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House Bill 2918 History
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ENROLLED
H. B. 2918
(By Delegates White and T. Campbell)
(By Request of the Tax Division)
[Passed March 11, 2011; in effect ninety days from passage.]
AN ACT to amend and reenact §11-12-3, §11-12-5 and §11-12-86 of the
Code of West Virginia, 1931, as amended, all relating to
permanent business registrations; changing the procedure for
suspending, revoking or canceling a business registration
certificate; permitting a registrant to appeal an order to
suspend, revoke or cancel a business registration certificate;
permitting a business registration certificate to be revoked,
canceled or suspended for nonpayment of property taxes;
changing the sparkler and novelty registration fee from annual
one to an initial one; and updating permanent registration
language.
Be it enacted by the Legislature of West Virginia:
That §11-12-3, §11-12-5 and §11-12-86 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-3. Business registration certificate required; tax levied;
exemption from registration; exemption from tax;
penalty.
(a) Registration required. -- No person shall, without a
business registration certificate, engage in or prosecute, in the
State of West Virginia, any business activity without first
obtaining a business registration certificate from the Tax
Commissioner of the State of West Virginia. Additionally, before
beginning business in this state, such person:
(1) If a transient vendor, shall comply with the provisions of
sections twenty through twenty-five of this article.
(2) If a collection agency, shall comply with the provisions
of article sixteen, chapter forty-seven of this code.
(3) If an employment agency, shall comply with the provisions
of article two, chapter twenty-one of this code.
(4) If selling drug paraphernalia, as defined in section
three, article nineteen, chapter forty-seven of this code, shall
comply with the provisions of article nineteen, chapter forty-seven
of this code.
Persons engaging in or prosecuting other business activities
in this state may also be subject to other provisions of this code
which they must satisfy before commencing or while engaging in a
business activity in this state.
(b) Tax levied. -- The business registration tax hereby levied
shall be $15 for each annual business registration certificate:
Provided, That for registration periods beginning on or after July
1, 1999, the business registration tax shall be $30, except as
otherwise provided in this article:
Provided, however, That after
June 30, 2010, the business registration tax shall be $30.00 for
each business registration certificate, including business
registration certificates granted upon application after cessation
of a business, or after suspension, revocation, cancellation or
lapse of a prior business registration certificate.
(1) A separate business registration certificate is required
for each fixed business location from which property or services
are offered for sale or lease to the public as a class, or to a
limited portion of the public; or at which customer accounts may be
opened, closed or serviced.
(2) A separate business registration certificate is not
required for each coin-operated machine. A separate certificate is
required for each location from which making coin-operated machines
available to the public is itself a business activity.
(3) A business that sells tangible personal property or
services from or out of one or more vehicles needs a separate
business registration certificate for each fixed location in this
state from or out of which business is conducted. A copy of its
business registration certificate shall be carried in each vehicle and publicly displayed while business is conducted from or out of
the vehicle.
(4) A business registration certificate is required by
subsection (a) of this section for every person engaging in
purposeful revenue generating activity in this state. If that
activity is one for which an employment agency license or a
collection agency license or a license to sell drug paraphernalia
is required and no other business activity is conducted by that
person at each business location for which the employment agency
license or collection agency license or license to sell drug
paraphernalia is issued, then only that license is required for
each such activity conducted by the licensee at each business
location. However, if, in addition to the activity for which each
license is issued, some other business activity is conducted by
the licensee at such business location, a separate business
registration certificate is required to conduct the nonlicensed
activity.
(c) Exemption from registration. -- Any person engaging in or
prosecuting business activity in this state:
(1) Who is not required by law to collect or withhold a tax
administered under article ten of this chapter; and
(2) Who does not claim exemption from payment of taxes imposed
by articles fifteen and fifteen-a of this chapter, shall be exempt
from both registration and payment of the tax imposed by this article, if such person had gross income from business activity of
$4,000 or less during that person's tax year for state income tax
purposes immediately preceding the registration period for which a
registration certificate is otherwise required by this article.
(d) Exemptions from payment of tax. -- Any person engaging in
or prosecuting any business activity in this state who is required
by law to collect or withhold any tax administered under article
ten of this chapter; or who claims exemption from payment of the
taxes imposed by articles fifteen and fifteen-a of this chapter,
shall be required to obtain a business registration certificate,
as herein before provided, but shall be exempt from payment of the
tax levied by subsection (b) of this section, if such person is:
(1) A person who had gross income from business activity of
$4,000 or less during that person's tax year for state income tax
purposes immediately preceding the registration period for which a
registration certificate is required under this article.
(2) An organization which qualifies, or would qualify, for
exemption from federal income taxes under section 501 of the
Internal Revenue Code of 1986, as amended.
(3) This state, or a political subdivision thereof, selling
tangible personal property, admissions or services, when those
activities compete with or may compete with the activities of
another person.
(4) The United States, or an agency or instrumentality thereof, which is exempt from taxation by the states.
(5) A person engaged in the business of agriculture and
farming: Provided, That no producer or grower selling products of
the farm, garden or dairy and not included within the definition of
business under subsection (a), section two of this article shall be
required to obtain a business registration certificate or pay the
business registration tax.
(6) A foreign retailer who is not a "retailer engaging in
business in this state" as defined in section one, article
fifteen-a of this chapter, who enters into an agreement with the
Tax Commissioner to voluntarily collect and remit use tax on sales
to West Virginia customers.
(e) Money penalty. -- Any person required to obtain a business
registration certificate under this section, who is exempt from
payment of the tax, as provided in subsection (d) of this section,
who does not obtain a registration certificate shall, in lieu of
paying the penalty imposed by section nine of this article, pay a
penalty of $15 for each business location for which a certificate
is needed: Provided, That application for business registration is
made and the applicable money penalty tendered to the Tax
Commissioner within fifteen days after such person receives written
notice from the Tax Commissioner that such person is required to
obtain a business registration certificate.
§11-12-5. Time for which registration certificate granted; power of Tax Commissioner to suspend, revoke or cancel
certificate; certificate to be permanent until
cessation of business for which certificates are
granted or revocation, suspension or cancellation by
the Tax Commissioner; penalty for involuntary loss of
license due to failure to pay required fees and taxes
relating to business.
(a) Registration period. -- All business registration
certificates issued under the provisions of section four of this
article are for the period of one year beginning July 1 and ending
June 30 of the following year: Provided, That beginning on or
after July 1, 1999, all business registration certificates issued
under the provisions of section four of this article shall be
issued for two fiscal years of this state, subject to the following
transition rule. If the first year for which a business was issued
a business registration certificate under this article began on
July 1 of an even-numbered calendar year, then the Tax Commissioner
may issue a renewal certificate to that business for the period
beginning July 1, 1999, and ending June 30, 2000, upon receipt of
$15 for each such one-year certificate. Notwithstanding any other
provisions of this code to the contrary, any certificate of
registration granted on or after July 1, 2010, shall not be subject
to the foregoing requirement that it be renewed, but shall be
permanent until cessation of the business for which the certificate of registration was granted or until it is suspended, revoked or
canceled by the Tax Commissioner. Notwithstanding any provision of
this code to the contrary, on or after July 1, 2010, reference to
renewal of the business registration certificate shall refer to the
issuance of a new business registration certificate pursuant to
expiration, cancellation or revocation of a prior business
registration certificate or to reinstatement of a business
registration certificate or to reinstatement of a business
certificate previously suspended by the Tax Commissioner. Subject
to the exemptions, exceptions and requirements other than the
$4,000 or less gross income exemption, set forth in section three
of this article, on or after July 1, 2010, the business
registration certificate shall be issued upon payment of a tax of
$30 to the Tax Commissioner for new issuances of the business
registration certificate or for issuances of the business
registration certificate pursuant to expiration, cancellation or
revocation of a prior business registration certificate or for
reinstatement of a business registration certificate previously
suspended by the Tax Commissioner, along with any applicable
delinquent fees, interest, penalties and additions to tax. Subject
to the exemptions, exceptions and requirements set forth in section
three of this article, the $30 tax shall be paid each and every
time there is an issuance, reissuance or reinstatement of a
business registration certificate, along with any applicable delinquent fees, interest, penalties and additions to tax:
Provided, That the $4,000 or less gross income exemption set forth
in subdivision (1), subsection (d), section three of this article
does not apply.
(b) Revocation, cancellation or suspension of certificate. --
(1) The Tax Commissioner may cancel, revoke or suspend a
business registration certificate at any time during a registration
period if:
(A) The registrant filed an application for a business
registration certificate, or an application for renewal thereof,
that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a
tax return or to report information required by the Tax
Commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any
tax, additions to tax, penalties or interest, or any part thereof,
when they became due and payable under this chapter, determined
with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the Tax
Commissioner on or before its due date, determined with regard to
any authorized extension of time for payment, any tax imposed by
this chapter which the registrant collects from any person and
holds in trust for this state.
(E) The registrant abused the privilege afforded to it by article fifteen or fifteen-a of this chapter to be exempt from
payment of the taxes imposed by such articles on some or all of the
registrant's purchases for use in business upon issuing to the
vendor a properly executed exemption certificate, by failing to
timely pay use tax on taxable purchase for use in business or by
failing to either pay the tax or give a properly executed exemption
certificate to the vendor.
(F) The registrant has failed to pay in full delinquent
personal property taxes owing for the calendar year.
(2) On or after July 1, 2010, a prospective registrant or a
former registrant for which a business registration certificate has
been suspended, canceled or revoked pursuant to the provisions of
this article may apply for a new business registration certificate
or for reinstatement of a suspended business registration
certificate upon payment of all outstanding delinquent fees, taxes,
interest, additions to tax and penalties, in addition to payment to
the Tax Commissioner of a penalty in the amount of $100. The Tax
Commissioner may issue a new business registration certificate or
reinstate a suspended business registration certificate if the
prospective or former registrant has provided security acceptable
to and authorized by the Tax Commissioner, payable to the Tax
Commissioner, sufficient to secure all delinquent fees, taxes,
interest, additions to tax and penalties owed by the prospective
registrant. The Tax Commissioner may issue a new business registration certificate or reinstate a suspended business
registration certificate if the prospective or former registrant
has entered into a payment plan approved by the Tax Commissioner by
which liability for all delinquent fees, taxes, interest, additions
to tax and penalties will be paid in due course and without
significant delay. Failure of any registrant to comply with a
payment plan pursuant to this provision shall be grounds for
immediate suspension or revocation of the registrant's business
registration certificate.
(3) On and after July 1, 2010, a prospective registrant or a
former registrant for which a business registration certificate has
been suspended, canceled or revoked pursuant to the provisions of
any article of this code other than this article may apply for a
new business registration certificate or for reinstatement of a
suspended business registration certificate, only if the
prospective or former registrant has complied with all applicable
statutory and regulatory requirements for renewal, issuance or
reinstatement of the business registration certificate and upon
payment to the Tax Commissioner of a penalty in the amount of $100.
(4) Except pursuant to exceptions specified in this code,
before canceling, revoking or suspending any business registration
certificate, the Tax Commissioner shall give written notice of his
or her intent to suspend, revoke or cancel the business
registration certificate of the taxpayer, the reason for the suspension, revocation or cancellation and the effective date of
the cancellation, revocation or suspension. Written notice shall be
served on the taxpayer in accordance with section five-e, article
ten of this chapter not less than twenty days prior to the
effective date of the cancellation, revocation or suspension.
Acceptance of service of notice shall be deemed to have occurred if
completed as set forth in section five-e, article ten of this
chapter. The taxpayer may appeal cancellation, revocation or
suspension of its business registration certificate by filing a
petition for appeal with the Office of Tax Appeals within twenty
days immediately succeeding receipt of the service of notice to
suspend, revoke or cancel the business registration certificate.
The filing of a petition for appeal does not stay the effective
date of the suspension, revocation or cancellation. A stay may be
granted only after a hearing is held on a motion to stay filed by
the registrant upon finding that state revenues will not be
jeopardized by the granting of the stay. The Tax Commissioner may,
in his or her discretion and upon such terms as he or she may
specify, agree to stay the effective date of the cancellation,
revocation or suspension until another date certain.
(5) On or before July 1, 2005, the Tax Commissioner shall
propose for promulgation legislative rules establishing ancillary
procedures for the Tax Commissioner's suspension of business
registration certificates for failure to pay delinquent personal property taxes pursuant to paragraph (F), subdivision (1) of this
section. The rules shall at a minimum establish any additional
requirements for the provision of notice deemed necessary by the
Tax Commissioner to meet requirements of law; establish protocols
for the communication and verification of information exchanged
between the Tax Commissioner, sheriffs and others; and establish
fees to be assessed against delinquent taxpayers that shall be
deposited into a special fund which is hereby created and expended
for general tax administration by the Tax Division of the
Department of Revenue and for operation of the Tax Division. Upon
authorization of the Legislature, the rules shall have the same
force and effect as if set forth herein. No provision of this
subdivision may be construed to restrict in any manner the
authority of the Tax Commissioner to suspend such certificates for
failure to pay delinquent personal property taxes under paragraph
(C) or (F), subdivision (1) of this section or under any other
provision of this code prior to the authorization of the rules.
(c) Revocation, cancellation or suspension due to delinquent
personal property tax. -- The Tax Commissioner may revoke, cancel
or suspend a business registration certificate when informed in
writing, signed by the county sheriff, that personal property owned
by a registrant and used in conjunction with the business activity
of the a registrant is subject to delinquent property taxes. The
Tax Commissioner shall forthwith notify the registrant that the commissioner will revoke, cancel or suspend the registrant's
business registration certificate unless information is provided
evidencing that the taxes due are either exonerated or paid.
(d) Refusal to issue, revocation, suspension and refusal to
renew business registration certificate of alter ego, nominee or
instrumentality of a business that has previously been the subject
of a lawful refusal to issue, revocation, suspension or refuse to
renew. --
(1) The Tax Commissioner may refuse to issue a business
registration certificate, or may revoke a business registration
certificate or may suspend a business registration certificate or
may refuse to renew a business registration certificate for any
business determined by the Tax Commissioner to be an alter ego,
nominee or instrumentality of a business that has previously been
the subject of a lawful refusal to issue a business registration
certificate or of a lawful revocation, suspension or refusal to
renew a business registration certificate pursuant to this section,
and for which the business registration certificate has not been
lawfully reinstated or reissued.
(2) For purposes of this section, a business is presumed to be
an alter ego, nominee or instrumentality of another business or
other businesses if:
(A) More than twenty percent of the real assets or more than
twenty percent of the operating assets or more than twenty percent of the tangible personal property of one business are or have been
transferred to the other business or businesses, or are or have
been used in the operations of the other business or businesses, or
more than twenty percent of the real assets or more than twenty
percent of the operating assets or more than twenty percent of the
tangible personal property of one business are or have been used to
collateralize or secure debts or obligations of the other business
or businesses;
(B) Ownership of the businesses is so configured that the
attribution rules of either Internal Revenue Code section 267 or
Internal Revenue Code section 318 would apply to cause ownership of
the businesses to be attributed to the same person or entity; or
(C) Substantive control of the businesses is held or retained
by the same person, entity or individual, directly or indirectly,
or through attribution under paragraph (B) of this subdivision.
§11-12-86. Sparkler and novelty registration fee.
The Tax Commissioner shall establish a "Sparkler and Novelty
Registration Fee" which shall be charged all businesses licensed to
do business in the State of West Virginia desiring to sell
sparklers and novelties authorized for sale in section
twenty-three, article three, chapter twenty-nine of this code.
This fee shall run concurrent with the business registration
certificate set forth in section five of this article. This fee
shall not be prorated. Each business shall pay $15 for each registration and shall be issued a sticker or card by the Tax
Commissioner to be posted in a conspicuous position at the location
of the business which has paid the registration fee. This fee
shall be collected for each separate location where sparklers and
novelties are sold. The Tax Commissioner may, in his or her
discretion, require a separate certificate which shall be posted as
set forth herein, or provide that the evidence of compliance with
this section may be by a stamp or language added to the business
registration certificate or by embossing or writing imprinted on
the business registration certificate.