H. B. 2685
(By Delegates Kiss, S. Cook, Farris,
Rutledge and P. White
)
(Originating in the House Committee on Finance)
[March 22, 1993]
A BILL to amend and reenact section five, article thirteen,
chapter eight of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, providing for a
separate classification of business activity for purposes of
determining municipal business and occupation privilege tax
liability.
Be it enacted by the Legislature of West Virginia:
That section five, article thirteen, chapter eight of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 13. TAXATION AND FINANCE.
§8-13-5. Business and occupation or privilege tax; limitation
on rates; effective date of tax; exemptions;
activity in two or more municipalities;
administrative provisions.
(a)
Authorization to impose tax.
--(1) Whenever any business
activity or occupation, for which the state imposed its annualbusiness and occupation or privilege tax under article thirteen,
chapter eleven of this code, prior to July one, one thousand nine
hundred eighty-seven, is engaged in or carried on within the
corporate limits of any municipality, the governing body thereof
shall have plenary power and authority, unless prohibited by
general law, to impose a similar business and occupation tax
thereon for the use of the municipality. (2) Municipalities may
impose a business and occupation or privilege tax upon every
person engaging or continuing within the municipality in the
business of aircraft repair, remodeling, maintenance,
modification and refurbishing services to any aircraft or to an
engine or other component part of any aircraft as a separate
business activity.
(b)
Maximum tax rates.
-- In no case shall the rate of such
municipal business and occupation or privilege tax on a
particular activity exceed the maximum rate imposed by the state,
exclusive of surtaxes, upon any business activities or privileges
taxed under sections two-a, two-b, two-c, two-d, two-e, two-g,
two-h, two-i and two-j, article thirteen of said chapter eleven,
as such rates were in effect under said article thirteen, on
January one, one thousand nine hundred fifty-nine, or in excess
of one percent of gross income under section two-k of said
article thirteen, or in excess of three tenths of one percent of
gross value or gross proceeds of sale under section two-m of said
article thirteen. The rate of municipal business and occupation
or privilege tax on the activity described in subdivision two,
subsection a of this section shall be ten one-hundredths of one
percent.
(c)
Effective date of local tax.
-- Any taxes levied
pursuant to the authority of this section may be made operative
as of the first day of the then current fiscal year or any date
thereafter:
Provided,
That any new imposition of tax or any
increase in the rate of tax upon any business, occupation or
privilege taxed under section two-e of said article thirteen
shall apply only to gross income derived from contracts entered
into after the effective date of such imposition of tax or rate
increase, and which effective date shall not be retroactive in
any respect:
Provided, however,
That no tax imposed or revised
under this section upon public utility services may be effective
unless and until the municipality provides written notice of the
same by certified mail to said public utility at least sixty days
prior to the effective date of said tax or revision thereof.
(d)
Exemptions.
-- A municipality shall not impose its
business and occupation or privilege tax on any activity that was
exempt from the state's business and occupation tax under the
provisions of section three, article thirteen of said chapter
eleven, prior to July one, one thousand nine hundred eighty-
seven, and determined without regard to any annual or monthly
monetary exemption also specified therein.
(e)
Activity in two or more municipalities.
-- Whenever the
business activity or occupation of the taxpayer is engaged in or
carried on in two or more municipalities of this state, the
amount of gross income, or gross proceeds of sales, taxable by
each municipality shall be determined in accordance with such
legislative regulations as the tax commissioner may prescribe.
It being the intent of the Legislature that multiple taxation ofthe same gross income, or gross proceeds of sale, under the same
classification by two or more municipalities shall not be
allowed, and that gross income, or gross proceeds of sales,
derived from activity engaged in or carried on within this state,
that is presently subject to state tax under section two-c or
two-h, article thirteen, chapter eleven of this code, which is
not taxed or taxable by any other municipality of this state, may
be included in the measure of tax for any municipality in this
state, from which the activity was directed, or in the absence
thereof, the municipality in this state in which the principal
office of the taxpayer is located. Nothing in this subsection
(e) shall be construed as permitting any municipality to tax
gross income or gross proceeds of sales in violation of the
constitution and laws of this state or the United States, or as
permitting a municipality to tax any activity that has a definite
situs outside its taxing jurisdiction.
(f) Where the governing body of a municipality imposes a tax
authorized by this section, such governing body shall have the
authority to offer tax credits from such tax as incentives for
new and expanding businesses located within the corporate limits
of the municipality.
(g)
Administrative provisions.
-- The ordinance of a
municipality imposing a business and occupation or privilege tax
shall provide procedures for the assessment and collection of
such tax, which shall be similar to those procedures in article
thirteen, chapter eleven of this code, as in existence on June
thirtieth, one thousand nine hundred seventy-eight, or to those
procedures in article ten, chapter eleven of this code, and shallconform with such provisions as they relate to waiver of
penalties and additions to tax.