ENROLLED
COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 430
(Originating in the Committee on the Judiciary.)
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[Passed April 10, 1993; in effect ninety days from passage.]
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AN ACT to amend and reenact section five-s, article ten, chapter
eleven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections one, two, three, four, five, seven, eight, eight-a,
eight-b, nine and eleven, article eight, chapter thirty-six
of said code, all relating to taxation procedure and
administration; permitting disclosure of certain business
registration information to the state treasurer for recovery
and disposition of unclaimed property; defining due
diligence; reducing the time period for a presumption of
abandonment of property from seven years to five years;
clarifying state's authority to take custody of abandoned
property; requiring the holder of unclaimed property to
exercise due diligence to locate the whereabouts of the
owner of the property; and definitions.
Be it enacted by the Legislature of West Virginia:
That section five-s, article ten, chapter eleven of the codeof West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that sections one, two,
three, four, five, seven, eight, eight-a, eight-b, nine and
eleven, article eight, chapter thirty-six of said code be amended
and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§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 and thirteen-h of this chapter and article one,
chapter five-e of this code for any tax year beginning on or
after the first day of July, one thousand nine hundred ninety-
one. The categories by dollar amount of credit received shall be
as follows:
(A) More than $1.00, 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 $1,000,000; and
(F) More than $1,000,000.
(2) Notwithstanding any provision in this code to the
contrary, the tax commissioner shall publish in the state
register the following information regarding any 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 such
compromise or when the tax commissioner compromises any civil tax
case for an amount that is more than two hundred fifty thousand
dollars less than the assessment of tax owed made by the tax
commissioner:
(A) The names and addresses of taxpayers that are parties to
such compromise;
(B) A summary of such compromise;
(C) Any written advice or recommendation rendered by the
attorney general regarding such 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
nor any other information which would otherwise be confidential
under any other provisions of law be disclosed pursuant to the
provisions of this subsection.
(3) Notwithstanding any provision in this code to thecontrary, 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 such 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 and workers' compensation to disclose and
receive return information:
Provided, That the tax commissioner
may promulgate rules pursuant to chapter twenty-nine-a of this
code regarding further agencies with which written exchange of
information agreements may be sought:
Provided, however, That
the tax commissioner may not promulgate emergency rules regarding
further agencies with which written exchange of information
agreements may be sought. Such agreements shall be published in
the state register and shall only be 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 shall not be construed to preclude or limit disclosure
of tax information authorized by other provisions of this code.
Any confidential return information so disclosed shall remain
confidential in the hands of such other division 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 agreementwith the state treasurer to disclose to the state treasurer the
following business registration information: (1) The names,
addresses and federal employer identification numbers of
businesses which have registered to do business in West Virginia;
and (2) the type of business activity and organization of those
businesses. Disclosure of such 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 shall not be construed to preclude or limit disclosure
of tax information authorized by other provisions of this code.
Any confidential return information disclosed hereunder or
thereunder shall otherwise remain 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 the fifteenth
day of January, one thousand nine hundred ninety-two and every
fifteenth day of January thereafter, the governor shall submit to
the president of the Senate and the speaker of the House of
Delegates a tax expenditure report. Such report shall expressly
identify all tax expenditures. Within three-year cycles, such
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" shall mean 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:
Provided, That the tax commissioner shall
promulgate rules setting forth the procedure by which he or she
will compile such 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
any manner inconsistent with the provisions of Section 6103 of
the Internal Revenue Code of 1986, as amended, or of such other
states' confidentiality laws.
CHAPTER 36. ESTATES AND PROPERTY.
ARTICLE 8. UNIFORM DISPOSITION OF UNCLAIMED PROPERTY ACT.
§36-8-1. Definitions and use of terms.
As used in this article, unless the context otherwise
requires:
(a) "Banking organization" means any bank, trust company or
a private banker engaged in business in this state, or a banking
institution as defined in section one, article four, chapter
thirty-one of this code.
(b) "Business association" means any corporation (other than
a public corporation), joint stock company, business trust,
partnership or any association for business purposes of two or
more individuals.
(c) "Due diligence" shall include, but not be limited to,
the mailing of a letter by first-class mail to the last known
address of the owner as indicated on the records of the holder.
(d) "Financial organization" means any savings and loan
association, building and loan association, industrial loan
company, credit union, business association which issues
travelers' checks or investment company engaged in business in
this state.
(e) "Holder" means any person in possession of property
subject to this article belonging to another, or who is trustee
in case of a trust, or is indebted to another on an obligation
subject to this article.
(f) "Life insurance corporation" means any association or
corporation transacting within this state the business of
insurance on the lives of persons or insurance appertaining
thereto, including, but not by way of limitation, endowments and
annuities.
(g) "Owner" means a depositor in case of a deposit, a
beneficiary in case of a trust, a creditor, claimant or payee in
case of other choses in action, or any person having a legal or
equitable interest in property subject to this article or his
legal representative.
(h) "Person" means any individual, business association,
government or political subdivision, public corporation, public
authority, estate, trust, two or more persons having a joint or
common interest, or any other legal or commercial entity; but
shall not include any retirement system supported entirely or in
part by the state of West Virginia.
(i) "Utility" means any person who owns or operates within
this state, for public use, any plant, equipment, property,
franchise or license for the transmission of communications or
the production, storage, transmission, sale, delivery or
furnishing of electricity, water, steam or gas.
§36-8-2. Property held by banking or financial organizations.
The following property held or owing by a banking or
financial organization is presumed abandoned:
(a) Any noninterest bearing demand, savings or matured time
deposit made in this state with a banking organization, or other
financial organization, excluding any charges which may lawfully
be withheld, if the owner has not within the immediately
preceding five years increased or decreased the amount of the
deposit:
Provided, That notwithstanding the fact that there has
been no increase or decrease in the amount of the deposit within
the five-year period, there shall be no presumption of
abandonment if the owner has within the immediately preceding
year:
(1) Corresponded in writing with the organization concerning
the deposit; or
(2) Otherwise indicated an interest in the deposit as
evidenced by a memorandum on file with the organization.
In any case where the owner has taken any of the actions
specified in paragraph (1) or (2) of this subdivision there shall
thereafter be no presumption of abandonment unless and until
another five years have passed without any increase or decrease
in the amount of the deposit and without any of such actions
having been taken in the last year of such further five-yearperiod.
(b) Any interest bearing demand, savings or matured time
deposit made in this state with a banking organization or other
financial organization, together with any interest or dividend
thereon, excluding any charges that may lawfully be withheld, if
the owner has not within the immediately preceding fifteen years
increased or decreased the amount of the deposit:
Provided, That
notwithstanding the fact that there has been no increase or
decrease in the amount of the deposit within the fifteen-year
period, there shall be no presumption of abandonment if the owner
has within the immediately preceding year:
(1) Presented the passbook or other similar evidence of
deposit for the crediting of interest; or
(2) Corresponded in writing with the organization concerning
the deposit; or
(3) Otherwise indicated an interest in the deposit as
evidenced by a memorandum on file with the organization.
In any case where the owner has taken any of the actions
specified in paragraph (1), (2) or (3) of this subdivision there
shall thereafter be no presumption of abandonment unless and
until another fifteen years have passed without any increase or
decrease in the amount of the deposit and without any of such
actions having been taken in the last year of such further
fifteen-year period.
(c) Any noninterest bearing funds paid in this state toward
the purchase of shares or other interest in a financial
organization or any deposit made therewith in this state,
excluding any charges that may lawfully be withheld, if the ownerhas not within the immediately preceding five years increased or
decreased the amount of the funds or deposit:
Provided, That
notwithstanding the fact that there has been no increase or
decrease in the amount of the funds or deposit within said five-
year period, there shall be no presumption of abandonment if the
owner has within the immediately preceding year:
(1) Corresponded in writing with the financial organization
concerning the funds or deposit; or
(2) Otherwise indicated an interest in the funds or deposit
as evidenced by a memorandum on file with the financial
organization.
In any case where the owner has taken any of the actions
specified in paragraph (1) or (2) of this subdivision there shall
thereafter be no presumption of abandonment unless and until
another five years have passed without any increase or decrease
in the amount of the funds or deposit and without any of such
actions having been taken in the last year of such further five-
year period.
(d) Any interest bearing funds paid in this state toward the
purchase of shares or other interest in a financial organization
or any deposit made therewith in this state, and any interest or
dividends thereon, excluding any charges that may lawfully be
withheld, if the owner has not within the immediately preceding
fifteen years increased or decreased the amount of the funds or
deposit:
Provided, That notwithstanding the fact that there has
been no increase or decrease in the amount of the funds or
deposit within said fifteen-year period, there shall be no
presumption of abandonment if the owner has within theimmediately preceding year:
(1) Presented an appropriate record for the crediting of
interest or dividends; or
(2) Corresponded in writing with the financial organization
concerning the funds or deposit; or
(3) Otherwise indicated an interest in the funds or deposit
as evidenced by a memorandum on file with the financial
organization.
In any case where the owner has taken any of the actions
specified in paragraph (1), (2) or (3) of this subdivision (d),
there shall thereafter be no presumption of abandonment unless
and until another fifteen years have passed without any increase
or decrease in the amount of the funds or deposit and without any
of such actions having been taken in the last year of such
further fifteen-year period.
(e) Any sum payable on any check certified in this state or
on any written instrument issued in this state on which a banking
or financial organization is directly liable, including, by way
of illustration but not of limitation, a certificate of deposit
and draft that has been outstanding for more than five years from
the date it was payable, or from the date of its issuance if
payable on demand, unless the owner has within the preceding year
corresponded in writing with the banking or financial
organization concerning it, or otherwise indicated an interest as
evidenced by a memorandum on file with the banking or financial
organization.
(f) Any funds or other personal property, tangible or
intangible, removed from a safe-deposit box or any othersafekeeping depository in this state on which the lease or rental
period has expired due to nonpayment of rental charges or other
reason, or any surplus amounts arising from the sale thereof
pursuant to law, that have been unclaimed by the owner for more
than five years from the date on which the lease or rental period
expired.
(g) No holder may impose with respect to property described
in this section any charges due to dormancy or inactivity or
cease payment of interest unless there is an enforceable written
contract between the holder and the owner of the property
pursuant to which the holder may impose those charges or cease
payment of interest.
(h) Any amount held or owing by any organization for the
payment of a travelers' check on which such organization is
directly liable shall be presumed abandoned if such amount is
held or owing for payment of a travelers check which shall have
been outstanding for more than fifteen years from the date of its
sale.
§36-8-3. Unclaimed funds held by life insurance corporations.
(a) Unclaimed funds, as defined in this section, held and
owing by a life insurance corporation shall be presumed abandoned
if the last-known address, according to the records of the
corporation, of the person entitled to the funds is within this
state. If a person other than the insured or annuitant is
entitled to the funds and no address of such person is known to
the corporation or if it is not definite and certain from the
records of the corporation what person is entitled to the funds,
it is presumed that the last-known address of the person entitledto the funds is the same as the last-known address of the insured
or annuitant according to the records of the corporation.
(b) "Unclaimed funds," as used in this section, means all
moneys held and owing by any life insurance corporation unclaimed
and unpaid for more than five years after the moneys became due
and payable as established from the records of the corporation
under any life or endowment insurance policy or annuity contract
which has matured or terminated. A life insurance policy not
matured by actual proof of the death of the insured is deemed to
be matured and the proceeds thereof are deemed to be due and
payable if such policy was in force when the insured attained the
limiting age under the mortality table on which the reserve is
based, unless the person appearing entitled thereto has within
the preceding five years: (1) Assigned, readjusted or paid
premiums on the policy, or subjected the policy to loan; or (2)
corresponded in writing with the life insurance corporation
concerning the policy. Moneys otherwise payable according to the
records of the corporation are deemed due and payable although
the policy or contract has not been surrendered as required.
§36-8-4. Deposits and refunds held by utilities.
The following funds held or owing by any utility are
presumed abandoned:
(a) Any deposit made subsequent to the year one thousand
nine hundred fifty-seven, by a subscriber with a utility to
secure payment for, or any sum paid in advance for, utility
services to be furnished in this state, less any lawful
deductions, that has remained unclaimed by the person appearing
on the records of the utility entitled thereto for more than fiveyears after the termination of the services for which the deposit
or advance payment was made.
(b) Any sum which a utility has been ordered to refund and
which was received subsequent to the year one thousand nine
hundred fifty-seven, for utility services rendered in this state,
together with any interest thereon, less any lawful deductions,
that has remained unclaimed by the person appearing on the
records of the utility entitled thereto for more than five years
after the date it became payable in accordance with the final
determination or order providing for the refund.
§36-8-5. Undistributed dividends and distributions of business
associations.
Any stock or other certificate of ownership, or any
dividend, profit, distribution, interest, payment on principal or
other sum held or owing by a business association for or to a
shareholder, certificate holder, member, bondholder or other
security holder, or a participating patron of a cooperative, who
has not claimed it or corresponded in writing with the business
association concerning it, within five years after the date
prescribed for payment or delivery, is presumed abandoned if:
(a) It is held or owing by a business association organized
under the laws of or created in this state; or
(b) It is held or owing by a business association doing
business in this state, but not organized under the laws of or
created in this state and the records of the business association
indicate that the last-known address of the person entitled
thereto is in this state.
§36-8-7. Property held by fiduciaries.
All intangible personal property and any income or increment
thereon, held in a fiduciary capacity for the benefit of another
person is presumed abandoned unless the owner has, within five
years after the final date for distribution of such property and
the cessation of all active fiduciary duties as required by law
or the instrument under which the fiduciary is acting, increased
or decreased the principal, accepted payment of principal or
income, corresponded in writing with the fiduciary concerning the
property, or otherwise indicated an interest as evidenced by a
memorandum on file with the fiduciary:
(a) If the property is held by a banking organization or a
financial organization, or by a business association organized
under the laws of or created in this state; or
(b) If it is held by a business association, doing business
in this state, but not organized under the laws of or created in
this state, and the records of the business association indicate
that the last-known address of the person entitled thereto is in
this state; or
(c) If it is held in this state by any other person.
§36-8-8. Property held by courts and public officers and
agencies.
(a) All intangible personal property held for the owner by
any state or federal court, public corporation, public authority
or public officer in this state, or a political subdivision
thereof, that has remained unclaimed by the owner for more than
five years is presumed abandoned:
Provided, That this provision
shall in no way affect such property in the custody or control of
any state or federal court in any pending action:
Provided,however, That if any federal statute provides for the
distribution of any unclaimed property subject to the
jurisdiction of a federal court, this statute shall not apply.
(b) Notwithstanding the provisions of subsection (a) of this
section, all intangible personal property in the custody or
control of a general receiver of a state court of record
appointed pursuant to the provisions of article six, chapter
fifty-one of this code, that has remained unclaimed by the owner
for more than five years is presumed abandoned:
Provided, That
any such property in the custody or control of any such general
receiver in which there is any contingent remainder interest, or
any vested remainder interest which is subject to open to let in
persons not yet in being or to open to let in members of any
class, or any executory interest, or executory devise interest,
or any base, qualified, conditional or limited fee estate or
interest, or any other qualified, conditional, limited or
determinable estate or interest, shall not be presumed abandoned
until such property has remained unclaimed for more than five
years after such estate or interest has vested or any such class
has closed and the persons entitled to such property have been
determined.
§36-8-8a. Providing for recovery of abandoned property.
With respect to property originating or issued by this
state, any political subdivision thereof or any entity
incorporated, organized, created or otherwise located therein,
the following provision shall apply:
(a) Unless presumed abandoned and subject to the custody of
this state by any other provision of law, all intangibleproperty, including, but not limited to, any interest, dividend,
or other earnings thereon, less any lawful charges, that is held
by a business association, federal, state or local government or
person or entity, regardless of where the holder may be found, is
presumed abandoned and subject to the custody of this state as
unclaimed property if:
(1) The address of the owner was never known or the
last-known address of the owner is unknown; and
(2) The entity originating or issuing the intangible
property is in this state or any of its political subdivisions or
is incorporated, organized, created or otherwise located in this
state.
(b) Subsection (a) of this section shall apply to all
property held at the time of enactment or at anytime thereafter
regardless of when such property became or becomes presumptively
abandoned.
§36-8-8b. Presumption of abandonment of personal property held
by federal government.
(a) All tangible personal property or intangible personal
property, including choses in action in amounts certain, and all
debts owed, entrusted funds or other property held by any
federal, state or local government or governmental subdivision,
agency, entity, officer or appointee thereof, shall be presumed
abandoned in this state if the last-known address of the owner of
the property is in this state and the property has remained
unclaimed for five years:
Provided, That if another provision of
law provides for a presumption of abandonment and custodial
taking of the subject property by this state upon the passage ofa longer period of time, such longer period of time shall
control.
(b) This section shall apply to all abandoned property held
by any federal, state or local government or governmental
subdivision, agency, entity, officer or appointee thereof, at the
time of enactment, or at any time thereafter, regardless of when
such property became or becomes presumptively abandoned.
§36-8-9. Miscellaneous personal property held for another
person; exception; prohibiting the levying of charges on
inactive savings account.
All personal property not otherwise covered by this article,
including any income or increment thereon and after deducting any
lawful charges, that is held or owing in this state in the
ordinary course of the holder's business and has remained
unclaimed by the owner for more than five years after it became
payable or distributable is presumed abandoned:
Provided, That
this section shall not apply to such property held or owing by a
utility prior to the year one thousand nine hundred fifty-seven:
Provided, however, That notwithstanding the provisions of section
two of this article, no banking or other financial organization
or institution shall, after the effective date of this section,
demand, collect, charge or contract to receive any charge due to
dormancy or inactivity on any interest bearing savings or time
deposit for any period of time prior to the withdrawal of such
funds by the depositor, his personal agent or representative, or
the accrual under this article of the right of the state to
deposit or sell as abandoned property any such deposit. For
purposes of this proviso, any interest bearing savings or timedeposit shall be deemed to be dormant or inactive if the
depositor, his personal agent or representative has not within
the immediately preceding two years increased or decreased the
amount of the deposit.
§36-8-11. Report of abandoned property.
(a) Every person holding funds or other property, tangible
or intangible, presumed abandoned under this article shall report
to the state treasurer with respect to the property as
hereinafter provided.
(b) The report shall be verified and shall include:
(1) The name, if known, and last-known address, if any, of
each person appearing from the records of the holder to be the
owner of any property of the value of fifty dollars or more
presumed abandoned under this article;
(2) In case of unclaimed funds of life insurance
corporations, the full name of the insured or annuitant and his
last-known address according to the life insurance corporation's
records;
(3) The nature and identifying number, if any, or
description of the property and the amount appearing from the
records to be due, except that items of value under fifty dollars
each may be reported in aggregate;
(4) The date when the property became payable, demandable or
returnable and the date of the last transaction with the owner
with respect to the property; and
(5) Other information which the state treasurer prescribes
by rule as necessary for the administration of this article.
(c) If the person holding property presumed abandoned is asuccessor to other persons who previously held the property for
the owner, or if the holder has changed his name while holding
the property, he shall file with his report all prior known names
and addresses of each holder of the property.
(d) The report shall be filed before the thirty-first day of
March of each year as of the thirty-first day of December next
preceding. The state treasurer may postpone the reporting date
upon written request by any person required to file a report.
(e) If the holder of property presumed abandoned under this
chapter knows the whereabouts of the owner, the holder shall,
before filing the annual report, communicate with the owner and
take necessary steps to prevent abandonment from being presumed.
All holders shall exercise due diligence, as defined in
subdivision (c), section one of this article, at least sixty days
but no more than one hundred twenty days prior to submission of
the report to ascertain the whereabouts of the owner if: (1) The
holder has in its records and address for the apparent owner
which the holder's records do not disclose to be inaccurate; and
(2) the property has a value of fifty dollars or more.
(f) Verification, if made by a partnership, shall be
executed by a partner; if made by an unincorporated association
or private corporation, by an officer; and if made by a public
corporation, by its chief fiscal officer.
(g) The initial report filed under this article shall
include all items of property which, under the provisions hereof,
would have been presumed abandoned on the effective date of this
article had this article been in effect on the first day of July,
one thousand nine hundred fifty-two.
(h) The state treasurer may at reasonable times and upon
reasonable notice examine the records of any person if he has
reason to believe that the person has failed to report property
that should have been reported pursuant to this section.
(i) Every person filing a report shall deliver or pay to the
state treasurer all abandoned property specified in the report,
at the time of the report.
If an examination of the records of a person results in
disclosure of property reportable and deliverable under this
section, the treasurer may assess the cost of the examination
against the holder at a rate established by administrative
regulation promulgated pursuant to chapter twenty-nine-a of this
code, but in no case may the charges exceed the value of the
property found to be reportable and deliverable.