptions; and (iv) capable of engaging in intelligent behavior derived from artificial intelligence.

(b) Amount of credit allowed.

(1) Credit allowed. — An eligible high technology manufacturing business taxpayer is allowed a credit against the portion of taxes imposed by this state that are attributable to and the direct consequence of the eligible high technology manufacturing business taxpayer’s qualified investment in a new or expanded high technology manufacturing business in this state which results in the creation of at least 20 new jobs within 12 months after placing qualified investment into service. The amount of this credit is determined as provided in this section.

(2) Amount of credit. — The annual amount of credit allowable under this subsection is 100 percent of the tax attributable to qualified investment, for each consecutive year of a 20-year credit period.

(3) Application of credit. — The annual credit allowance shall be taken beginning with the taxable year in which the taxpayer places the qualified investment into service or use in this state, unless the taxpayer elects to delay the beginning of the 20-year credit period until the next succeeding taxable year. This election is made in the annual income tax return filed under this chapter by the taxpayer for the taxable year in which the qualified investment is first placed in service or use. Once made, this election cannot be revoked. The annual credit allowance shall be taken and applied against the taxes enumerated in §11-13Q-7 of this code. The credit shall offset 100 percent of tax attributable to qualified investment and shall be applied for a period of 20 consecutive years without carryover.

(c) New jobs. — The term “new jobs” has the meaning ascribed to it in §11-13Q-3 of this code.

(1) The term “new employee” has the meaning ascribed to it in §11-13Q-3 of this code: Provided, That this term does not include employees filling new jobs who:

(A) Are related individuals, as defined in subsection (i), section 51 of the Internal Revenue Code of 1986, or a person who owns 10 percent or more of the business with such ownership interest to be determined under rules set forth in subsection (b), section 267 of the Internal Revenue Code of 1986; or

(B) Worked for the taxpayer during the six-month period ending on the date the taxpayer’s qualified investment is placed in service or use and is rehired by the taxpayer during the six-month period beginning on the date taxpayer’s qualified investment is placed in service or use.

(2) When a job is attributable. — An employee’s position is directly attributable to the qualified investment if:

(A) The employee’s service is performed or his or her base of operations is at the new or expanded business facility;

(B) The position did not exist prior to the construction, renovation, expansion, or acquisition of the business facility and the making of the qualified investment;

(C) But for the qualified investment, the position would not have existed; and

(D) The median compensation of the new jobs attributable to the qualified investment is greater than $45,000 per year: Provided, That this median compensation amount shall be adjusted for inflation each year in accordance with the provisions of this section.

(3) Median compensation adjusted for inflation. — The median compensation requirements applicable to high technology manufacturing business taxpayers for purposes of this section, shall be adjusted for inflation by application of a cost-of-living adjustment. The adjusted median compensation amount shall be applicable, as adjusted, each year throughout the 20-year credit period. Failure of a taxpayer entitled to credit under this section to meet the median compensation requirement for any year will result in forfeiture of the credit for that year. However, if in any succeeding year within the original 20 year credit period, the taxpayer pays a median compensation to its employees which exceeds the inflation adjusted median compensation amount for that year, the taxpayer shall regain entitlement to take the credit for that year only. No credit forfeited in a prior year shall be taken, and the tax year or years to which the forfeited credit would have been applied shall be forfeited and deducted from the remainder of the years over which the credit can be taken.

(A) Cost-of-living adjustment. — For purposes of this section, the cost-of-living adjustment for any calendar year is the percentage, if any, by which the consumer price index for the preceding calendar year exceeds the consumer price index for the calendar year 2007.

(B) Consumer price index for any calendar year. — For purposes of this section, the consumer price index for any calendar year is the average of the federal consumer price index as of the close of the 12-month period ending on August 31 of such calendar year.

(C) Consumer price index. — For purposes of this section, the term “Federal Consumer Price Index” means the last consumer price index for all urban consumers published by the United States Department of Labor.

(D) Rounding. — If any increase in the median compensation amount under this section is not a multiple of $50, such increase shall be rounded to the next lowest multiple of $50.

(d) Credit exclusion. —

(1) Any taxpayer that has taken the credit against tax authorized under this section shall not be eligible for application of the credit allowed under any other section of this article during the twenty year credit period authorized by this section for the same qualified investment on which credit allowed by this article was taken.

(2) Any taxpayer that has taken the credit against tax authorized under this section may not take the credit authorized under any other provision of this code for the same qualified investment on which credit allowed by this article was taken.

(e) Rules. — The commissioner may prescribe such rules as he or she determines necessary in order to determine the amount of credit allowed under this section to a taxpayer; to verify a taxpayer’s continued entitlement to claim the credit; and to verify proper application of the credit allowed.

(f) Notices and reports. — The commissioner may require a taxpayer intending to claim credit under this section to file with the commissioner a notice of intent to claim this credit before the taxpayer begins reducing his or her monthly or quarterly installment payments of estimated tax for the credit provided in this section.

§11-13Q-11. Forfeiture of unused tax credits; redetermination of credit allowed.

(a) Disposition of property or cessation of use. -- If during any taxable year, property with respect to which a tax credit has been allowed under this article:

(1) Is disposed of prior to the end of its useful life, as determined under section eight of this article; or

(2) Ceases to be used in an eligible business of the taxpayer in this state prior to the end of its useful life, as determined under section eight of this article, then the unused portion of the credit allowed for the property is forfeited for the taxable year and all ensuing years. Additionally, except when the property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, the taxpayer shall redetermine the amount of credit allowed in all earlier years by reducing the applicable percentage of cost of the property allowed under section eight of this article, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state in the new or expanded business of the taxpayer. The taxpayer shall then file a reconciliation statement for the year in which the forfeiture occurs and pay any additional taxes owed due to reduction of the amount of credit allowable for the earlier years, plus interest and any applicable penalties. The reconciliation statement shall be filed with the annual return for the primary tax for which the taxpayer is liable under articles thirteen and twenty-three of this chapter.

(b) Cessation of operation of business facility. -- If during any taxable year the taxpayer ceases operation of a business facility in this state for which credit was allowed under this article, before expiration of the useful life of property with respect to which tax credit has been allowed under this article, then the unused portion of the allowed credit is forfeited for the taxable year and for all ensuing years. Additionally, except when the cessation is due to fire, flood, storm or other casualty, the taxpayer shall redetermine the amount of credit allowed in earlier years by reducing the applicable percentage of cost of the property allowed under section eight of this article, to correspond with the percentage of cost allowable for the period of time that the property was actually used in this state in a business of the taxpayer that is taxable under article thirteen, twenty-three or twenty-four of this chapter, or in the case of a sole proprietorship, article twenty-one of this chapter. The taxpayer shall then file a reconciliation statement with the annual return for the primary tax for which the taxpayer is liable under articles thirteen, twenty-one or twenty-three of this chapter, for the year in which the forfeiture occurs, and pay any additional taxes owed due to the reduction of the amount of credit allowable for the earlier years, plus interest and any applicable penalties.

(c) Reduction in number of employees. -- If during any taxable year subsequent to the taxable year in which the new jobs percentage is redetermined as provided in section nine of this article, the average number of employees of the taxpayer, for the then current taxable year, employed in positions created because of and directly attributable to the qualified investment falls below the minimum number of new jobs created upon which the taxpayer's annual credit allowance is based, the taxpayer shall calculate what his or her annual credit allowance would have been had his or her new jobs percentage been determined based upon the average number of employees, for the then current taxable year, employed in positions created because of and directly attributable to the qualified investment. The difference between the result of this calculation and the taxpayer's annual credit allowance for the qualified investment as determined under section four of this article, is forfeited for the then current taxable year, and for each succeeding taxable year unless for a succeeding taxable year the taxpayer's average employment in positions directly attributable to the qualified investment once again meets the level required to enable the taxpayer to utilize its full annual credit allowance for that taxable year.

§11-13Q-12. Recapture of credit; recapture tax imposed.

(a) When recapture tax applies. --

(1) Any person who places qualified investment property in service or use and who fails to use the qualified investment property for at least the period of its useful life (determined as of the time the property was placed in service or use), or the period of time over which tax credits allowed under this article with respect to the property are applied under this article, whichever period is less, and who reduces the number of its employees filling new jobs in its business in this state, which were created and are directly attributable to the qualified investment property, after the third taxable year in which the qualified investment property was placed in service or use, or fails to continue to employ individuals in all the new jobs created as a direct result of the qualified investment property and used to qualify for the credit allowed by this article, prior to the end of the tenth taxable year after the qualified investment property was placed in service or use, the person shall pay the recapture tax imposed by subsection (b) of this section.

(2) This section does not apply when section thirteen of this article applies. However, the successor, or the successors, and the person, or persons, who previously claimed credit under this article with respect to the qualified investment property and the new jobs attributable thereto, are jointly and severally liable for payment of any recapture tax subsequently imposed under this section with respect to the qualified investment property and new jobs.

(b) Recapture tax imposed. --

The recapture tax imposed by this subsection is the amount determined as follows:

(1) Full recapture. -- If the taxpayer prematurely removes qualified investment property placed in service (when considered as a class) from economic service in the taxpayer's qualified investment business activity in this state, and the number of employees filling the new jobs created by the person falls below the number of new jobs required to be created in order to qualify for the amount of credit being claimed, the taxpayer shall recapture the amount of credit claimed under section seven of this article for the taxable year, and all preceding taxable years, on qualified investment property which has been prematurely removed from service. The amount of tax due under this subdivision is an amount equal to the amount of credit that is recaptured under this subdivision.

(2) Partial recapture. -- If the taxpayer prematurely removes qualified investment property from economic service in the taxpayer's qualified investment business activity in this state, and the number of employees filling the new jobs created by the person remains twenty or more, but falls below the number necessary to sustain continued application of credit determined by use of the new job percentage upon which the taxpayer's one-tenth annual credit allowance was determined under section four or section ten of this article, taxpayer shall recapture an amount of credit equal to the difference between:

(A) The amount of credit claimed under section seven of this article for the taxable year, and all preceding taxable years; and

(B) The amount of credit that would have been claimed in those years if the amount of credit allowable under section four or ten of this article had been determined based on the qualified investment property which remains in service using the average number of new jobs filled by employees in the taxable year for which recapture occurs. The amount of tax due under this subdivision is an amount equal to the amount of credit that is recaptured under this subdivision.

(3) Additional recapture. -- If after a partial recapture under subdivision (2) of this subsection, the taxpayer further reduces the number of employees filling new jobs, the taxpayer shall recapture an additional amount determined as provided under subdivision (1) of this subsection. The amount of tax due under this subdivision is an amount equal to the amount of credit that is recaptured under this subdivision.

(c) Recapture of credit allowed for projects. -- The commissioner may file in the West Virginia register an emergency legislative rule explaining how the provisions of this section are applied in the case of projects certified under section six of this article.

(d) Payment of recapture tax. -- The amount of tax recaptured under this section is due and payable on the day the person's annual return is due for the taxable year in which this section applies, under article twenty-one or twenty-four of this chapter. When the employer is a partnership, limited liability company or S corporation for federal income tax purposes, the recapture tax shall be paid by those persons who are partners in the partnership, members in the company, or shareholders in the S corporation, in the taxable year in which recapture occurs under this section.

(e) Rules. -- The commissioner may promulgate such rules as may be useful or necessary to carry out the purpose of this section and to implement the intent of the Legislature. Rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§11-13Q-13. Transfer of qualified investment to successors.

(a) Mere change in form of business. -- Property may not be treated as disposed of under section eleven of this article, by reason of a mere change in the form of conducting the business as long as the property is retained in the successor business in this state, and the transferor business retains a controlling interest in the successor business. In this event, the successor business is allowed to claim the amount of credit still available with respect to the business facility or facilities transferred, and the transferor business may not be required to redetermine the amount of credit allowed in earlier years.

(b) Transfer or sale to successor. -- Property is not treated as disposed of under section eleven of this article by reason of any transfer or sale to a successor business which continues to operate the business facility in this state. Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this article for each subsequent taxable year and the transferor business is not required to redetermine the amount of credit allowed in earlier years.

§11-13Q-14. Identification of investment credit property.

Every taxpayer who claims credit under this article shall maintain sufficient records to establish the following facts for each item of qualified property:

(1) Its identity;

(2) Its actual or reasonably determined cost;

(3) Its straight-line depreciation life;

(4) The month and taxable year in which it was placed in service;

(5) The amount of credit taken; and

(6) The date it was disposed of or otherwise ceased to be qualified property.

§11-13Q-15. Failure to keep records of investment credit property.

A taxpayer who does not keep the records required for identification of investment credit property is subject to the following rules:

(1) A taxpayer is treated as having disposed of, during the taxable year, any investment credit property which the taxpayer cannot establish was still on hand, in this state, at the end of that year.

(2) If a taxpayer cannot establish when investment credit property reported for purposes of claiming this credit returned during the taxable year was placed in service, the taxpayer is treated as having placed it in service in the most recent prior year in which similar property was placed in service, unless the taxpayer can establish that the property placed in service in the most recent year is still on hand. In that event, the taxpayer will be treated as having placed the returned property in service in the next most recent year.

§11-13Q-16. Interpretation and construction.

(a) No inference, implication or presumption of legislative construction or intent may be drawn or made by reason of the location or grouping of any particular section, provision or portion of this article; and no legal effect may be given to any descriptive matter or heading relating to any section, subsection or paragraph of this article.

(b) The provisions of this article shall be reasonably construed in order to effectuate the legislative intent recited in section two of this article.

§11-13Q-17. Severability.

(a) If any provision of this article or the application thereof is for any reason adjudged by any court of competent jurisdiction to be invalid, the judgment may not affect, impair or invalidate the remainder of the article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which the judgment shall have been rendered, and the applicability of the provision to other persons or circumstances may not be affected thereby.

(b) If any provision of this article or the application thereof is made invalid or inapplicable by reason of the repeal or any other invalidation of any statute therein addressed or referred to, such invalidation or inapplicability may not affect, impair or invalidate the remainder of the article, but shall be confined in its operation to the provision thereof directly involved with, pertaining to, addressing or referring to the statute, and the application of the provision with regard to other statutes or in other instances not affected by any such repealed or invalid statute may not be abrogated or diminished in any way.

§11-13Q-18. Burden of proof; application required; failure to make timely application.

(a) The burden of proof is on the taxpayer to establish by clear and convincing evidence that the taxpayer is entitled to the benefits allowed by this article.

(b) Application for credit required. --

(1) Application required. -- Notwithstanding any provision of this article to the contrary, no credit is allowed or may be applied under this article for any qualified investment property placed in service or use until the person asserting a claim for the allowance of credit under this article makes written application to the commissioner for allowance of credit as provided in this subsection. An application for credit shall be filed, in the form prescribed by the Tax Commissioner, no later than the last day for filing the tax returns, determined by including any authorized extension of time for filing the return, required under article twenty-one or twenty-four of this chapter for the taxable year in which the property to which the credit relates is placed in service or use and all information required by the form shall be provided.

(2) Failure to make timely application. -- The failure to timely apply for the credit results in the forfeiture of fifty percent of the annual credit allowance otherwise allowable under this article. This penalty applies annually until the application is filed.

§11-13Q-19. Business eligible for credit entitlements.

(a) Notwithstanding any other provision of this article to the contrary, except as provided in section five of this article, no entitlement to the economic opportunity tax credit may result from, and no credit is available to any taxpayer for, investment placed in service or use except for taxpayers engaged in the following industries or business activities:

(1) Manufacturing, including, but not limited to, chemical processing and chemical manufacturing, manufacture of wood products and forestry products, manufacture of aluminum, manufacture of paper, paper processing, recyclable paper processing, food processing, commercial hydroponic growing of food crops, manufacture of aircraft or aircraft parts, manufacture of automobiles or automobile parts, and all other manufacturing activities, but not timbering or timber severance or timber hauling, or mineral severance, hauling, processing or preparation, or coal severance, hauling, processing or preparation or synthetic fuel manufacturing taxable under section two-f, article thirteen of this chapter;

(2) Information processing, including, but not limited to, telemarketing, information processing, systems engineering, back office operations and software development;

(3) The activity of warehousing, including, but not limited to, commercial warehousing and the operation of regional distribution centers by manufacturers, wholesalers or retailers;

(4) The activity of goods distribution (exclusive of retail trade);

(5) Destination-oriented recreation and tourism; and

(6) Research and development, as defined in section three of this article.

(b) Notwithstanding the fact that a company, entity or taxpayer is engaged in an industry or business activity enumerated in subsection (a) of this section, the company, entity or taxpayer must qualify for the economic opportunity tax credit by fulfilling the qualified investment, jobs creation and other credit entitlement requirements of this article in order to obtain entitlement to any credit under this article. Failure to fulfill the statutory requirements of this article results in a partial or complete loss of the tax credit.

§11-13Q-20. Tax credit review and accountability.

(a) Beginning on February 1, 2006, and every third year thereafter, the commissioner shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a tax credit review and accountability report evaluating the cost effectiveness of the economic opportunity credit during the most recent three-year period for which information is available. The criteria to be evaluated shall include, but not be limited to, for each year of the three-year period:

(1) The numbers of taxpayers claiming the credit;

(2) The net number of new jobs created by all taxpayers claiming the credit;

(3) The cost of the credit;

(4) The cost of the credit per new job created; and

(5) Comparison of employment trends for an industry and for taxpayers within the industry that claim the credit.

(b) Taxpayers claiming the credit shall provide any information the Tax Commissioner may require to prepare the report: Provided, That the information provided is subject to the confidentiality and disclosure provisions of sections five-d and five-s, article ten of this chapter.

(c) On or before February 1, 2013, the Department of Commerce, in consultation with the Tax Commissioner, the Department of Transportation and the Department of Environmental Protection shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a report of the impact of all the tax credits and other economic incentives provided in the act of the Legislature which amended and reenacted this section during 2011 upon economic development in this state, including but not limited to the creation of jobs in this state, upon the state's infrastructure, including but not limited to the need for construction or maintenance of the roads and highways of the state, upon the natural resources of the state, and upon public and private property interests in the state.

§11-13Q-21. Effective date; election; notice of claim or election under transition rules.

(a) The credit allowed by this article is allowed for qualified investment placed in service or use on or after January 1, 2003, subject to the rules contained in this section.

(b) Election. -- Notwithstanding the general rule stated in subsection (a), the taxpayer may elect to apply the credit allowed under article thirteen-c of this chapter in lieu of the credit allowed by this article to property purchased or leased for business expansion that is placed in service or use on or after January 1, 2003, if the property qualifies for credit under the transition rules set forth in subdivision (2), subsection (c), section sixteen, article thirteen-c of this chapter.

(c) Notice of election required. –- Any person intending to make the election allowed in subsection (b) of this section shall file written notice of his or her intention with the Tax Commissioner on or before December 31, 2002. In the case of a multiparticipant project, this notice may be filed by the managing project participant on behalf of all participants in the project. The notice shall be in a form prescribed by the Tax Commissioner and all information required by the form shall be provided.

(d) Failure to file notice. -- If any person fails to timely file the notice required by subsection (c) of this section, that person is precluded from claiming credit under article thirteen-c of this chapter for property placed in service or use after December 31, 2002, and may claim credit under this article to the extent the credit is allowable under this article. For purposes of this section, notice, in proper and complete form, timely filed under section sixteen, article thirteen-c of this chapter fulfills the filing requirement of this section if that filing addresses the same qualified investment for which notice would be required under this section.

§11-13Q-22. Credit available for taxpayers which do not satisfy the new jobs percentage requirement.

(a) Notwithstanding any provision of this article to the contrary, a taxpayer engaged in one or more of the industries or business activities specified in §11-13Q-19 of this code which does not satisfy the new jobs percentage requirement prescribed in §11-13Q-9(c) of this code but which otherwise fulfills the requirements prescribed in this article, is permitted to claim a credit against the taxes specified in §11-13Q-7 of this code in the order so specified that are attributable to and the consequence of the taxpayer’s business operations in this state which result in the creation of net new jobs. Credit under this section is allowed in the amount of $3,000 per year, per new job created and filled by a new employee, as those terms are defined in §11-13Q-3 of this code for a period of five consecutive years beginning in the tax year when the new employee is first hired. In no case may the number of new employees determined for purposes of this section exceed the total net increase in the taxpayer’s employment in this state. Credit allowed under this section shall be allowed beginning in the tax year when the new employee is first hired: Provided, That each new job:

(1) Pays at least $32,000 annually. Beginning January 1, 2010, and on January 1 of each year thereafter, the commissioner shall prescribe an amount that shall apply in lieu of the $32,000 amount during that calendar year. This amount is prescribed by increasing the $32,000 figure by the cost-of-living adjustment for that calendar year;

(2) Provides health insurance and may offer benefits including child care, retirement or other benefits; and

(3) Is a full-time, permanent position, as those terms are defined in section three of this article.

(b) Jobs that pay less than $32,000 annually, or less than the amount prescribed by the commissioner pursuant to subdivision (1) of subsection (a) of this section, whichever is higher, or that pay that salary but do not also provide benefits in addition to the salary do not qualify for the credit authorized by this section. Jobs that are less than full-time, permanent positions do not qualify for the credit authorized by this section.

The employer having obtained entitlement to the credit shall not be required to raise wages of employees currently employed in jobs upon which the initial credit was based by reason of the cost-of-living adjustment.

(c) For purposes of this section, the following definitions apply:

(1) Cost-of-living adjustment. — For purposes of subsection (a) of this section, the cost-of-living adjustment for any calendar year is the percentage (if any) by which the consumer price index for the preceding calendar year exceeds the consumer price index for the calendar year 2009.

(2) Consumer price index for any calendar year. — For purposes of subdivision (1) subsection (a) of this section, the consumer price index for any calendar year is the average of the federal consumer price index as of the close of the twelve-month period ending on August 31 of that calendar year.

(3) Consumer price index. — For purposes of subdivision (2) of this subsection, the term “federal consumer price index” means the most recent consumer price index for all urban consumers published by the United States Department of Labor.

(4) Rounding. — If any increase under subdivision (1) of this subsection is not a multiple of $50, the increase shall be rounded to the next lowest multiple of $50.

(d) Unused credit remaining in any tax year after application against the taxes specified in section seven of this article is forfeited and does not carry forward to any succeeding tax year and does not carry back to a prior tax year.

(e) The tax credit authorized by this section may be taken in addition to any credits allowable under §11-13C-1 et seq., §11-13D-1 et seq., §11-13E-1 et seq., §11-13F-1 et seq., §11-13G-1 et seq., §11-13J-1 et seq., §11-13R-1 et seq., or §11-13S-1 et seq. of this code. However, any taxpayer that is taking, or that has taken, any credit against tax authorized under this article may not take the credit authorized under any other provision of this code for the same qualified investment on which credit allowed by this article was taken.

(f) Reduction in number of employees credit forfeiture. — If, during the year when a new job was created for which credit was granted under this section or during any of the next succeeding four tax years thereafter, net jobs that are attributable to and the consequence of the taxpayer’s business operations in this state decrease, counting both new jobs for which credit was granted under this section and preexisting jobs, then the total amount of credit to which the taxpayer is entitled under this section shall be decreased and forfeited in the amount of $3,000 for each net job loss.

(g) Amendments to this section enacted during the 2021 regular session of the Legislature shall be effective for tax years beginning on or after January 1, 2022.

§11-13R-1. Short title.

This article may be cited as the "West Virginia Strategic Research and Development Tax Credit Act".

§11-13R-2. Legislative finding and purpose.

The Legislature finds that the encouragement of research and development in this state is in the public interest and promotes economic growth and development and the general welfare of the people of this state. In order to encourage research and development in this state and thereby increase employment and economic development, there is hereby provided a strategic research and development tax credit.

§11-13R-3. Definitions.

(a) General. -- When used in this article or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section unless a different meaning is clearly required by either the context in which the term is used or by specific definition in this article.

(b) Terms defined. --

(1) "Base amount" means:

(A) The average annual combined qualified research and development expenditure for the three taxable years immediately preceding the taxable year for which a credit is claimed under this article;

(B) For a taxpayer that has filed a tax return under article twenty-three of this chapter for fewer than three but at least one prior taxable year, determined on the basis of all filings by the taxpayer's controlled group, the base amount is the average annual combined qualified research and development expenditure for the number of immediately preceding taxable years, other than short taxable years, during which the taxpayer has filed a tax return under article twenty-three of this chapter; or

(C) For a taxpayer that has not filed a tax return under article twenty-three of this chapter for at least one taxable year, determined on the basis of all filings by the taxpayer's controlled group, the base amount is zero.

(2) "Commissioner" and "Tax Commissioner" are used interchangeably herein and mean the Tax Commissioner of the State of West Virginia or his or her delegate.

(3) "Controlled group" means a controlled group as defined by section 1563 of the Internal Revenue Code of 1986, as amended.

(4) "Corporation" means any corporation, limited liability company, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.

(5) "Delegate" in the phrase "or his or her delegate," when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Division of the Department of Tax and Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

(6) "Eligible taxpayer" means any person that is subject to the tax imposed by article twenty-three or article twenty-four of this chapter that is engaged in qualified research and development that has paid or incurred investment in qualified research and development credit property or that has paid or incurred qualified research and development expenses as defined in section four of this article. In the case of a sole proprietorship subject to neither the tax imposed by article twenty-three nor the tax imposed by article twenty-four, the term "eligible taxpayer" means any sole proprietor who is subject to the tax imposed by article twenty-one of this chapter and who is engaged in qualified research and development that has paid or incurred investment in qualified research and development credit property or that has paid or incurred qualified research and development expenses as defined in section four of this article.

(7) "Partnership" includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust or estate, a corporation or a sole proprietorship. The term "partner" includes a member in such a syndicate, group, pool, joint venture or other organization.

(8) "Person" includes any natural person, corporation, limited liability company or partnership.

(9) "Qualified research and development credit property" means depreciable property purchased for the conduct of qualified research and development.

(10) "Research and development" means systematic scientific, engineering or technological study and investigation in a field of knowledge in the physical, computer or software sciences often involving the formulation of hypotheses and experimentation for the purpose of revealing new facts, theories or principles or increasing scientific knowledge which may reveal the basis for new or enhanced products, equipment or manufacturing processes.

(A) Research and development includes, but is not limited to, design, refinement and testing of prototypes of new or improved products or equipment or the design, refinement and testing of manufacturing processes before commercial sales relating thereto have begun. For purposes of this section, commercial sales includes, but is not limited to, sales of prototypes or sales for market testing.

(B) Research and development does not include:

(i) Market research;

(ii) Sales research;

(iii) Efficiency surveys;

(iv) Consumer surveys;

(v) Product market testing;

(vi) Product testing by product consumers or through consumer surveys for evaluation of consumer product performance or consumer product usability;

(vii) The ordinary testing or inspection of materials or products for quality control;

(viii) Management studies;

(ix) Advertising;

(x) Promotions;

(xi) The acquisition of another's patent, model, production or process or investigation or evaluation of the value or investment potential related thereto;

(xii) Research in connection with literary, historical or similar activities;

(xiii) Research in the social sciences, economics, humanities or psychology and other nontechnical activities; and

(xiv) The providing of sales services or any other service, whether technical service or nontechnical service.

(11) "Related person" means:

(A) A corporation, limited liability company, partnership, association or trust controlled by the taxpayer;

(B) An individual, corporation, limited liability company, partnership, association or trust that is in control of the taxpayer;

(C) A corporation, limited liability company, partnership, association or trust controlled by an individual, corporation, partnership, association or trust that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer.

For purposes of this article, "control", with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation entitled to vote. "Control", with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust is determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the United States Internal Revenue Code of 1986, as amended, other than paragraph (3) of that section. (12) "Taxpayer" means any person subject to the tax imposed by article twenty-three or twenty-four of this chapter or both. In the case of a sole proprietorship subject to neither the tax imposed by article twenty-three nor the tax imposed by article twenty-four, the term "taxpayer" means any sole proprietor who is subject to the tax imposed by article twenty-one of this chapter. (13) "This code" means the Code of West Virginia, 1931, as amended.

(14) "This state" means the State of West Virginia.

§11-13R-4. Annual combined qualified research and development expenditure, qualified research and development expenses.

(a) General. -- The annual combined qualified research and development expenditure is the sum of the applicable percentage of the cost of depreciable property purchased for the conduct of a qualified research and development activity, which is placed in service or use in this state during the taxable year, plus the amount of qualified research and development expenses (as defined in this section) deducted by the eligible taxpayer, for federal income tax purposes for the taxable year.

(b) Applicable percentage of the cost of depreciable property. -- For the purpose of subsection (a), the applicable percentage of the cost of depreciable property is determined under the following table:

If useful life is: The applicable percentage is:

Less than 4 years 33 1/3

4 years or more but less than 6 years 66 2/3

6 years or more 100

The useful life of any property for purposes of this section is determined by those methods as the Tax Commissioner may require as of the date the property is first placed in service or use in this state by the taxpayer.

(c) Placed in service or use. -- For purposes of the credit allowed by this article, property is considered placed in service or use in the earlier of the following taxable years:

(1) The taxable year in which, under the taxpayer's depreciation practice, the period for depreciation with respect to the property begins; or

(2) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.

(d) Cost of property. -- For purposes of subsection (a) of this section, the cost of each property purchased for the conduct of a qualified research and development activity is determined under the following rules:

(1) Trade-ins. -- Cost does not include the value of property given in trade or exchange for the property purchased for conduct of the research and development activity.

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property does not include any insurance proceeds received in compensation for the loss.

(3) Rental property. -- The cost of property acquired by lease for a term of ten years or longer shall be one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years.

(4) Property purchased for multiple use. -- The cost of property purchased for multiple business use, including direct use in the conduct of a qualified research and development activity, together with some other business or activity not eligible under this section, shall be apportioned between such activities. The amount apportioned to the conduct of the qualified research and development activity is considered to be eligible investment subject to the conditions and limitations of this section.

(5) Self-constructed property. -- In the case of self-constructed property, the cost thereof is the amount properly charged to the capital account for depreciation in accordance with federal income tax law.

(e) Qualified research and development expenses. -- For purposes of this section:

(1) "Qualified research and development expenses" means the sum of in-house and contract research and development expenses for qualified research and development allocated to this state, which are paid or incurred by the eligible taxpayer during the taxable year. In no event does "qualified research and development expenses" include:

(A) Any expense that must be capitalized and depreciated for federal income tax purposes, or any expenditure paid or incurred for the purpose of ascertaining the existence, location, extent or quality of any deposit of coal, limestone or other natural resource, including oil and natural gas; or

(B) Any wage or salary expense for wages or salary reported on form W-2 for federal income tax purposes on which the personal income tax is imposed under article twenty-one of this chapter, and against which tax the credit allowed under this article is applied.

(2) "In-house research and development expenses" means:

(A) Wages paid or incurred to an employee for qualified services performed in this state by the employee;

(B) Amounts paid or incurred for supplies used in the conduct of qualified research and development in this state; or

(C) Amounts paid or incurred to another person for the right to use personal property in the conduct of qualified research and development in this state.

(3) "Qualified services" means services consisting of:

(A) Engaging in qualified research and development;

(B) Engaging in the direct supervision or direct support of qualified research and development; or

(C) If substantially all of the services performed by an individual for the taxpayer during the taxable year consist of services meeting the requirements of paragraph (A) or (B) of this subdivision, the term "qualified services" means all services performed by the individual for the taxable year.

(4) "Supplies" means any tangible property other than:

(A) Land or improvements to land; or

(B) Property of a character subject to depreciation for federal income tax purposes.

(5) "Wages" has the meaning given to that term by section 3401(a) of the Internal Revenue Code of 1986, as amended. In the case of self-employed individuals and owner-employees (within the meaning of section 401(c)(1) of the Internal Revenue Code), the term "wages" includes the earned income (as defined in section 401(c)(2) of the Internal Revenue Code) of the employee. The term "wages" shall not include any amount taken into account in determining the federal targeted jobs credit under section 51(a) of the Internal Revenue Code.

(6) "Contract research and development expenses" means:

(A) In general, sixty-five percent of any amount paid or incurred by the taxpayer to any person (other than an employee of the taxpayer) for qualified research and development; and

(B) If any contract research and development expenses paid or incurred during any taxable year are attributable to qualified research and development to be conducted after the close of the taxable year, that amount is treated as paid or incurred during the taxable year during which the qualified research and development is conducted.

(7) "Qualified research and development" means research and development that occurs in West Virginia.

(8) Excluded property. -- Any property owned or leased by the taxpayer, the cost of which was the basis of a credit against tax taken under any other article of this chapter, does not qualify as property purchased for the conduct of a qualified research and development activity for purposes of this article.

(9) Excluded expense. -- Any expense paid or incurred by the taxpayer, which was the basis of a credit against tax taken under any other article of this chapter, does not qualify as a qualified research and development expense for purposes of this article.

(f) Research and development by colleges, universities and certain research and development organizations. -- In general, sixty-five percent of the amount paid or incurred by a taxpayer to a research institution as defined in this section for research and development to be performed by the research institution is treated as contract research and development expenses. The preceding sentence applies only if the amount is paid or incurred pursuant to a written research and development agreement between the taxpayer and the research institution.

For purposes of this section, the term "research institution" means any nonprofit educational organization which is an institution of higher education (as defined in section 3304(f) of the Internal Revenue Code of 1986, as amended), a West Virginia institution of higher education subject to the jurisdiction of a board described in article two-a, chapter eighteen-b of this code, or any other nonprofit organization exempt from federal income taxes which is organized and operated primarily to conduct scientific research and is not a private foundation for federal income tax purposes.

(g) Standards for determining qualified research and development expenses. -- In prescribing standards for determining which research and development expenses are considered to be qualified research and development expenses for purposes of this section, the Tax Commissioner may consider: (1) The place where the services are performed; (2) the residence or business location of the person or persons performing the services; (3) the place where research and development supplies are consumed; and (4) other factors that the Tax Commissioner believes relevant in determining whether or not the research and development expenses were made for qualified research and development, and depreciable property was purchased and used for qualified research and development, during the taxable year.

(h) Depreciable property. -- Purchases of depreciable property for the conduct of qualified research qualify as part of the annual combined qualified research and development expenditure for purposes of this article only if:

(1) The property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under section 267 or 707(b) of the United States Internal Revenue Code of 1986, as amended;

(2) The property is not acquired from a related person or by one component member of a controlled group from another component member of the same controlled group. The Tax Commissioner may waive this requirement if the property was acquired from a related party for its then fair market value; and

(3) The basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined:

(A) In whole or in part by reference to the federal adjusted basis of such property in the hands of the person from whom it was acquired; or

(B) Under section 1014(e) of the United States Internal Revenue Code of 1986, as amended.

§11-13R-5. Amount of credit allowed.

The allowable credit is the greater of:

(1) Three percent of the annual combined qualified research and development expenditure; or

(2) Ten percent of the excess of the annual combined qualified research and development expenditure over the base amount.

§11-13R-6. Application of credit.

(a) Credit allowed. -- Beginning in the year that the annual combined qualified research and development expenditure is paid or incurred, eligible taxpayers and owners of eligible taxpayers described in subsections (d) and (f) of this section are allowed a credit against the taxes imposed by articles twenty-three, twenty-four and twenty-one of this chapter, in that order, as specified in this section.

(b) Business franchise tax. -- The credit is first applied to reduce the taxes imposed by article twenty-three of this chapter for the taxable year, determined after application of the credits against tax provided in section seventeen of said article, but before application of any other allowable credits against tax.

(c) Corporation net income taxes. -- After application of subsection (b) of this section, any unused credit is next applied to reduce the taxes imposed by article twenty-four of this chapter for the taxable year, determined before application of allowable credits against tax.

(d) If the eligible taxpayer is a limited liability company, small business corporation or a partnership, then any unused credit after application of subsections (b) and (c) of this section is allowed as a credit against the taxes imposed by article twenty-four of this chapter on owners of the eligible taxpayer on the conduit income directly derived from the eligible taxpayer by its owners. Only those portions of the tax imposed by article twenty-four of this chapter that are imposed on income directly derived by the owner from the eligible taxpayer are subject to offset by this credit.

(1) Small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate the credit allowed by this article among their members in the same manner as profits and losses are allocated for the taxable year.

(2) No credit is allowed under this article against any withholding tax imposed by, or payable under, article twenty-one of this chapter.

(e) Personal income tax taxes. -- After application of subsections (b), (c) and (d) of this section, any unused credit is next applied to reduce the taxes imposed by article twenty-one of this chapter for the taxable year determined before application of allowable credits against tax of the eligible taxpayer.

(f) If the eligible taxpayer is a limited liability company, small business corporation or a partnership, then any unused credit after application of subsections (b), (c), (d) and (e) of this section is allowed as a credit against the taxes imposed by article twenty-one of this chapter on owners of the eligible taxpayer on the conduit income directly derived from the eligible taxpayer by its owners. Only those portions of the tax imposed by article twenty-one of this chapter that are imposed on income directly derived by the owner from the eligible taxpayer are subject to offset by this credit.

(1) Small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate the credit allowed by this article among their members in the same manner as profits and losses are allocated for the taxable year.

(2) No credit is allowed under this article against any withholding tax imposed by, or payable under, article twenty-one of this chapter.

(g) The total amount of tax credit that may be used in any taxable year by any eligible taxpayer in combination with the owners of the eligible taxpayer under subsections (d) and (f) of this section, and including any refundable credit claimed under subsection (i) of this section, may not exceed $2 million.

(h) Unused credit carry forward. –– Except to the extent excess credit is refunded as provided in subsection (i) of this section, if the credit allowed under this article in any taxable year exceeds the sum of the taxes enumerated in subsections (b), (c), (d), (e) and (f) of this section for that taxable year, the eligible taxpayer and owners of eligible taxpayers described in subsections (d) and (f) of this section may apply the excess as a credit against those taxes, in the order and manner stated in this section, for succeeding taxable years until the earlier of the following:

(1) The full amount of the excess credit is used; or

(2) The expiration of the tenth taxable year after the taxable year in which the annual combined qualified research and development expenditure was paid or incurred. Credit remaining thereafter is forfeited.

(i) Refundable credit for "small qualified research and development company". –– If the eligible taxpayer, including the controlled group, if a member of a controlled group, has gross revenues of not more than $20 million and a payroll of not more than $2,500,000, and the credit allowed under this article in any taxable year exceeds the sum of taxes enumerated in subsections (b), (c), (d), (e) and (f) of this section for that taxable year, the eligible taxpayer and owners of the eligible taxpayers described in subsections (d) and (f) of this section may claim for that year the excess amount as a refundable credit, not to exceed $100,000 per taxpayer, including owners and the controlled group, if applicable: Provided, That not more than $1 million of the unused credits described in this subsection may be approved for refundable credit by the Tax Commissioner during any fiscal year. Priority for approval of refundable credit is determined based on the filing date of the claim for refund with earlier claims having priority over later claims.

(j) Application for certification. -- No credit is allowed or may be applied under this article until the person seeking to claim the credit has filed a written application for certification of the proposed research and development program or project with the Tax Commissioner and has received certification of the research and development program or project from the Tax Commissioner pursuant to that written application. The certification of the program or project must be received by the eligible taxpayer from the Tax Commissioner prior to any credit being claimed or allowed for any annual combined qualified research and development expenditure for any research activity or project. This application shall be filed, in the form prescribed by the Tax Commissioner, no later than the last day for filing the tax returns, determined by including any authorized extension of time for filing the return, required under article twenty-one or twenty-four of this chapter for the taxable year in which the property to which the credit relates is placed in service or use, or the qualified research and development expenses to which the credit relates are incurred by the taxpayer, and all information required by the form shall be provided by the taxpayer.

(1) In the case of owners of eligible taxpayers described in subsection (d) or (f) of this section, the application for certification filed under this section by the limited liability company, small business corporation or partnership owned by the person is considered to be filed on behalf of the owner and no separate filing of the application is required of the owner.

(2) Form of application. -- The application for certification must be filed in the form as the Tax Commissioner prescribes and shall contain the information as the Tax Commissioner requires to determine whether the project should be certified as eligible for credit under this article.

(3) Time period covered by certification. -- The application may request certification of the research and development program for one taxable year or multiple taxable years, as applicable, based on the nature and character of the program or project plan for the particular research and development project or activity.

(4) Requirements for application. -- The application shall specifically set forth a written research and development program plan generally describing the nature of the research and development to be undertaken, the number and types of jobs, if any, created by the applicant as a direct result of the research and development program and the average wages and benefits paid to those employees, the projected time period over which the research and development shall be carried out, the period of time for which the applicant seeks certification of the program or project and other information as the Tax Commissioner requires.

(5) Certification. -- The Tax Commissioner may issue certification of a research and development program or project if it appears to the Tax Commissioner that the applicant intends to engage in a bona fide research and development activity, as described in this article, and will otherwise comply with the requirements of this article and all rules and requirements applicable thereto.

(6) Time period covered by certification. -- The Tax Commissioner may issue certification for the period of time for which the eligible taxpayer seeks certification or a different period of time, within the discretion of the Tax Commissioner. In his or her discretion, the Tax Commissioner may require that a separate application be filed for each tax year in which qualified research and development activity is to be undertaken or in which qualified research and development property is to be placed in service or use.

(7) Failure to file. -- The failure to timely file the application for certification of a research and development program or project under this section results in forfeiture of one hundred percent of the annual credit otherwise allowable under this article. This penalty applies annually until the application is filed.

(8) Research and development undertaken without certification. -- If a person has filed an application for certification of a research and development program or project and has failed to receive certification of the plan or program from the Tax Commissioner, no credit is allowed under this article for the research and development activity or investment relating thereto.

(9) Failure to comply with terms of certification. -- If a person has filed an application for certification of a research and development program or project and has received certification of the plan or program from the Tax Commissioner, but fails to conform to the terms of the certification, no credit is allowed under this article for the research and development activity or for investment in the research and development activity by the eligible taxpayer. This restriction may be waived by the Tax Commissioner upon a finding that the research and development undertaken was within the requirements of this article and that there was no intent to defraud the state or willful neglect in the applicant's failure to conform to the terms of the certification.

(10) Failure to comply with certification time restrictions. -- If a person has filed an application for certification of a research and development program or project and has received certification of the plan or program from the Tax Commissioner, but fails to conform to the time periods specified therein for the certified research and development program or project, or fails to renew the certification so as to cover ongoing or subsequent research and development activity, the research and development activity is out of compliance with the terms of the certification and no credit is allowed under this article for, or relating to, the research and development activity by any person or taxpayer. This restriction may be waived by the Tax Commissioner upon a finding that the research and development thus undertaken was within the requirements of this article and that there was no intent to defraud the state or willful neglect in the applicant's failure to conform to the terms of the certification.

§11-13R-7. Forfeiture of unused tax credits; redetermination of credit allowed.

(a) Disposition of property or cessation of use. -- If during any taxable year, property with respect to which a tax credit has been allowed under this article:

(1) Is disposed of prior to the end of its useful life, as determined under section four of this article; or

(2) Ceases to be used in a qualified research and development activity of the taxpayer in this state prior to the end of its useful life, as determined under section four of this article, then the unused portion of the credit allowed for such property is forfeited for the taxable year and all ensuing years. Except when the property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, the taxpayer shall redetermine the amount of credit allowed in all earlier years by reducing the applicable percentage of cost of such property allowed under section four of this article, to correspond with the percentage of cost allowable for the period of time that the property was actually used in the qualified research and development activity of the taxpayer. The taxpayer shall then file a reconciliation statement with its annual return filed under article twenty-three of this chapter, for the year in which the forfeiture occurs and pay any additional taxes owed due to reduction of the amount of credit allowable for such earlier years, plus interest and any applicable penalties.

§11-13R-8. Transfer of qualified research and development investment to successors.

(a) Mere change in form of business. -- Property may not be treated as disposed of under section seven of this article, by reason of a mere change in the form of conducting the business as long as the property is retained in a business in this state for use in qualified research and development, and the taxpayer retains a controlling interest in the successor business. In this event, the successor business is allowed to claim the amount of credit still available with respect to the property transferred, and the taxpayer (transferor) may not be required to redetermine the amount of credit allowed in earlier years.

(b) Transfer or sale to successor. -- Property may not be treated as disposed of under section seven of this article by reason of any transfer or sale to a successor business which continues to use the property in qualified research and development. Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this article for each subsequent taxable year, and the taxpayer (transferor) may not be required to redetermine the amount of credit allowed in earlier years.

§11-13R-9. Identification of investment credit property.

(a) Every taxpayer who claims credit under this article shall maintain sufficient records to establish the following facts for each item of qualified research and development property:

(1) Its identity;

(2) Its actual or reasonably determined cost;

(3) Its straight-line depreciation life;

(4) The month and taxable year in which it was placed in service;

(5) The amount of credit taken; and

(6) The date it was disposed of or otherwise ceased to be qualified research and development property.

(b) Every taxpayer who claims credit under this article shall also maintain sufficient records to establish the number and types of new jobs, if any, created, the wages and benefits paid to employees filling the new jobs and the duration of each job.

§11-13R-10. Failure to keep records of qualified research and development credit property.

A taxpayer who does not keep the records required for identification of qualified research and development credit property, is subject to the following rules:

(1) A taxpayer is treated as having disposed of, during the taxable year, any qualified research and development credit property which the taxpayer cannot establish was still on hand and used in qualified research and development activity at the end of that year.

(2) If a taxpayer cannot establish when qualified research and development credit property reported for purposes of claiming this credit returned during the taxable year was placed in service, the taxpayer is treated as having placed it in service in the most recent prior year in which similar property was placed in service, unless the taxpayer can establish that the property placed in service in the most recent year is still on hand and used in qualified research and development activity at the end of that year. In that event, the taxpayer will be treated as having placed the returned property in service in the next most recent year.

§11-13R-11. Tax credit review and accountability.

(a) Beginning on February 1, 2006, and on February 1 every third year thereafter, the commissioner shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a tax credit review and accountability report evaluating the cost effectiveness of the credit allowed under this article during the most recent three-year period for which information is available. The criteria to be evaluated includes, but is not limited to, for each year of the three-year period:

(1) The numbers of taxpayers claiming the credit;

(2) The net number, type and duration of new jobs created by all taxpayers claiming the credit and wages and benefits paid;

(3) The cost of the credit;

(4) The cost of the credit per new job created;

(5) Comparison of employment trends for the industry and for taxpayers within the industry that claim the credit; and

(6) The amount of excess credit refunded to small qualified research and development companies pursuant to subsection (i), section six of this article.

(b) Taxpayers claiming the credit shall provide information as the Tax Commissioner requires to prepare the report: Provided, That the information shall be subject to the confidentiality and disclosure provisions of sections five-d and five-s, article ten of this chapter.

§11-13R-12. Effective date.

The provisions of this article become effective on January 1, 2003, and apply only to qualified investment made on or after that date, except that the amendments to this article enacted in two thousand four shall become effective for taxable years beginning on or after July 1, 2004, and apply only to unused credit attributable to qualified investment made on or after that date and prior to January 1, 2008.

§11-13R-13. Expiration of tax credit.

The Strategic Research and Development Tax Credit Act terminates on January 1, 2014, and no credit is available to any taxpayer for any qualified investment or expenditure made on or after that date. Taxpayers which have gained entitlement to the credit pursuant to qualified investment or expenditure prior to January 1, 2014, retain that entitlement and may apply the credit pursuant to the requirements and limitations of this article.

§11-13S-1. Short title.

This article may be cited as the "West Virginia Manufacturing Investment Tax Credit Act".

§11-13S-2. Legislative findings and purpose.

The Legislature finds that the encouragement of the location of new industry in this state, and the expansion, growth and revitalization of existing industrial facilities in this state is in the public interest and promotes the general welfare of the people of this state.

§11-13S-3. Definitions.

(a) Any term used in this article has the meaning ascribed by this section unless a different meaning is clearly required by the context of its use or by definition in this article.

(b) For purpose of this article, the term:

(1) “Eligible taxpayer” means an industrial taxpayer who purchases new property for the purpose of industrial expansion or for the purpose of industrial revitalization of an existing industrial facility in this state.

(2) “Industrial expansion” means capital investment in a new or expanded industrial facility in this state.

(3) “Industrial facility” means any factory, mill, plant, refinery, warehouse, building, or complex of buildings located within this state, including the land on which it is located, and all machinery, equipment, and other real and tangible personal property located at or within the facility primarily used in connection with the operation of the manufacturing business.

(4) “Industrial revitalization” or “revitalization” means capital investment in an industrial facility located in this state to replace or modernize buildings, equipment, machinery, and other tangible personal property used in connection with the operation of the facility in an industrial business of the taxpayer including the acquisition of any real property necessary to the industrial revitalization.

(5) “Industrial taxpayer” means any taxpayer who is primarily engaged in a manufacturing business.

(6) “Manufacturing” means any business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number of 31, 32, or 33. For purposes of this article, manufacturing also includes the processing of raw natural gas or oil to recover or extract liquid hydrocarbons, which is classified under North American Industry Classification System code number 211130. This definition does not mean or include any other processes or activities classified, categorized, grouped, or identified under North American Industry Classification System code number 211130.

(7) “Property purchased for manufacturing investment” means real property, and improvements thereto, and tangible personal property but only if the property was constructed or purchased on or after January 1, 2003, for use as a component part of a new, expanded, or revitalized industrial facility. This term includes only that tangible personal property with respect to which depreciation, or amortization in lieu of depreciation, is allowable in determining the federal income tax liability of the industrial taxpayer, that has a useful life, at the time the property is placed in service or use in this state, of four years or more. Property acquired by written lease for a primary term of 10 years or longer, if used as a component part of a new or expanded industrial facility, is included within this definition.

(A) “Property purchased for manufacturing investment” does not include:

(i) Repair costs, including materials used in the repair, unless for federal income tax purposes, the cost of the repair must be capitalized and not expensed;

(ii) Motor vehicles licensed by the Division of Motor Vehicles;

(iii) Airplanes;

(iv) Off-premises transportation equipment;

(v) Property which is primarily used outside this state; and

(vi) Property which is acquired incident to the purchase of the stock or assets of an industrial taxpayer which property was or had been used by the seller in his or her industrial business in this state or in which investment was previously the basis of a credit against tax taken under any other article of this chapter.

(B) Purchases or acquisitions of land or depreciable property qualify as purchases of property purchased for manufacturing investment for purposes of this article only if:

(i) The property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under section 267 or 707(b) of the United States Internal Revenue Code of 1986, as defined in §11-21-1 et seq. and §11-24-1 et seq. of this code;

(ii) The property is not acquired from a related person or by one component member of a controlled group from another component member of the same controlled group. The Tax Commissioner may waive this requirement if the property was acquired from a related party for its then fair market value; and

(iii) The basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined, in whole or in part, by reference to the federal adjusted basis of the property in the hands of the person from whom it was acquired or under section 1014(e) of the United States Internal Revenue Code of 1986.

(8) “Qualified manufacturing investment” means that amount determined under §11-13S-5 of this code as qualified manufacturing investment.

(9) “Taxpayer” means any person subject to any of the taxes imposed by §11-13A-1 et seq., §11-21-1 et seq., or §11-24-1 et seq. of this code, or any combination of those articles of this chapter.

§11-13S-4. Amount of credit allowed for manufacturing investment.

(a) Credit allowed. — There is allowed to eligible taxpayers and to persons described in subdivision (4), subsection (b) of this section a credit against the taxes imposed by §11-13A- 1 et seq., and §11-24-1-1 et seq. of this code: Provided, That a tax credit for any eligible taxpayer operating a business activity classified as having a sector identifier, consisting of the six digit code number 211112 such eligible taxpayer must comply with the provisions of subsection (e) of this section for all construction related thereto in order to be eligible for any credit under this article. The amount of credit shall be determined as hereinafter provided in this section.

(b) Amount of credit allowable. — The amount of allowable credit under this article is equal to five percent of the qualified manufacturing investment (as determined in section five of this article): Provided, That the amount of allowable credit under this article is equal to 50 percent of the qualified manufacturing investment (as determined in §11-13S-5. of this code) for any eligible taxpayer operating a business that is or may be classified as having a sector identifier, consisting of the six-digit code number 332992 or 332994, as defined on January 1, 2021. This credit shall reduce the severance tax, imposed under §11-13A-1 et seq. of this code and the corporation net income tax imposed under §11-24-1 et seq. of this code, in that order, subject to the following conditions and limitations:

(1) The amount of credit allowable is applied over a 10-year period, at the rate of one-tenth thereof per taxable year, beginning with the taxable year in which the property purchased for manufacturing investment is first placed in service or use in this state;

(2) Severance tax. — The credit is applied to reduce the severance tax imposed under §11-13A-1 et seq. of this code (determined before application of the credit allowed by §11-12B-3 of this code and before any other allowable credits against tax and before application of the annual exemption allowed by §11-13A-10 of this code). The amount of annual credit allowed may not reduce the severance tax, imposed under §11-13A-1 et seq. of this code, below 50 percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed may not reduce the severance tax, imposed under §11-13A-1 et seq. of this code, below 40 percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and §11-13D-1 et seq. of this code, the total amount of all credits allowable for the taxable year may not reduce the amount of the severance tax, imposed under §11-13A-1 et seq. of this code, below 50 percent of the amount which would be imposed for such taxable year (determined before application of the credit allowed by §11-12B-3 of this code and before any other allowable credits against tax and before application of the annual exemption allowed by §11-13A-10 of this code): Provided, however, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and §11-13D-1 et seq. of this code, the total amount of all credits allowable for the taxable year may not reduce the amount of the severance tax imposed under §11-13A-1 et seq. of this code, below 40 percent of the amount which would be imposed for such taxable year as determined before application of the credit allowed by §11-12B-3 of this code and before any other allowable credits against tax and before application of the annual exemption allowed by §11-13A-10 of this code;

 (3) Corporation net income tax. —

After application of subdivision (2) of this subsection, any unused credit is next applied to reduce the corporation net income tax imposed under §11-24-1 et seq. of this code (determined before application of any other allowable credits against tax). The amount of annual credit allowed will not reduce corporation net income tax, imposed under §11-24-1 et seq. of this code, below 50 percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed will not reduce corporation net income tax, imposed under §11-24-1 et seq. of this code, below 40 percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and §11-13D-1 et seq. of this code, the total amount of all credits allowable for the taxable year may not reduce the amount of the corporation net income tax, imposed under §11-24-1 et seq. of this code, below 50 percent of the amount which would be imposed for the taxable year (determined before application of any other allowable credits against tax): Provided, however, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and §11-13D-1 et seq. of this code, the total amount of all credits allowable for the taxable year may not reduce the amount of the corporation net income tax, imposed under article §11-24-1 et seq. of this code, below 40 percent of the amount which would be imposed for the taxable year as determined before application of any other allowable credits against tax;

(4) Pass-through entities. —

(A) If the eligible taxpayer is a limited liability company, small business corporation or a partnership, then any unused credit (after application of subdivisions (2) and (3) of this subsection) is allowed as a credit against the taxes imposed by §11-24-1 et seq. of this code on owners of the eligible taxpayer on the conduit income directly derived from the eligible taxpayer by its owners. Only those portions of the tax imposed by §11-24-1 et seq. of this code that are imposed on income directly derived by the owner from the eligible taxpayer are subject to offset by this credit.

(B) The amount of annual credit allowed will not reduce corporation net income tax, imposed under §11-24-1 et seq. of this code, below 50 percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes (determined before application of any other allowable credits against tax): Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed will not reduce corporation net income tax, imposed under §11-24-1 et seq. of this code, below 40 percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes as determined before application of any other allowable credits against tax.

(C) When in any taxable year the taxpayer is entitled to claim credit under this article and §11-13D-1 et seq. of this code, the total amount of all credits allowable for the taxable year will not reduce the corporation net income tax imposed on the conduit income directly derived from the eligible taxpayer by each owner below 50 percent of the amount that would be imposed for such taxable year on the conduit income (determined before application of any other allowable credits against tax): Provided, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and §11-13D-1 et seq. of this code, the total amount of all credits allowable for the taxable year will not reduce the corporation net income tax imposed on the conduit income directly derived from the eligible taxpayer by each owner below 40 percent of the amount that would be imposed for such taxable year on the conduit income as determined before application of any other allowable credits against tax;

 (5) Small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate any unused credit after application of subdivisions (2) and (3) of this subsection among their members in the same manner as profits and losses are allocated for the taxable year; and

 (6) No credit is allowed under this article against any tax imposed by §11-21-1 et seq. of this code.

(c) No carryover to a subsequent taxable year or carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance. Any unused credit is forfeited.

(d) Application for credit required. —

(1) Application required. — Notwithstanding any provision of this article to the contrary, no credit is allowed or may be applied under this article for any qualified investment property placed in service or use until the person claiming the credit makes written application to the Tax Commissioner for allowance of credit as provided in this section. This application shall be in the form prescribed by the Tax Commissioner and shall provide the number and type of jobs created, if any, by the manufacturing investment, the average wage rates and benefits paid to employees filling the new jobs and any other information the Tax Commissioner may require. This application shall be filed with the Tax Commissioner no later than the last day for filing the annual return, determined by including any authorized extension of time for filing the return, required under §11-21-1 et seq. or §11-24-1-1 et seq. of this code for the taxable year in which the property to which the credit relates is placed in service or use.

(2) Failure to file. — The failure to timely apply the application for credit under this section results in forfeiture of 50 percent of the annual credit allowance otherwise allowable under this article. This penalty applies annually until the application is filed.

(e) (1) Any person or entity undertaking any construction related to any business activity included within North American Industrial Code six-digit code number 211112, the value of which is an amount equal to or greater than $500,000, shall hire at least 75 percent of employees for said construction from the local labor market, to be rounded off, with at least two employees from outside the local labor market permissible for each employer per project, “the local labor market” being defined as every county in West Virginia and any county outside of West Virginia if any portion of that county is within 50 miles of the border of West Virginia.

(2) Any person or entity unable to employ the minimum number of employees from the local labor market shall inform the nearest office of the Bureau of Employment Programs’ division of employment services of the number of qualified employees needed and provide a job description of the positions to be filled.

(3) If, within three business days following the placing of a job order, the division is unable to refer any qualified job applicants to the person or entity engaged in said construction or refers less qualified job applicants than the number requested, then the division shall issue a waiver to the person or entity engaged in said construction stating the unavailability of applicants and shall permit the person or entity engaged in said construction to fill any positions covered by the waiver from outside the local labor market. The waiver shall be either oral or in writing and shall be issued within the prescribed three days. A waiver certificate shall be sent to the person or entity engaged in said construction for its permanent project records.

§11-13S-5. Qualified manufacturing investment.

(a) General. -- The qualified manufacturing investment is the applicable percentage of the cost of property purchased for manufacturing investment, which is placed in service or use in this state, by the eligible taxpayer during the taxable year.

(b) Applicable percentage. -- For the purposes of subsection (a) of this section, the applicable percentage for any property is determined under the following table:

If useful life is: The applicable percentage is:

4 years or more but less than 6 years 33 1/3

6 years or more but less than 8 years 66 2/3

8 years or more 100

The useful life of any property for purposes of this section is determined pursuant to the methods as the Tax Commissioner may require as of the date the property is first placed in service or use in this state by the taxpayer, determined as the Tax Commissioner may require.

(c) Placed in service or use. -- For purposes of the credit allowed by this article, property is considered placed in service or use in the earlier of the following taxable years:

(1) The taxable year in which, under the taxpayer's depreciation practice, the period for depreciation with respect to the property begins; or

(2) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.

(d) Cost. -- For purposes of this section, the cost of property purchased for manufacturing investment, is determined under the following rules:

(1) Trade-ins. -- Cost will not include the value of property given in trade or exchange for property purchased for manufacturing investment;

(2) Damaged, destroyed or stolen property. -- If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property will not include any insurance proceeds received in compensation for the loss;

(3) Rental property. -– The cost of property acquired by lease for a term of ten years or longer is one hundred percent of the rent reserved for the primary term of the lease, not to exceed twenty years;

(4) Property purchased for multiple use. -- The cost of property purchased for multiple business use including use as a component part of a new or expanded or revitalized industrial facility, together with some other business or activity not eligible for credit under this article, is apportioned between the businesses and occupations. The amount apportioned to the new or expanded or revitalized industrial facility is considered as a qualified investment, subject to the conditions and limitations of this section; and

(5) Self-constructed property. -- In the case of self-constructed property, the cost thereof shall be the amount properly charged to the capital account for purposes of depreciation.

§11-13S-6. Forfeiture of unused tax credits; redetermination of credit allowed.

(a) Disposition of property or cessation of use. -- If during any taxable year, property with respect to which a tax credit has been allowed under this article:

(1) Is disposed of prior to the end of its useful life, as determined under section five of this article; or

(2) Ceases to be used in an industrial facility of the taxpayer in this state prior to the end of its useful life, as determined under section five of this article, then the unused portion of the credit allowed for such property is forfeited for the taxable year and all ensuing years. Except when the property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, the taxpayer shall redetermine the amount of credit allowed in all earlier years by reducing the applicable percentage of cost of the property allowed under section five of this article, to correspond with the percentage of cost allowable for the period of time that the property was actually used in manufacturing activity as part of an industrial facility of the taxpayer. The taxpayer must then file a reconciliation statement with its annual return filed under article twenty-three of this chapter, for the year in which the forfeiture occurs and pay any additional taxes owed due to reduction of the amount of credit allowable for the earlier years, plus interest and any applicable penalties.

§11-13S-7. Transfer of property purchased for manufacturing investment to successors.

(a) Mere change in form of business. -- Property may not be treated as disposed of under section six of this article, by reason of a mere change in the form of conducting the business as long as the property is retained in a business in this state for use in the activity of manufacturing in an industrial facility in West Virginia, and the taxpayer retains a controlling interest in the successor business. In this event, the successor business is allowed to claim the amount of credit still available with respect to the property or industrial facility transferred, and the taxpayer (transferor) may not be required to redetermine the amount of credit allowed in earlier years.

(b) Transfer or sale to successor. -- Property will not be treated as disposed of under section six of this article by reason of any transfer or sale to a successor business which continues to use the property in manufacturing in an industrial facility in West Virginia. Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this article for each subsequent taxable year, and the taxpayer (transferor) shall not be required to redetermine the amount of credit allowed in earlier years.

§11-13S-8. Identification of investment credit property.

(a) Every taxpayer who claims credit under this article shall maintain sufficient records to establish the following facts for each item of property purchased for manufacturing investment:

(1) Its identity;

(2) Its actual or reasonably determined cost;

(3) Its straight-line depreciation life;

(4) The month and taxable year in which it was placed in service;

(5) The amount of credit taken; and

(6) The date it was disposed of or otherwise ceased to be property purchased for manufacturing investment.

(b) Every taxpayer who claims credit under this article shall also maintain sufficient records to establish the number and types of new jobs, if any, created, the wages and benefits paid to employees filling the new jobs and the duration of each job.

§11-13S-9. Failure to keep records of property purchased for manufacturing investment.

A taxpayer who does not keep the records required for property purchased for manufacturing investment, is subject to the following rules:

(1) A taxpayer is treated as having disposed of, during the taxable year, any property purchased for manufacturing investment which the taxpayer cannot establish was still on hand and used in manufacturing activity in this state at the end of that year; and

(2) If a taxpayer cannot establish when property purchased for manufacturing investment reported for purposes of claiming this credit returned during the taxable year was placed in service, the taxpayer is treated as having placed it in service in the most recent prior year in which similar property was placed in service, unless the taxpayer can establish that the property placed in service in the most recent year is still on hand and used in manufacturing activity at the end of that year. In that event, the taxpayer will be treated as having placed the returned property in service in the next most recent year.

§11-13S-10. Tax credit review and accountability.

(a) Beginning on February 1, 2006, and on February 1 every third year thereafter, the commissioner shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a tax credit review and accountability report evaluating the cost effectiveness of the credit allowed under this article during the most recent three-year period for which information is available. The criteria to be evaluated includes, but is not limited to, for each year of the three-year period:

(1) The numbers of taxpayers claiming the credit;

(2) The net number, type and duration of new jobs created by all taxpayers claiming the credit and the wages and benefits paid;

(3) The cost of the credit;

(4) The cost of the credit per new job created; and

(5) Comparison of employment trends for the industry and for taxpayers within the industry that claim the credit.

(b) Taxpayers claiming the credit shall provide the information as the Tax Commissioner may require to prepare the report: Provided, That the information is subject to the confidentiality and disclosure provisions of sections five-d and five-s, article ten of this chapter.

§11-13T-1. Legislative finding and purpose.

The Legislature finds that the retention of physicians practicing in this state is in the public interest and promotes the general welfare of the people of this state. The Legislature further finds that the promotion of stable and affordable medical malpractice liability insurance premium rates and medical malpractice liability tail insurance premium rates will induce retention of physicians practicing in this state.

In order to effectively decrease the cost of medical malpractice liability insurance premiums and medical malpractice liability tail insurance premiums paid in this state on physicians' services, there is hereby provided a tax credit for certain medical malpractice liability insurance premiums and medical malpractice liability tail insurance premiums paid.

§11-13T-2. Definitions.