COMMITTEE SUBSTITUTE
FOR
H. B. 2775
(By
Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
(Originating in the Committee on Finance)
[February 22, 2007]
A BILL to
amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §11-15-3b; and to
amend and reenact §17A-3-4 of said code, all relating to the
taxation of vehicles; an exemption for new residents of this
state from payment of the privilege tax upon a showing that
the applicant was not a resident of this state at the time the
vehicle was purchased and the vehicle was properly titled in
the applicant's previous state or jurisdiction of residence;
elimination of the five percent tax for privilege of
certification of title;
the imposition of a five percent tax
on the sale and use of motor vehicles; and exemptions.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §11-15-3b; and that
§17A-3-4 of said code be amended
and reenacted, all to read as
follows:
ARTICLE 15.CONSUMER SALES AND SERVICE TAX.
§11-15-3b. Imposition of consumer sales tax on motor vehicle
sales; rate of tax; use of motor vehicle purchased
out of state; definition of sale; definition of
motor vehicle; exemptions; collection of tax by
Department of Motor Vehicles; dedication of tax to
highways; legislative and emergency rules.
(a) Notwithstanding any provision of this article or article
fifteen-a to the contrary, beginning on the first day of July, two
thousand eight, all motor vehicle sales to West Virginia residents
shall be subject to the consumer sales tax imposed by this article.
(b) Rate of tax on motor vehicles. -- Notwithstanding any
provision of this article or article fifteen-a of this chapter to
the contrary, the rate of tax on the sale and use of a motor
vehicle shall be five percent of its sale price, as defined in
section two, article fifteen-b of this chapter.
(c) Motor vehicles purchased out of state.-- Notwithstanding
this article or article fifteen-a to the contrary, the tax imposed
by this section shall apply to all motor vehicles, used as defined
by section one, article fifteen-a, chapter eleven of this code,
within this state, regardless of whether the vehicle was purchased
in a state other than West Virginia.
(d) Definition of Sale. -- Notwithstanding any provision of
this article or article fifteen-a to the contrary, for purposes of
this section "sale", "sales" or "selling" means any transfer or
lease of the possession or ownership of a motor vehicle for consideration, including isolated transactions between individuals
not being made in the ordinary course of repeated and successive
business and also including casual and occasional sales between
individuals not conducted in a repeated manner or in the ordinary
course of repetitive and successive transactions.
(e) Definition of Motor Vehicle. -- For purposes of this
section "motor vehicle" means every propellable device in, or upon
which any person or property is or may be transported or drawn upon
a highway including but not limited to: automobiles; buses; motor
homes; motorcycles; motorboats; all-terrain vehicles; snowmobiles;
low speed vehicles; trucks, truck tractors, and road tractors
having a weight of less than fifty five thousand pounds; trailers,
semitrailers, full trailers, pole trailers, and converter gear
having a gross weight of less than two thousand pounds; and
motorboat trailers, fold down camping trailers, traveling
trailers, house trailers, and motor homes; except that the term
"motor vehicle" does not include: modular homes, manufactured
homes, mobile homes, similar nonmotive propelled vehicles
susceptible of being moved upon the highways but primarily designed
for habitation and occupancy; devices operated regularly for the
transportation of persons for compensation under a certificate of
convenience and necessity or contract carrier permit issued by the
public service commission; mobile equipment as defined in section
one, article one, chapter seventeen-a; special mobile equipment
defined in section one, article one, chapter seventeen-a; trucks,
truck tractors, and road tractors having a gross weight of fifty-five thousand pounds or more; trailers, semitrailers, full
trailers, pole trailers and converter gear
, having weight of two
thousand pounds or greater: Provided, however, That notwithstanding
the provisions of section nine, article fifteen, chapter eleven of
this code, the exemption from tax under this section for mobile
equipment as defined in section one, article one, chapter
seventeen-a; special mobile equipment defined in section one,
article one, chapter seventeen-a
; trucks, truck tractors, and road
tractors having a gross weight of fifty-five thousand pounds or
more; and trailers, semitrailers, full trailers, pole trailers and
converter gear
, having weight of two thousand pounds or greater
;
does not subject the sale or purchase of the vehicle to the
consumer sales and service tax imposed by section three, article
fifteen, chapter eleven.
(f) Exemptions. -- Notwithstanding any other provision of this
code to the contrary, the tax imposed by this section shall not be
subject to any exemption in this code other than the following:
(1)
The tax imposed by this section does not apply to any
passenger vehicle offered for rent in the normal course of business
by a daily passenger rental car business as licensed under the
provisions of article six-d of this chapter. For purposes of this
section, a daily passenger car means a motor vehicle having a gross
weight of eight thousand pounds or less and is registered in this
state or any other state. In lieu of the tax imposed by this
section, there is hereby imposed a tax of not less than one dollar
nor more than one dollar and fifty cents for each day or part of the rental period. The commissioner of highways shall propose an
emergency rule in accordance with the provisions of article three,
chapter twenty-nine-a of this code to establish this tax.
(2) The tax imposed by this section does not apply where the
motor vehicle has been acquired by a corporation, partnership or
limited liability company from another corporation, partnership or
limited liability company that is a member of the same controlled
group and the entity transferring the motor vehicle has previously
paid the tax on that motor vehicle imposed by this section. For the
purposes of this section, control means ownership, directly or
indirectly, of stock or equity interests possessing fifty percent
or more of the total combined voting power of all classes of the
stock of a corporation or equity interests of a partnership or
limited liability company entitled to vote or ownership, directly
or indirectly, of stock or equity interests possessing fifty
percent or more of the value of the corporation, partnership or
limited liability company.
(3) The tax imposed by this section does not apply where motor
vehicle has been acquired by a senior citizen service organization
which is exempt from the payment of income taxes under the United
States Internal Revenue Code, Title 26 U.S.C. §501(c)(3) and which
is recognized to be a bona fide senior citizen service organization
by the senior services bureau existing under the provisions of
article five, chapter sixteen of this code.
(4) The tax imposed by this section does not apply to any
active duty military personnel
stationed outside of West Virginia for a period of at least nine months that acquires a motor vehicle
by sale within six months from the date the person returns to this
state.
(5) The tax imposed by this section does not apply to
motor
vehicles acquired by registered dealers of this state for resale
only.
(6) The tax imposed by this section does not apply to motor
vehicles acquired by this state or any political subdivision
thereof, or by any volunteer fire department or duly chartered
rescue or ambulance squad organized and incorporated under the laws
of the State of West Virginia as a nonprofit corporation for
protection of life or property.
(7) The tax imposed by this section does not apply to motor
vehicles acquired by an urban mass transit authority, as defined in
article twenty-seven, chapter eight of this code, or a nonprofit
entity exempt from federal and state income tax under the Internal
Revenue Code, for the purpose of providing mass transportation to
the public at large or designed for the transportation of persons
and being operated for the transportation of persons in the public
interest.
(8) The tax imposed by this section does not apply to the
registration of a vehicle owned and titled in the name of a
resident of this state if the applicant:
(A) Was not a resident of this state at the time the applicant
purchased or otherwise acquired ownership of the vehicle;
(B) Presents evidence as the commissioner may require of having titled the vehicle in the applicant's previous state of
residence;
(C) Has relocated to this state and can present such evidence
as the commissioner may require to show bona-fide residency in this
state;
(D) Presents an affidavit, completed by the assessor of the
applicant's county of residence, establishing that the vehicle has
been properly reported and is on record in the office of the
assessor as personal property; and
(E) Makes application to the division for a title and
registration, and pays all other fees required by this chapter
within thirty days of establishing residency in this state as
prescribed in subsection (a), section one-a of this article.
(g) Division of Motor Vehicles to collect.-- Notwithstanding
any provision of this article, article fifteen-a, and article ten
of this chapter to the contrary, the Division of Motor Vehicles
shall collect the tax imposed by this section: Provided, That the
tax created by this section is imposed upon the monthly payments
for the lease of any motor vehicle leased by a resident of West
Virginia, which tax is equal to five percent of the amount of the
monthly payment, applied to each payment, and continuing for the
entire term of the initial lease period. The tax shall be remitted
to the Division of Motor Vehicles on a monthly basis by the lessor
of the vehicle.
(h) Dedication of tax to highways. -- Notwithstanding any
provision of this article or article fifteen-a of this chapter to the contrary, all taxes collected pursuant to this section, after
deducting the amount of any refunds lawfully paid, shall be
deposited in the "road fund" in the state treasurer's office, and
expended by the Commissioner of Highways for matching federal funds
allocated for West Virginia.
(i) Legislative rules; emergency rules. -- Notwithstanding any
provision of this article, article fifteen-a, and article ten to
the contrary, the Division of Motor Vehicles may promulgate
legislative rules and emergency rules explaining and implementing
this section, which rules shall be promulgated in accordance with
the provisions of article three, chapter twenty-nine-a of this
code. The authority to promulgate rules includes authority to
amend or repeal those rules. If proposed legislative rules for
this section are filed in the State Register before the fifteenth
day of June, two thousand eight, those rules may be promulgated as
emergency legislative rules, as provided in article three of said
chapter twenty-nine-a.
ARTICLE 3. ORIGINAL AND RENEWAL REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-4. Application for certificate of title; fees; prohibition
of issuance of certificate of title without compliance
with §11-15-3b; exceptions.
(a) Certificates of registration of any vehicle or
registration plates for the vehicle, whether original issues or
duplicates, may not be issued or furnished by the Division of Motor Vehicles or any other officer or agent charged with the duty,
unless the applicant already has received, or at the same time
makes application for and is granted, an official certificate of
title of the vehicle in either an electronic or paper format. The
application shall be upon a blank form to be furnished by the
Division of Motor Vehicles and shall contain a full description of
the vehicle, which description shall contain a manufacturer's
serial or identification number or other number as determined by
the commissioner and any distinguishing marks, together with a
statement of the applicant's title and of any liens or encumbrances
upon the vehicle, the names and addresses of the holders of the
liens and any other information as the Division of Motor Vehicles
may require. The application shall be signed and sworn to by the
applicant. A duly certified copy of the division's electronic
record of a certificate of title is admissible in any civil,
criminal or administrative proceeding in this state as evidence of
ownership.
(b) A tax is imposed upon the privilege of effecting the
certification of title of each vehicle in the amount equal to five
percent of the value of the motor vehicle at the time of the
certification, to be assessed as follows:
(1) If the vehicle is new, the actual purchase price or
consideration to the purchaser of the vehicle is the value of the
vehicle. If the vehicle is a used or secondhand vehicle, the
present market value at time of transfer or purchase is the value
of the vehicle for the purposes of this section: Provided, That so much of the purchase price or consideration as is represented by
the exchange of other vehicles on which the tax imposed by this
section has been paid by the purchaser shall be deducted from the
total actual price or consideration paid for the vehicle, whether
the vehicle be new or secondhand. If the vehicle is acquired
through gift or by any manner whatsoever, unless specifically
exempted in this section, the present market value of the vehicle
at the time of the gift or transfer is the value of the vehicle for
the purposes of this section.
(2) No certificate of title for any vehicle may be issued to
any applicant unless the applicant has paid to the Division of
Motor Vehicles the tax imposed by this section which is five
percent of the true and actual value of the vehicle whether the
vehicle is acquired through purchase, by gift or by any other
manner whatsoever, except gifts between husband and wife or between
parents and children: Provided, That the husband or wife, or the
parents or children, previously have paid the tax on the vehicles
transferred to the State of West Virginia.
(3) The Division of Motor Vehicles may issue a certificate of
registration and title to an applicant if the applicant provides
sufficient proof to the Division of Motor Vehicles that the
applicant has paid the taxes and fees required by this section to
a motor vehicle dealership that has gone out of business or has
filed bankruptcy proceedings in the United States bankruptcy court
and the taxes and fees so required to be paid by the applicant have
not been sent to the division by the motor vehicle dealership or have been impounded due to the bankruptcy proceedings: Provided,
That the applicant makes an affidavit of the same and assigns all
rights to claims for money the applicant may have against the motor
vehicle dealership to the Division of Motor Vehicles.
(4) The Division of Motor Vehicles shall issue a certificate
of registration and title to an applicant without payment of the
tax imposed by this section if the applicant is a corporation,
partnership or limited liability company transferring the vehicle
to another corporation, partnership or limited liability company
when the entities involved in the transfer are members of the same
controlled group and the transferring entity has previously paid
the tax on the vehicle transferred. For the purposes of this
section, control means ownership, directly or indirectly, of stock
or equity interests possessing fifty percent or more of the total
combined voting power of all classes of the stock of a corporation
or equity interests of a partnership or limited liability company
entitled to vote or ownership, directly or indirectly, of stock or
equity interests possessing fifty percent or more of the value of
the corporation, partnership or limited liability company.
(5) The tax imposed by this section does not apply to vehicles
to be registered as Class H vehicles or Class M vehicles, as
defined in section one, article ten of this chapter, which are used
or to be used in interstate commerce. Nor does the tax imposed by
this section apply to the titling of Class B vehicles registered at
a gross weight of fifty-five thousand pounds or more, or to the
titling of Class C semitrailers, full trailers, pole trailers and converter gear: Provided, That if an owner of a vehicle has
previously titled the vehicle at a declared gross weight of
fifty-five thousand pounds or more and the title was issued without
the payment of the tax imposed by this section, then before the
owner may obtain registration for the vehicle at a gross weight
less than fifty-five thousand pounds, the owner shall surrender to
the commissioner the exempted registration, the exempted
certificate of title and pay the tax imposed by this section based
upon the current market value of the vehicle: Provided, however,
That notwithstanding the provisions of section nine, article
fifteen, chapter eleven of this code, the exemption from tax under
this section for Class B vehicles in excess of fifty-five thousand
pounds and Class C semitrailers, full trailers, pole trailers and
converter gear does not subject the sale or purchase of the
vehicles to the consumers sales and service tax.
(6) The tax imposed by this section does not apply to titling
of vehicles leased by residents of West Virginia. A tax is imposed
upon the monthly payments for the lease of any motor vehicle leased
by a resident of West Virginia, which tax is equal to five percent
of the amount of the monthly payment, applied to each payment, and
continuing for the entire term of the initial lease period. The
tax shall be remitted to the Division of Motor Vehicles on a
monthly basis by the lessor of the vehicle.
(7) The tax imposed by this section does not apply to titling
of vehicles by a registered dealer of this state for resale only,
nor does the tax imposed by this section apply to titling of vehicles by this state or any political subdivision thereof, or by
any volunteer fire department or duly chartered rescue or ambulance
squad organized and incorporated under the laws of the State of
West Virginia as a nonprofit corporation for protection of life or
property. The total amount of revenue collected by reason of this
tax shall be paid into the state road fund and expended by the
Commissioner of Highways for matching federal funds allocated for
West Virginia. In addition to the tax, there is a charge of five
dollars for each original certificate of title or duplicate
certificate of title so issued: Provided, That this state or any
political subdivision of this state or any volunteer fire
department or duly chartered rescue squad is exempt from payment of
the charge.
(8) The certificate is good for the life of the vehicle, so
long as the vehicle is owned or held by the original holder of the
certificate and need not be renewed annually, or any other time,
except as provided in this section.
(9) If, by will or direct inheritance, a person becomes the
owner of a motor vehicle and the tax imposed by this section
previously has been paid to the Division of Motor Vehicles on that
vehicle, he or she is not required to pay the tax.
(10) A person who has paid the tax imposed by this section is
not required to pay the tax a second time for the same motor
vehicle, but is required to pay a charge of five dollars for the
certificate of retitle of that motor vehicle, except that the tax
shall be paid by the person when the title to the vehicle has been transferred either in this or another state from the person to
another person and transferred back to the person.
(11) The tax imposed by this section does not apply to any
passenger vehicle offered for rent in the normal course of business
by a daily passenger rental car business as licensed under the
provisions of article six-d of this chapter. For purposes of this
section, a daily passenger car means a Class A motor vehicle having
a gross weight of eight thousand pounds or less and is registered
in this state or any other state. In lieu of the tax imposed by
this section, there is hereby imposed a tax of not less than one
dollar nor more than one dollar and fifty cents for each day or
part of the rental period. The commissioner shall propose an
emergency rule in accordance with the provisions of article three,
chapter twenty-nine-a of this code to establish this tax.
(12) The tax imposed by this article does not apply to the
titling of any vehicle purchased by a senior citizen service
organization which is exempt from the payment of income taxes under
the United States Internal Revenue Code, Title 26 U.S.C. §501(c)(3)
and which is recognized to be a bona fide senior citizen service
organization by the senior services bureau existing under the
provisions of article five, chapter sixteen of this code.
(13) The tax imposed by this section does not apply to the
titling of any vehicle operated by an urban mass transit authority
as defined in article twenty-seven, chapter eight of this code or
a nonprofit entity exempt from federal and state income tax under
the Internal Revenue Code and whose purpose is to provide mass transportation to the public at large designed for the
transportation of persons and being operated for the transportation
of persons in the public interest.
(14) The tax imposed by this section does not apply to the
transfer of a title to a vehicle owned and titled in the name of a
resident of this state if the applicant:
(A) Was not a resident of this state at the time the applicant
purchased or otherwise acquired ownership of the vehicle;
(B) Presents evidence as the commissioner may require of having
titled the vehicle in the applicant's previous state of residence;
(C) Has relocated to this state and can present such evidence as
the commissioner may require to show bona-fide residency in this state;
(D) Presents an affidavit, completed by the assessor of the
applicant's county of residence, establishing that the vehicle has
been properly reported and is on record in the office of the
assessor as personal property; and
(E) Makes application to the division for a title and registration,
and pays all other fees required by this chapter within thirty days
of establishing residency in this state as prescribed in subsection
(a), section one-a of this article: Provided, That a period of
amnesty of three months be established by the commissioner during
the calendar year two thousand seven, during which time any
resident of this state, having titled his or her vehicle in a
previous state of residence, may pay without penalty any fees
required by this chapter and transfer the title of his or her
vehicle in accordance with the provisions of this subsection.
(c) Notwithstanding any provisions of this code to the
contrary, the owners of trailers, semitrailers, recreational
vehicles and other vehicles not subject to the certificate of title
tax prior to the enactment of this chapter are subject to the
privilege tax imposed by this section: Provided, That the
certification of title of any recreational vehicle owned by the
applicant on the thirtieth day of June, one thousand nine hundred
eighty-nine, is not subject to the tax imposed by this section:
Provided, however, That mobile homes, manufactured homes, modular
homes and similar nonmotive propelled vehicles, except recreational
vehicles and house trailers, susceptible of being moved upon the
highways but primarily designed for habitation and occupancy,
rather than for transporting persons or property, or any vehicle
operated on a nonprofit basis and used exclusively for the
transportation of mentally retarded or physically handicapped
children when the application for certificate of registration for
the vehicle is accompanied by an affidavit stating that the vehicle
will be operated on a nonprofit basis and used exclusively for the
transportation of mentally retarded and physically handicapped
children, are not subject to the tax imposed by this section, but
are taxable under the provisions of articles fifteen and fifteen-a,
chapter eleven of this code.
(d) Beginning on the first of July, two thousand and eight,
the tax imposed under this article is abolished and after that date
no
certificate of title for any motor vehicle may be issued to any
applicant unless the applicant
provides sufficient proof to the Division of Motor Vehicles that the applicant has paid the fees
required by this section
and the tax imposed by §11-15-3c.
(d)(e) Any person making any affidavit required under any
provision of this section who knowingly swears falsely, or any
person who counsels, advises, aids or abets another in the
commission of false swearing, or any person, while acting as an
agent of the Division of Motor Vehicles, issues a vehicle
registration without first collecting the fees and taxes or fails
to perform any other duty required by this chapter to be performed
before a vehicle registration is issued is, on the first offense,
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five hundred dollars or be confined in jail for
a period not to exceed six months or, in the discretion of the
court, both fined and confined. For a second or any subsequent
conviction within five years, that person is guilty of a felony
and, upon conviction thereof, shall be fined not more than five
thousand dollars or be imprisoned in a state correctional facility
for not less than one year nor more than five years or, in the
discretion of the court, both fined and imprisoned.
(e)(f) Notwithstanding any other provisions of this section,
any person in the military stationed outside West Virginia or his
or her dependents who possess a motor vehicle with valid
registration are exempt from the provisions of this article for a
period of nine months from the date the person returns to this
state or the date his or her dependent returns to this state,
whichever is later.
(f)(g) No person may transfer, purchase or sell a
factory-built home without a certificate of title issued by the
commissioner in accordance with the provisions of this article:
(1) Any person who fails to provide a certificate of title
upon the transfer, purchase or sale of a factory-built home is
guilty of a misdemeanor and, upon conviction thereof, shall for the
first offense be fined not less than one hundred dollars nor more
than one thousand dollars, or be confined in jail for not more than
one year, or both fined and confined. For each subsequent offense,
the fine may be increased to not more than two thousand dollars,
with confinement in jail not more than one year, or both fined and
confined.
(2) Failure of the seller to transfer a certificate of title
upon sale or transfer of the factory-built home gives rise to a
cause of action, upon prosecution thereof, and allows for the
recovery of damages, costs and reasonable attorney fees.
(3) This subsection does not apply to a mobile or manufactured
home for which a certificate of title has been canceled pursuant to
section twelve-b of this article.
(g)(h) Notwithstanding any other provision to the contrary,
whenever reference is made to the application for or issuance of
any title or the recordation or release of any lien, it includes
the application, transmission, recordation, transfer of ownership
and storage of information in an electronic format.
(h)(i) Notwithstanding any other provision contained in this
section, nothing herein shall be considered to include modular homes as defined in subsection (i), section two, article fifteen,
chapter thirty-seven of this code and built to the State Building
Code as established by legislative rules promulgated by the State
Fire Commission pursuant to section five-b, article three, chapter
twenty-nine of this code.