HB2005 HFA Fleischauer 1-23 revised

Delegate Fleischauer moves to amend the bill on page 2, by striking out Article 6L in its entirety and inserting in lieu thereof, the following:

“CHAPTER 11. TAXATION.

ARTICLE 13EE. Wireless technology business property TAX CREDIT.

§11-13EE-1. Short title.

This article shall be cited as the “Wireless Technology Business Tax Credit.”

§11-EE-2. Legislative findings and purpose.

The Legislature finds that the encouragement of economic growth through the expansion of wireless technology is an essential element in the economic development of West Virginia; that improvement of cellular services to state citizens in areas with poor or limited cellular and internet service is vital to the financial, economic and educational interests of the State. In order to encourage expansion of personal wireless services, cellular telephone service, data services, internet service, wireless signal capacity for communications purposes, wireless voice communications services and wireless digital signal service throughout underserved areas of the state, a temporary tax credit to facilitate establishment of these facilities is in the public interest and will encourage economic growth and improve the quality of life for our citizens.

§11-13EE-3. Definitions.

(a) General. When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined.

(1) “Affiliate” means and includes all persons, as defined in this section, which are affiliates of each other when either directly or indirectly:

(A) One person controls or has the power to control the other, or

(B) A third party or third parties control or have the power to control two persons, the two thus being affiliates. In determining whether concerns are independently owned and operated and whether or not an affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

(2) “Commissioner” or “Tax Commissioner” means the Tax Commissioner of the State of West Virginia or the Tax Commissioner's delegate.

(3) “Corporation” means any corporation, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.

(4) “Delegate”, when used in reference to the Tax Commissioner, means any officer or employee of the Tax Division of the Department of Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.

(5) “Eligible taxpayer” means any telecommunications business:

(A) That is subject to the tax imposed under §§ 11-24-1 et seq. of this code

(B) That installs or causes to be installed a qualified communications tower.

(D) That has paid ad valorem property tax on such tower during the taxpayer’s corporate net income tax year.

“Eligible taxpayer” also means and includes those members of an affiliated group of taxpayers that fulfill all criteria specified in subdivision § 11-13EE-3(b)(5) and paragraphs §§ 11-13EE-3(b)(5)(A) and §§ 11-13EE-3(b)(5)(B) and §§ 11-13EE-3(b)(5)(C) and §§ 11-13EE-3(b)(5)(D), that are engaged in a unitary business, in which one or more members of the affiliated group is a person subject to the tax imposed under §§ 11-24-1 et seq. of this code. Affiliates not engaged in the unitary business do not qualify as eligible taxpayers.

(6) “Telecommunications business” means any business primarily engaged in business activity classified as having the six digit North American Industry Classification Code number 517312 that also paid ad valorem property tax on telecommunications towers to one or more West Virginia counties during the taxable year, either directly or pursuant to assessment by the Board of Public Works.

(7) “Natural person” or “individual” means a human being.

(8) “Partnership” and “partner” means and includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on and which is not a trust or estate, a corporation or a sole proprietorship. The term “partner” includes a member in a syndicate, group, pool, joint venture or organization.

(9) “Person” means and includes any natural person, corporation, limited liability company or partnership.

(10) “Personal wireless services” means personal wireless services as defined in 47 USCS § 332.

(11) “Qualified communications tower” or “qualified tower” means a communications tower located in a qualified geographic area, constructed on or after July 1, 2019 and on or before June 30, 2024.

(12) “Qualified geographic area” means a geographic area of this State that is underserved, and has poor or limited personal wireless services, cellular telephone service, data services, internet service, wireless signal capacity for communications purposes, wireless voice communications services or wireless digital signal service.

(13) “Related entity”, “related person”, “entity related to” or “person related to” means:

(A) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer;

(B) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer;

(C) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

(D) A member of the same controlled group as the taxpayer. For purposes of this article, “control,” with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation which entitles its owner to vote. “Control”, with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in Section 267(c) of the United States Internal Revenue Code, as amended: Provided That, paragraph (3), Section 267(c) of the United States Internal Revenue Code shall not apply.

(14) “Tax year” or “taxable year” means the tax year of the taxpayer for federal income tax purposes.

(15) “Taxpayer” means any person subject to the tax imposed under §§ 11-24-1 et seq. of this code.

(16) “Telecommunications tower” or “tower” means any building or structure typically significantly higher than its diameter, and high relative to surrounding terrain and buildings, that is used to provide, transmit or carry personal wireless services, cellular telephone service, data services, internet service, wireless signal capacity for communications purposes, wireless voice communications services or wireless digital signal service. A tower may be freestanding or may be attached to a building or larger structure, and may be fully sheathed or walled in or of skeleton framework, including, but not limited to lattice construction, monopole construction, guyed construction or sheathed construction, or a similar structure, upon which there is mounted an antenna or other equipment used for the purposes of receiving or transmitting, or both receiving and transmitting, cellular or wireless signal capacity for communications purposes, including personal wireless services, cellular telephone service, data services, internet service, wireless signal capacity for communications purposes, wireless voice communications services or wireless digital signal service. The term communications tower includes, but is not limited to any antenna and all associated equipment: Provided, That, the terms “communications tower” and “tower” do not include towers used for transmission of commercial broadcast radio or television. The term “communications tower” and “tower” do not include any building or structure on which the communications tower or tower is mounted that has any use, utility or purpose other than to provide personal wireless services, cellular telephone service, data services, internet service, wireless signal capacity for communications purposes, wireless voice communications services or wireless digital signal service: Provided however, That nothing in this definition shall be interpreted or construed to deny qualification of a tower for the tax credit authorized under this article because such tower is used for mounting or positioning communications antennae and telecommunications equipment of multiple users or multiple systems that provide personal wireless services, cellular telephone service, data services, internet service, wireless signal capacity for communications purposes, wireless voice communications services or wireless digital signal service.

(17) “Unitary business” means a unitary business as defined in §11-24-1 et seq. of this code.

§ 11-13EE-4. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit against the taxes imposed under §11-24-1 et seq. of this code, as determined under this article.

§11-13EE-5. Amount of credit allowed.

Any taxpayer who installs or causes to be installed a tower on property located in a qualified geographic area, constructed on or after July 1, 2019 and on or before June 30, 2024, which tower is owned by the taxpayer, and on which the eligible taxpayer has paid ad valorem property tax shall be allowed a credit in an amount equal of 80% of the construction costs of the tower, prorated over a five-year period. This credit shall reduce taxes paid by the taxpayer pursuant to §11-24-1 et seq., of this code.

(a) Credit allowed. — Eligible taxpayers shall be allowed a credit against the tax imposed under §§ 11-24-1 et seq. of this code, the application of which and the amount of which shall be determined as provided in this article.

(b) Amount of credit. — The amount of credit allowed to the eligible taxpayer is the amount equal to 80% of the amount of West Virginia ad valorem property tax paid on the value of the communications tower owned by the eligible taxpayer during the taxpayer’s corporate net income tax year.

§11-13EE-6. Carryover credit allowed; Tax Commissioner to promulgate rules.

If the amount of the credit exceeds the taxpayer's liability for the taxable year, the amount which exceeds the tax liability may be carried over and applied as a credit against the tax liability of the taxpayer pursuant to the provisions of article twenty-four of this chapter to each of the next 4 taxable years unless sooner used. The State Tax Commissioner shall consult with the Public Service Commission to identify areas of the State to designate as having poor or limited internet services, and promulgate legislative rules pursuant to the provisions of §29A-1-1 et seq. of this code regarding the locations eligible for the tax credit, method of claiming of the credit, and documentation necessary to claim the credit allowed by this article.”