Senate Bill No. 239
(By Senators Tomblin, Mr. President and Caruth,
By Request of the Executive)
[Originating in the Committee on Finance;
reported February 20, 2008.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §11-6H-1, §11-6H-2,
§11-6H-3, §11-6H-4, §11-6H-5, §11-6H-6, §11-6H-7, §11-6H-8,
§11-6H-9, §11-6H-10 and §11-6H-11, all relating to the Senior
Citizen Property Tax Payment Deferment Act; providing
definitions; providing deferment for payment of certain
property tax increments; requiring application for the
deferment; providing for deferment renewal and waiver of
deferment; providing procedures for the review and approval of
application by the assessor; providing an appeals procedure;
authorizing creation of a lien on property for which deferment
is approved; specifying conditions for liens and lien payment
and termination; requiring the Tax Commissioner to prescribe
necessary forms and instructions; authorizing the Tax Commissioner to propose legislative rules; establishing
criminal penalties; and authorizing severability of provisions
of the article.
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 article, designated §11-6H-1, §11-6H-2,
§11-6H-3, §11-6H-4, §11-6H-5, §11-6H-6, §11-6H-7, §11-6H-8,
§11-6H-9, §11-6H-10 and §11-6H-11, all to read as follows:
ARTICLE 6H. SENIOR CITIZEN PROPERTY TAX PAYMENT DEFERMENT ACT.
§11-6H-1. Short title.
This article shall be known as the Senior Citizen Property Tax
Payment Deferment Act.
As used in this article, the following terms shall have the
meaning ascribed to them in this section, unless the context in
which the term is used clearly requires a different meaning or a
specific different definition is provided:
(1) "Assessed value" means the value of property as determined
under article three of this chapter.
(2) "Deferment" means a delay or postponement.
(3) "Homestead" means a homestead qualified for the homestead
property tax exemption authorized in article six-b of this chapter,
but limited to a single family residential house, including a
mobile or manufactured or modular home, and the land, not exceeding one acre, surrounding such structure that is owned by the owner of
the single family residential house, including a mobile or
manufactured or modular home; 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 by another.
(4) "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 is 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 considered the owner. Personal property mortgaged
or pledged shall, for the purpose of taxation, be considered the
property of the party in possession.
(5) "Sixty-five years of age or older" includes a person who
attains the age of sixty-five on or before the thirtieth day of
June following the July first assessment day.
(6) "Tax increment" means the increase of ad valorem taxes
assessed on the homestead, determined as the difference between the
ad valorem taxes assessed on the homestead for the current tax year
and the ad valorem taxes assessed on the homestead for the tax year
immediately preceding the tax year for which the taxpayer's
application for property tax deferment specified in this article is
approved by the assessor or otherwise finally approved in
accordance with the provisions of this article.
(7) "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 subsequent
to making application for deferment, the property is used only as
an abode, dwelling or habitat to the exclusion of any commercial
(8) "Tax year" means the calendar year following the July
first assessment day.
§11-6H-3. Property tax payment deferment.
(a) The following homesteads shall qualify for the deferment
provided in subsection (b) of this section:
(1) Any homestead owned by a person sixty-five years of age or
older and used and occupied exclusively for residential purposes by
the owner; and
(2) Any homestead that:
(A) Is owned by a person sixty-five years of age or older who,
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;
(B) Was most recently used and occupied exclusively for
residential purposes by the owner or the owner's spouse; and
(C) Has been retained by the owner for noncommercial purposes.
(b) For tax years commencing on or after the first day of January, two thousand nine, the owner of a homestead meeting the
qualifications set forth in subsection (a) of this section may
apply for a deferment in the payment of the tax increment of ad
valorem taxes assessed under the authority of article three of this
chapter on the homestead: Provided,
That the deferment may be
authorized only when the tax increment is the greater of three
hundred dollars or ten percent or more.
§11-6H-4. Application for deferment; renewals; waiver of
. -- No deferment may be allowed under this article
unless an application for deferment is filed with the assessor of
the county in which the homestead is located on or before the first
day of November following mailing of the tax ticket in which the
tax increment that is the subject of the application is contained,
such tax ticket being mailed pursuant to section eight, article
one, chapter eleven-a of this code. In the case of sickness,
absence or other disability of the owner, the application may be
filed by the owner or his or her duly authorized agent.
. -- After the owner has filed an application for
deferment with his or her assessor, there shall be no need for that
owner to refile an application for the taxes so deferred.
(c) Waiver of deferment
. -- Any person otherwise qualified who
does not apply for deferment from payment of a tax increment on or
before the first day of November as specified in this article, is considered to have waived his or her right to apply for deferment
from payment for that tax year.
§11-6H-5. Determination; notice of denial of application for
(a) The assessor shall, as soon as practicable after an
application for deferment is filed, review that application and
either approve or deny it. If the application is denied, the
assessor shall promptly, but not later than the first day of
January, serve the owner with written notice explaining why the
application was denied and furnish a form for filing with the
county commission, should the owner desire to take an appeal. The
notice required or authorized by this section shall be served on
the owner or his or her authorized representative either by
personal service or by certified mail.
(b) In the event that the assessor has information sufficient
to form a reasonable belief that an owner, after having been
originally granted a deferment, is no longer eligible for the
deferment, he or she shall, within thirty days after forming this
reasonable belief, revoke the deferment and serve the owner with
written notice explaining the reasons for the revocation and
furnish a form for filing with the county commission should the
owner desire to take an appeal.
§11-6H-6. Appeals procedure.
(a) Notice of appeal; thirty days
. -- Any owner aggrieved by the denial of his or her claim for application for deferment or the
revocation of a previously approved deferment may appeal to the
county commission of the county within which the property is
situated. All appeals shall be filed within thirty days after the
owner's receipt of written notice of the denial of an application
or the revocation of a previously approved deferment, as
applicable, pursuant to section five of this article.
(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 following the tax year
for which the deferment was first sought. In conducting its
review, the county commission may hold a hearing on the
application. The assessor or the owner 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
§11-6H-7. Termination of deferment.
Any deferment approved in accordance with the provisions of
section five of this article shall terminate immediately when any
of the following events occur:
(1) The death of the owner of the property for which the
deferment was authorized;
(2) The sale of the property for which the deferment was
(3) A determination by the assessor that the property for
which the deferment was approved no longer qualifies for the
deferment in accordance with the provisions of this article;
(4) The owner of the property for which the deferment was
approved fails to maintain a fire insurance policy on the property
that, if the property is destroyed, is sufficient to pay all debts
for which the property is used as collateral and all tax increments
that have been deferred, including accrued interest and other
charges provided by law;
(5) The owner of the property for which the deferment was
approved fails to maintain a flood insurance policy that, if the
property is destroyed, is sufficient to pay all debts for which the
property is used as collateral and all tax increments that have
been deferred, including accrued interest and other charges
provided by law: Provided,
That the provisions of this subdivision
shall apply only to the following property: (A) Property within a
flood elevation that has a one percent chance of being equaled or
exceeded each year, as determined by the Federal Emergency
Management Agency; (B) property within a one hundred-year
floodplain as designated by the Federal Emergency Management
Agency; or (C) property within a special flood hazard area as
determined by the Federal Emergency Management Agency or as shown on the most current National Flood Insurance Program flood hazard
boundary map, flood insurance rate map or flood boundary and
floodway map; or
(6) The tax increments deferred from payment, including any
accrued interest and other charges provided by law, are paid in
§11-6H-8. Property tax books; lien on property.
(a) Property book entry
. -- The amount deferred from payment
of the tax increment shall be shown and continued on the property
books until paid.
(b) Lien; statement to homestead owner
. -- The amount of the
tax increment deferred from payment, and the interest thereon and
other charges as provided by law, is a lien on the real property
for which the tax was assessed that continues until paid in full
and is not subject to the requirements for the collection of taxes
provided in chapter eleven-a of this code. For purposes of this
article, the interest to be charged shall be at the interest rate
specified in subsection (a), section three, article one, chapter
eleven-a of this code.
(c) When lien is to be paid
. -- The lien required by this
section shall be paid no later than ninety days following the
occurrence of any one of the events set forth in section seven of
§11-6H-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 propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code as the Tax Commissioner
considers necessary for the implementation of this article.
§11-6H-10. Criminal penalties; restitution.
(a) False or fraudulent claim for deferment
. -- Any owner who
willfully files a fraudulent application for deferment and any
person who knowingly assisted in the preparation or filing of a
fraudulent application for deferment or who knowingly supplied
information upon which the fraudulent application for deferment was
prepared or allowed is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than two hundred fifty nor more
than five hundred dollars or imprisoned in jail for not more than
one year, or both fined and imprisoned.
(b) Failure to notify assessor
. -- Any owner or his or her
legal representative who, prior to the next first day of July,
fails to notify the assessor of the county wherein property subject
to the tax increment deferment 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 or that the property is no longer used and occupied
for residential purposes exclusively by the owner is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars or imprisoned in jail for not more than
one year or both fined and imprisoned.
(c) 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 county for all taxes not
paid due to an improper deferment, or continuation of a deferment,
for the owner and interest thereon at the legal rate until paid.
If any provision of this article or the application thereof to
any person or circumstance is held unconstitutional or invalid,
such unconstitutionality or invalidity does 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