H. B. 3259
(By Delegates Michael and Kominar )
[Introduced March 25, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §11-10A-11 of the Code of West
Virginia, 1931, as amended, relating to small claims hearings
by the Office of Tax Appeals; and requiring concurrence of
both the Tax Commissioner and the Office of Tax Appeals for a
dispute to be conducted in a small claims hearing.
Be it enacted by the Legislature of West Virginia:
That §11-10A-11 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 10A. WEST VIRGINIA OFFICE OF TAX APPEALS.
§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 ten thousand dollars 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.
NOTE: This bill would require the Tax Commissioner's consent
in order for a case to be conducted as a small claims hearing.
Currently, the law requires the Office of Tax Appeals, but not the
Tax Commissioner, to approve a taxpayer's choice to have its appeal
conducted in a small claims hearing. Since small claims are not
appealable to circuit court, current law mandates that the Tax
Commissioner participate in what is essentially binding arbitration without his or her consent.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would