Senate Bill No. 345
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Introduced January 25, 2010; referred to the Committee on
Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §11-13B-19, relating
to requiring a study of the telecommunications tax;
authorizing the Tax Commissioner to order the disclosure of
certain information; exempting certain information received by
the Tax Commissioner from the West Virginia Freedom of
Information Act; prohibiting the disclosure of certain
information received by the Tax Commissioner; providing for
criminal and civil penalties; defining terms; and authorizing
the Tax Commissioner to promulgate rules and emergency rules.
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 §11-13B-19, to read as
follows:
ARTICLE 13B. TELECOMMUNICATIONS TAX.
§11-13B-19. Tax Commissioner study of telecommunications tax.
(a)
Findings and purpose. -- The Legislature finds that the
tax imposed by this article fails to account for modern business
models, operational structures, technologies and fundamental
economics of the business of telecommunications. The Legislature
further finds that the tax imposed under this article should be
amended to provide for a reasonable, fair and efficient tax that
inures to the benefit and general welfare of West Virginia.
Therefore, it is the purpose of this section to require a study of
telecommunications services relative to the imposition of a
telecommunications tax, to provide the Tax Commissioner with
plenary authority to order the disclosure of financial information
and other data necessary to undertake the study and to provide for
the confidentiality of financial information and other data
disclosed as part of the study.
(b)
Telecommunications tax study. -- The Tax Commissioner
shall study the business of telecommunications service and related
businesses and shall file a report with the Governor and the
Legislature on or before July 1, 2011. The report shall recommend
amendments to the tax imposed under this article or any other tax
pertaining to telecommunications service and shall include
recommended legislation. The Tax Commissioner may include this
study as part of the findings and recommendations of the Governor's
Tax Modernization Project and may cooperate with persons engaged in the Governor's Tax Modernization Project to further the purposes of
this study. Any person engaged with the Governor's Tax
Modernization Project who assists in conducting this study is "an
agent of this state" for the purposes of section five-d, article
ten of this chapter and is subject to the requirements of that
section and subsection (e) of this section. For purposes of this
study, the Tax Commissioner may seek and examine the information,
data, records and testimony of: Experts in the fields of law,
economics and taxation; representatives of state, county, local and
municipal governmental subdivisions of this state and other states
of the United States; persons and entities engaged in
telecommunications services businesses; persons knowledgeable about
the utilities and telecommunications industries, taxation of
utilities and telecommunications industries and the economics of
utilities and telecommunications industries; and any other person
or entity that may have information relevant to the study mandated
by this section.
(c)
Definitions. -- As used in this section:
(1) "Person" means any individual, firm, partnership, limited
partnership, company, copartnership, joint venture, association,
corporation, organization or entity, whether private or public.
(2) "Telecommunications service" means the electronic
transmission, conveyance or routing of voice, data, audio, video or
any other information or signals to a point or between or among points.
(A) Telecommunications service includes the transmission,
conveyance or routing in which computer processing applications are
used to act on the form, code or protocol of the content for
purposes of transmission, conveyance or routing without regard to
whether the service is referred to as voice over Internet protocol
services or is classified by the Federal Communications Commission
as enhanced or value added. The term telecommunications service
includes, but is not limited to: Voice mail service, vertical
service, value-added nonvoice data service, residential
telecommunications service, business telecommunications service,
pay telephone service, paging service, mobile wireless service,
intrastate telecommunications service, interstate
telecommunications service, international telecommunications
service, fixed wireless service, directory assistance, detailed
telecommunications billing service, conference-bridging service,
coin-operated telephone service, 900 service, 800 service,
emergency telephone systems, and enhanced emergency telephone
systems.
(B) Telecommunications service does not include:
(i) Advertising, including, but not limited to, directory
advertising;
(ii) Ancillary services;
(iii) Billing and collection services provided to third parties;
(iv) Data processing and information services that allow data
to be generated, acquired, stored, processed or retrieved and
delivered by an electronic transmission to a purchaser where the
purchaser's primary purpose for the underlying transaction is the
processed data or information;
(v) Digital products delivered electronically, including, but
not limited to, software, music, video, reading materials or ring
tones;
(vi) Installation or maintenance of wiring or equipment on a
customer's premises;
(vii) Internet access service;
(viii) Radio and television audio and video programming
services, regardless of the medium, including the furnishing of
transmission, conveyance and routing of services by the programming
service provider. Radio and television audio and video programming
services shall include, but not be limited to, cable service, as
defined in 47 U.S.C. §522(6):
Provided, That, any
telecommunications services, which are provided, or offered by, or
available from a person, company or entity that also provides cable
service shall not be treated as cable services for purposes of this
section, and shall be treated as telecommunications services in
accordance with the provisions of this section. Radio and
television audio and video programming services also include, audio and video programming services delivered by commercial mobile radio
service providers, as defined in 47 CFR 20.3; or
(ix) Tangible personal property.
(d)
Disclosure of financial information and other data. --
(1) Notwithstanding any provision of this code to the
contrary, the Tax Commissioner may, for the purpose of conducting
the study required by this section, order the disclosure of
financial information and other data in the possession of any
person or entity that may have information relevant to the study
mandated by this section, including, but not limited to, government
entities and persons or entities engaged in a telecommunications
service business in this state or a related business. The
disclosures shall be on forms prescribed by the Tax Commissioner
and shall be completed and filed pursuant to instructions provided
by the Tax Commissioner.
(2) Any person failing to comply with an order of disclosure
shall be subject to a penalty, collectible as provided in article
ten of this chapter, the amount of which shall be the greater of
$1,000 or ten percent of the gross income of the person failing to
comply with the requirements of this section, as computed by the
Tax Commissioner, for the tax period for which the disclosure was
mandated by the Tax Commissioner. The Tax Commissioner may waive
all or any part of such penalty for good cause shown.
(3) The Tax Commissioner, or his or her designee, may issue subpoenas and subpoenas duces tecum, in the manner and subject to
the requirements of section five-b, article ten of this chapter, to
enforce the disclosure requirements of this section.
(e)
Confidentiality. --
(1) Financial information and other data disclosed to the Tax
Commissioner under the provisions of this section shall be
considered confidential and exempt from article one, chapter
twenty-nine-b of this code.
(2) Notwithstanding any provision of this code to the
contrary, the Tax Commissioner may share financial information and
other data disclosed under this section with any person conducting
the study. It is unlawful for the Tax Commissioner or any person
conducting the study to disclose to any person not conducting the
study any financial information or other data disclosed under this
section.
(3) In addition to any applicable penalties in section five-d,
article ten of this chapter, any person who violates the provisions
of this subsection 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.
(4) 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.
(f)
Rules authorized. -- The Tax Commissioner may promulgate rules, including emergency rules, to implement the provisions of
this section.
For the purposes of article three, chapter twenty-
nine-a of this code, a sufficient emergency exists to justify the
promulgation of the emergency rules.
NOTE: The purpose of this bill is to mandate that the Tax
Commissioner undertake a study of the telecommunications industry
for the purpose of making recommendations with respect to
amendments to the state telecommunications tax. The bill
authorizes the Tax Commissioner to order the disclosure of certain
information by persons engaged in the telecommunications service
business or a related business and includes confidentiality
protections for any information so disclosed.
This section is new; therefore, strike-throughs and
underscoring have been omitted.