HB3072 S EIM AM #1

Burrell 4483

The Committee on Energy, Industry and Mining moved to amend the bill by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 13DD. WEST VIRGINIA COAL EMPLOYMENT ENHANCEMENT ACT.

§11-13DD-1. Legislative finding.

The Legislature finds that this state and this region are blessed with large quantities of mineable coal that is suitable for use as fuel to generate electricity and for other industrial uses; that other coal producing states in the region offer incentives to businesses to consume coal produced in those states; that there are sound economic reasons for locating electric power generating facilities and other industrial facilities that consume coal in the coal fields; and that many West Virginia miners work in mines located in this state and that the state will benefit by encouraging additional production of West Virginia coal. Therefore, encouraging greater utilization of coal produced by West Virginia miners and consumed at West Virginia power plants and industrial facilities, is in the public interest and promotes the general welfare of the people of this state, in that it will increase employment opportunities for West Virginia residents.

§11-13DD-2. Definitions.

(1) Base year. -- The term “base year” means the calendar year ending on December 31, 2012.

(2) Eligible coal. -- The term “eligible coal” means coal produced from a mine located in this state and upon which the severance tax imposed by subsection (b), section three, article thirteen-a of this chapter was paid.

(3) Eligible taxpayer. -- The term “eligible taxpayer” means any person subject to any of the taxes imposed by article thirteen, article twenty-three, or article twenty-four of this chapter that during the tax year consumes qualified coal at a power plant or industrial facility located in this state.

(4) Qualified coal. – The term “qualified coal” means the number of tons of eligible coal consumed by an eligible taxpayer at a power plant or industrial facility located in this state during the tax year, in excess of the number of tons of eligible coal consumed at that power plant or industrial facility during the base year: Provided, That if the eligible taxpayer and any unitary affiliates with whom the eligible taxpayer files a combined income tax return under article twenty-four of this chapter consume during the tax year fewer tons of eligible coal at power plants and industrial facilities located outside of West Virginia than they consumed in such plants in the base year, then the amount of such decrease shall be deducted from the number of tons of qualified coal as computed above.

(5)Other terms used in this article have the meanings ascribed to them in section four, article ten of this chapter or section one, article thirteen of this chapter, unless the context in which it is used in this article clearly requires another meaning.

§11-13DD-3. Credit allowed; amount of credit; effective date.

(a) An eligible taxpayer shall be allowed a credit, as determined under subsection (b) of this section against its liability for taxes imposed by this state as provided in subsection (c) of this section.

(b) Amount of credit. - The credit allowed by this subsection is an amount equal to $3 per ton multiplied by the number of tons of qualified coal consumed by the eligible taxpayer during the tax year: Provided, That if the amount of severance tax imposed by subsection (b), section three, article thirteen-a of this chapter, and paid by the producer of the qualified coal was less than $3 per ton, then the amount of credit allowed to the eligible taxpayer by this section is an amount equal to the amount of severance tax paid per ton on the qualified coal multiplied by the number of tons of qualified coal consumed by the eligible taxpayer during the tax year.

(1) An eligible taxpayer that consumes qualified coal in the generation of electricity at a power plant located in this state and who pays the tax imposed by section two-o, article thirteen of this chapter on such generation, may apply the credit allowed under this article solely to reduce its taxes imposed or payable under section two-o, article thirteen of this chapter, for the tax year, determined before application of allowable credits against tax and the annual exemption. In no case may the credit allowed under this article be applied to reduce any tax imposed or payable under any other section of article thirteen of this chapter.

(2) An eligible taxpayer that consumes qualified coal in an industrial facility in this state who is not required to pay the tax imposed by section two-o, article thirteen of this chapter, may first apply the credit allowed under this article to reduce the taxes imposed by article twenty-three of this chapter for the taxable year, determined after application of the credit against tax provided in section seventeen of article twenty-three of this chapter, but before application of any other credit against tax. After application of any credit allowed under this article to reduce taxpayer’s liability for taxes imposed by article twenty-three of this chapter for the tax year, any unused credit is applied to reduce the taxes imposed by article twenty-four of this chapter, determined before application of allowable credits against tax.

(d) Unused credit. – If any credit remains after application of subsection (c) of this section, the amount thereof is carried forward to each ensuing tax year until used as provided in subsection (c) of this section or until the expiration of the third taxable year subsequent to the tax year. If any unused credit remains after the third subsequent year, the amount thereof is forfeited.

(e) Effective date. – The credit allowed by this section shall apply to tax liabilities for calendar years beginning on or after January 1, 2013.

§11-13DD-4. Certification by producers and sellers of qualified coal.

(a) A person selling eligible coal for consumption at a power plant or industrial facility located in this state during the tax year shall, if timely requested by the eligible taxpayer purchasing the coal, certify the number of tons of qualified coal sold and the amount of severance tax per ton paid on the coal. Such certifications for the tax year shall be provided to the eligible taxpayer no later than thirty days following the end of the calendar year.

(b) A producer of qualified coal who sells that coal to a purchaser for resale to an eligible taxpayer shall certify to his purchaser the amount of qualified coal sold and the amount of severance tax per ton paid on the eligible coal.

(c) All certifications shall be provided to the eligible taxpayer in the form prescribed by the tax commissioner and provide such information as he deems necessary for determining compliance with this article. An employee who signs the certification on behalf of a proprietorship, corporation, partnership or a group or combination acting as a unit shall be presumed to have authority to make and sign the certification on behalf of his or her employer.

§11-13DD-5. Credit recapture; interest; penalties; additions to tax; statute of limitations.

If it appears upon audit or otherwise that an eligible taxpayer has improperly claimed the credit allowed by this article, the amount improperly claimed and which the eligible taxpayer was not entitled to take shall be recaptured. Amended returns shall be filed for any tax year for which the credit was improperly taken. Any additional taxes due under this chapter shall be remitted with the amended return or returns filed with the tax commissioner, along with interest, as provided in section seventeen, article ten of this chapter, and a ten percent penalty, which may be waived by the tax commissioner if the taxpayer shows that the overclaimed amount was due to reasonable cause and not due to willful neglect, and such other penalties and additions to tax as may be applicable pursuant to the provisions of article ten of this chapter. Notwithstanding the provisions of article ten of this chapter, the statute of limitations for the issuance of an assessment of tax by the tax commissioner shall be five years from the date of the filing of any tax return on which this credit was taken or five years from the date of payment of any tax liability calculated pursuant to the assertion of this credit, whichever is later.

Adopted

Rejected