H. B. 2354
(By Delegates Jenkins, Kiss, Ashley, Thompson and Amores)
[Introduced February 3, 1995; referred to the
Committee on Finance.]
A BILL to repeal sections seven and thirty-two, article eleven,
chapter eleven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
sections four, five-a, eight, twelve, thirteen, thirteen-a,
thirteen-c, thirteen-k and fourteen, article ten of said
chapter; to further amend said article by adding thereto
sixteen new sections, designated sections one-a, one-b,
five-t, six-a, six-b, seven-b, seven-c, eight-a, nine-b,
eleven-a, eleven-b, eleven-c, twelve-a, thirteen-l,
fourteen-c and fourteen-d; to amend and reenact sections
three, seventeen, seventeen-a, nineteen, twenty and twenty-seven, article eleven of said chapter; to further
amend said article by adding thereto a new section,
designated section forty-three; and to amend and reenact
section one, article ten-c, chapter thirty-eight of said
code, all relating generally to tax procedures and
administration, providing for taxpayer bill of rights;
taxpayer problems resolution program; definitions; audits
and investigations; disclosure of rights of taxpayers;
notice of proposed assessment; explanation of proposed
assessment and appeal rights to accompany notice of proposed
assessment and notice of assessment; abatement of interest
attributable to errors and delays by tax division; abatement
of any penalty or addition to tax attributable to written
advice by tax commissioner; petition for reassessments;
review of jeopardy levy or jeopardy assessment procedures;
explanation of appeal rights to accompany administrative
decision; explanation of collection remedies and taxpayer
rights; agreements for payment of tax liability in
installments; extension of time for paying tax; liens,
release; subordination; foreclosure; administrative appeal of liens; levy and distraint; property exempt from levy;
sale of seized property; authority to release levy and
return property; reimbursement of bank and merchant charges
due to erroneous levy; overpayments, credits and refunds;
prompt payment of refunds of personal and corporate net
income tax; imposition of estate tax; special lien for
estate tax; discharge of nonresident decedent's real
property in absence of ancillary administration; final
accounting delayed until liability for tax determined;
liability of personal representatives; recordation necessary
for priority of liens in favor of state, political
subdivision or municipality, procedures for administration
and collection of taxes and fees administered under West
Virginia tax procedure and administration act and as to such
adding the "West Virginia Taxpayer Bill of Rights Act of
1992;" and specifying effective dates.
Be it enacted by the Legislature of West Virginia:
That sections seven and thirty-two, article eleven, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, be repealed; that sections four, five-a, eight, twelve, thirteen, thirteen-a, thirteen-c, thirteen-k and
fourteen, article ten of said chapter be amended and reenacted;
that said article be further amended by adding thereto sixteen
new sections, designated sections one-a, one-b,
five-t, six-a,
six-b, seven-b, seven-c, eight-a, nine-b, eleven-a, eleven-b,
eleven-c, twelve-a, thirteen-l, fourteen-c
and fourteen-d; that
sections three, seventeen, seventeen-a, nineteen, twenty and
twenty-seven, article eleven of said chapter be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section forty-three; and that section
one, article ten-c, chapter thirty-eight of said code be amended
and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-1a. Taxpayer rights.
(a) There is hereby created a West Virginia taxpayer bill of
rights to guarantee that the rights, privacy and property of West
Virginia taxpayers are adequately safeguarded and protected
during administration, collection and enforcement of taxes
administered under this article.
(b) The West Virginia taxpayer bill of rights compiles, in one section, brief but comprehensive statements which explain, in
simple nontechnical terms, the rights and obligations of the tax
division of the department of tax and revenue and taxpayers.
Rights afforded to taxpayers to assure that their privacy and
property are safeguarded and protected during administration,
collection and enforcement are available only insofar as they are
implemented elsewhere in this article, this code or regulations
of the tax commissioner. The rights so guaranteed West Virginia
taxpayers in this article or in regulations of the tax
commissioner are:
(1) The right to available information and prompt, accurate
responses to questions and requests for tax assistance.
(2) The right to request assistance from a taxpayers' rights
advocate of the tax division, who shall be responsible for
facilitating the resolution of taxpayer complaints and problems
not resolved through normal administrative channels within the
tax division, including taxpayer complaints regarding
unsatisfactory treatment by tax division employees. The
taxpayers' rights advocate may issue a stay order if a taxpayer
has suffered, or is about to suffer, irreparable loss as a result of action by the tax division.
(3) The right to be represented or advised by counsel or
other qualified representatives at any time in administrative
interactions with the tax division, the right to procedural
safeguards with respect to recording of interviews during tax
audits, preassessment conferences, hearings or collection
activities conducted by tax division employees.
(4) The right to have audits, inspections of records and
interviews conducted at a reasonable time and place except in
criminal and internal investigations.
(5) The right to abatement of penalty attributable to any
tax administered under this article, when taxpayer reasonably
relies upon written advice furnished to the taxpayer by the tax
division through authorized representatives in response to the
taxpayer's specific written request which provided adequate and
accurate information.
(6) The right to abatement of interest attributable to any
taxes administered under this article, when taxpayer reasonably
relies upon written advice furnished to the taxpayer by the tax
division through authorized representatives in response to the taxpayer's specific written request which provided adequate and
accurate information.
(7) The right to obtain simple, nontechnical statements
which explain the procedures, remedies and rights available
during audits, appeals and collection proceedings, including, but
not limited to, the rights pursuant to this taxpayer bill of
rights.
(8) The right to be provided with a narrative description
which explains the basis of audit changes, proposed assessments,
assessments and denials of claims for refund; identifies any
amount of tax, interest, additions to tax or penalty due; and
states the consequences of taxpayer's failure to comply with the
notice.
(9) The right to be informed of impending collection actions
which require sale or seizure of property, or freezing of assets,
except jeopardy assessments and jeopardy levies, and the right to
at least thirty days' notice in which to pay the liability or
seek further review.
(10) The right to not have a jeopardy assessment issued
unless delay will endanger collection and, after a jeopardy assessment is issued, the right to have an immediate review of
the decision to issue a jeopardy assessment.
(11) The right to seek review, through formal or informal
proceedings, of any adverse decision relating to a determination
in the audit or collections processes, and the right to seek a
reasonable administrative stay of enforcement actions while the
taxpayer pursues other administrative remedies available under
West Virginia law.
(12) The right to have the taxpayer's tax information kept
confidential except as otherwise specified in this article.
(13) The right to procedures for retirement of tax
obligations by installment payment agreements which recognize
both the taxpayer's financial condition and the best interests of
the state, provided the taxpayer gives accurate, current
information and meets all other tax obligations when they are
due.
(14) The right to procedures for requesting cancellation,
release or modification of liens recorded by the tax division and
for requesting that any lien which is filed in error be so noted
on the lien release recorded by the tax division, in public notice, and in a notice to any credit agency at the taxpayer's
request.
(15) The right to procedures which assure that the
individual employees of the tax division are not paid, evaluated
or promoted on the basis of the amount of assessment or
collections from taxpayers.
(16) The right to have uncontested timely filed claims for
refund of taxes administered under this article promptly refunded
to the taxpayer and to be paid interest when such refunds are not
promptly paid.
(17) The right to an action at law, within the limitations
of sovereign immunity, to recover damages against the state or
the tax division for injury caused by the wrongful or negligent
act or omission of a tax division officer or employee.
(18) The right of the taxpayer or the division, as the
prevailing party in a judicial or administrative action brought
or maintained without the support of justifiable issues of fact
or law, to recover all costs of the administrative or judicial
action, including reasonable attorney's fees, and of the tax
division and taxpayer to settle such claims through negotiations.
(19) The right to have the division begin and complete its
audits in a timely and expeditious manner after notification of
intent to audit provided taxpayer, or taxpayer's representative,
does not unreasonably delay or hinder the audit.
§11-10-1b. Taxpayer problem resolution program.
(a)
General. -- A taxpayer problem resolution program shall
be available to taxpayers to facilitate the prompt review and
resolution of taxpayer complaints and problems which have not
been addressed or remedied through normal administrative
proceedings or operating procedures and to assure that taxpayer
rights as safeguarded and protected during determination and
collection processes.
(b)
Taxpayers' rights advocate. -- The tax commissioner
shall designate a taxpayers' rights advocate and adequate staff
to administer the taxpayer problem resolution program.
(c)
Taxpayer assistance orders. -- (1) The taxpayers' rights
advocate may, with or without formal written request from the
taxpayer, issue a taxpayer assistance order that suspends or
stays actions or proposed actions by the tax division when a
taxpayer suffers or is about to suffer a significant hardship as a result of a tax determination, collection or enforcement
process.
(2) Relief or remedy may be granted by a taxpayer assistance
order only as an extraordinary measure. The process shall not be
used to contest the merits of a tax liability or as a substitute
for informal protest procedures or normal administrative or
judicial proceedings for the review of a tax assessment or
collection action of denial of a claim for refund or credit.
(d)
Tolling of period of limitations. -- (1) When the
request for a taxpayer assistance order relates to an impending
assessment and the request for such order is made within thirty
days of the running of the period of limitations on assessments,
the running of such period of limitations shall be tolled from
the date of a taxpayer's request for a taxpayer assistance order
until either the date the request is denied or the date specified
in the taxpayer assistance order, whichever is applicable.
(2) When the request for a taxpayer assistance order relates
to an impending collection process and the request for such order
is made within thirty days of the running of the period of
limitations on collections, the running of such period of limitations shall be tolled from the date of a taxpayer's request
for a taxpayer assistance order until either the date the request
is denied or the date specified in the taxpayer assistance order,
whichever is applicable.
§11-10-4. Definitions.
For the purpose of this article, the term:
(a) "Audit" means the examination of a taxpayer's return or
return information as defined in section five-d of this article,
or the inspection of a taxpayer's books, records, memoranda or
accounts, for the purpose of determining liability for a tax (or
fee) administered under this article.
(b) "Fee" or "fees" includes within the meaning thereof any
fee expressly administered under this article, including
additions, penalties and interest imposed by this article with
respect to such fee or fees, unless the intention to give the
same a more limited meaning is disclosed by the context in which
the term is used.
(c) "Delegate" when used in the phrase "tax commissioner or
his or her delegate" means any officer, employee or agency of the
tax division of the department of tax and revenue duly authorized by the tax commissioner directly or indirectly by one or more
redelegations of authority to perform the function mentioned or
described in the context; and when used with reference to any
other officer of this state, it shall be similarly construed.
(d) "Feepayer" means any person required to file a return
for any fee administered under this article or any person liable
for the payment of any fee administered under this article.
(e) "Fiduciary" means a guardian, trustee, executor,
administrator, receiver, conservator or any person acting in any
fiduciary capacity for any person.
(f) "Officer or employee of this state" includes, but shall
not be limited to, any former officer or employee of the state of
West Virginia.
(g) "Person" includes, but is not limited to, any
individual, firm, partnership, limited partnership, limited
liability partnership, limited liability company, copartnership,
joint adventure, association, corporation, municipal corporation,
organization, receiver, estate, trust, guardian, executor,
administrator and also any officer, employee or member of any of
the foregoing who, as such officer, employee or member, is under a duty to perform or is responsible for the performance of an act
prescribed by the provisions of this article or by the provisions
of any other article or section of this code which imposes a tax
(or fee) administered by the tax commissioner under this article,
unless the intention to give a more limited or broader meaning is
disclosed by the context of this article or any of the other
articles of this code which impose taxes (or fees) administered
by the tax commissioner under this article.
(h) "Secretary" or "secretary of tax and revenue." --
(1) "Secretary of tax and revenue" means the secretary of
the West Virginia department of tax and revenue, personally, and
shall not include any delegate of the secretary.
(2) "Secretary" means the secretary of the department of tax
and revenue or his or her delegate.
(i) "State" means any state of the United States or the
District of Columbia.
(j) "Tax" or "taxes" includes within the meaning thereof
taxes specified in section three of this article, additions to
tax, penalties and interest, unless the intention to give the
same a more limited meaning is disclosed by the context in which the term is used. "Tax" also includes any other tax imposed by
this code that is expressly administered under this article.
(k) "Tax commissioner" or "commissioner" means the tax
commissioner of the state of West Virginia or his or her
delegate.
(l) "Taxpayer" means any person required to file a return
for any tax administered under this article or any person liable
for the payment of any tax administered under this article.
(m) "Tax administered under this article" means any tax to
which this article applies as set forth in section three of this
article and includes any fee imposed by this code that is
expressly administered under this article.
(n) "Tax division" means the division of the West Virginia
department of tax and revenue previously known as the state tax
department.
(o) "This code" means the code of West Virginia, one
thousand nine hundred thirty-one, as amended.
(p) "This state" means the state of West Virginia.
§11-10-5a. Audits and investigations.
(a)
In general. -- For the purpose of: (1) Ascertaining the correctness of any tax (or fee) return or assessment; (2) making
an estimate of any person's liability for any tax (or fee)
administered under this article; or (3) collecting any tax (or
fee) due and payable under this article; and for the further
purpose of conducting the hearings provided for in section nine
or nine-a of this article, the tax commissioner shall have the
power to examine or cause to be examined, by any agent or
representative designated by the tax commissioner, any books,
papers, records, memoranda, inventory or equipment bearing upon
the matters required to be included in a required return, may
make test checks of tax yield, and may require the attendance of
the person rendering the return or the attendance of any other
person having knowledge of the matters contained therein, and may
take testimony and may require material proof, with power to
administer oaths to such person or persons.
(b)
Time and place of examination. -- The time and place of
examination shall be such time and place as may be fixed by the
tax commissioner and as are reasonable under the circumstances.
The person being examined shall be given reasonable notice of the
date, time and place of the examination and may request and be granted changes to the noticed date, time and place of the
examination, as necessary.
(c)
Restrictions on examination of taxpayer. -- No person
shall be subject to unnecessary examination or investigation
under this section.
(d)
Procedures involving taxpayer interviews. --
(1)
Recording of interviews by taxpayer. -- Any officer or
employee of the tax division in connection with any in-person
interview with any taxpayer (or feepayer) relating to the
determination or collection of any tax (or fee) administered
under this article shall, upon request of such person, allow such
person or his or her representative to make an audio recording of
such interview at his or her own expense and with his or her own
equipment.
(2)
Explanation of process. -- An officer or employee of the
tax division shall at least ten days before the initial interview
provide to the taxpayer (or feepayer):
(A) In the case of an in-person interview with the taxpayer
(or feepayer) relating to the determination of any tax (or fee),
an explanation of the audit process and the taxpayer's (or feepayer's) rights under such process; or
(B) In the case of an in-person interview with the taxpayer
(or feepayer) relating to the collection of any tax (or fee), an
explanation of the collection process and the taxpayer's (or
feepayer's) rights under such process.
(C)
Right of consultation. -- If the taxpayer (or feepayer)
clearly states to an officer or employee of the tax division
during any interview (other than an interview initiated by a
subpoena or subpoena duces tecum issued under section five-b of
this article) that the taxpayer wishes to consult with an
attorney, certified public accountant or other person permitted
to represent the taxpayer before the United States Internal
Revenue Service, such officer or employee shall suspend such
interview whether or not the taxpayer (or feepayer) may have
answered one or more questions.
(e)
Representatives holding power of attorney. -- Any
attorney, certified public accountant or other tax practitioner
who has a written power of attorney executed by the taxpayer (or
feepayer) may be authorized by such person to represent the
taxpayer (or feepayer) in any interview under this section. An officer or employee of the tax division may not require the
taxpayer (or feepayer) to accompany the representative in the
absence of a subpoena or subpoena duces tecum issued to the
taxpayer (or feepayer) under section five-b of this article.
This subsection shall not be construed as authorizing anyone to
engage in the unauthorized practice of law before the tax
commissioner.
(f)
Criminal investigations exception. -- Subsections (d)
and (e) of this section shall not apply to criminal
investigations or investigations relating to the integrity of any
officer or employee of the tax division.
§11-10-5t. Disclosure of rights of taxpayers.
(a)
In general. -- The commissioner shall, as soon as
practicable, prepare a brief but comprehensive statement in
simple and nontechnical language which explains:
(1) The rights of the taxpayer (or feepayer) and the
obligations of the tax commissioner during an audit;
(2) The procedures by which a taxpayer (or feepayer) may
appeal any adverse decision of the tax commissioner;
(3) The procedures for filing and prosecuting claims for refund and for filing taxpayer complaints; and
(4) The procedures which the tax commissioner may use in
enforcing the taxes and fees administered under this article
(including assessment, jeopardy assessment, levy and distraint
and enforcement of liens).
(b) This statement shall be provided to taxpayers (or
feepayers) with the initial notice of audit, the notice of
proposed assessment, the notice of assessment; and prior to
initiating collection under section eleven, twelve or thirteen of
this article. The tax commissioner shall take such actions as
the commissioner deems appropriate to ensure that such
distribution does not result in multiple statements being sent to
any one taxpayer (or feepayer).
§11-10-6a. Notice of proposed assessment.
(a)
In general. -- If the tax commissioner determines that
there is a deficiency with respect to any tax (or fee)
administered under this article, then, except as provided in
subsection (c) of this section, at least thirty days prior to
making an assessment under section seven of this article, the tax
commissioner shall notify the taxpayer (or feepayer) in writing of the amount of the deficiency and that the commissioner
proposes to make an assessment. This notice shall be served by
regular mail or by personal service.
(b)
Adjustments to proposed assessment. -- The tax
commissioner shall consider all returns, payments, other
information and documentation submitted by the taxpayer in
response to the notice of proposed assessment and shall make any
adjustment(s) that the commissioner deems to be appropriate to
the amount of the proposed assessment.
(c)
Exceptions. -- The provisions of this section shall not
apply:
(1) To assessment of deficiencies due to mathematical or
clerical errors, the procedure for which is provided in
subsection (a), section six of this article;
(2) To collection of the balance due shown on a
mathematically correct return filed by the taxpayer (or
feepayer), the procedure for which is provided in subsection (b),
section six of this article;
(3) To jeopardy assessments; or
(4) To amended assessments.
(d)
Suspension of running of period for issuance of
assessment. -- Issuance of a notice of proposed assessment within
sixty days before expiration of the period prescribed in section
fifteen of this article for issuance of a notice of assessment,
shall automatically extend for ninety days the period within
which notice of assessment may be issued.
§11-10-6b. Explanation of proposed assessment and appeal rights
to accompany notice of proposed assessment and
notice of assessment.
General rule. -- Whenever a notice of proposed assessment is
given under section six-a of this article, or notice of
assessment is given under section seven of this article, the tax
commissioner shall provide to the taxpayer (or feepayer):
(1) A written explanation of the reason(s) for the notice
and the reasons for imposition of interest, additions to tax (or
fee) or penalties;
(2) A written explanation of the taxpayer's (or feepayer's)
right to protest the notice, including the steps required to
request administrative review by the tax commissioner.
(3) A written explanation of the collection remedies
available to the tax commissioner if the taxpayer does not file a timely petition for reassessment and does not timely pay an
assessment.
§11-10-7b. Abatement of interest attributable to errors and
delays by tax division.
(a)
In general. --
In the case of any interest due on:
(1) Any deficiency attributable, in whole or in part, to any
error or delay determined by the tax commissioner to have been
caused by an officer or employee of the tax division (acting in
his or her official capacity) in performing a ministerial act; or
(2) Any payment of any tax (or fee) assessed under section
seven of this article to the extent that any error or delay in
such payment is determined by the tax commissioner to be
attributable to an officer or employee of the tax division
(acting in his or her official capacity) being erroneous or
dilatory in performing a ministerial act, the tax commissioner
may abate all or any part of such interest for any period. For
purposes of the preceding sentence, an error or delay shall be
taken into account only if no significant aspect of such error or
delay can be attributable to the taxpayer (or feepayer) involved,
and after the tax division has contacted the taxpayer (or feepayer) in writing with respect to such deficiency or payment.
(b)
Interest abated with respect to erroneous refund check.
-- The tax commissioner may abate the interest that accrued under
section seventeen of this article on any erroneous refund until
the date demand for repayment is made, unless the taxpayer (or a
related party) has in any way caused such erroneous refund.
§11-10-7c. Abatement of any penalty or addition to tax
attributable to written advice by tax commissioner.
(a)
In general. -- The tax commissioner shall abate any
portion of any penalty or addition to tax (or fee) attributable
to erroneous advice furnished to the taxpayer (or feepayer) in
writing by an officer or employee of the tax division, acting in
such officer's or employee's official capacity.
(b)
Limitations. -- (1) Subsection (a) of this section shall
apply only if the tax commissioner finds that all of the
following conditions are satisfied:
(1) The written advice was reasonably relied upon by the
taxpayer (or feepayer) and was in response to a specific written
request of the taxpayer (or feepayer); and
(2) The portion of the penalty or addition to tax (or fee) did not result from a failure by the taxpayer (or feepayer) to
provide adequate or accurate information.
(c) Any person seeking relief under this section shall file
with the commissioner all of the following:
(1) A copy of the person's written request to the
commissioner and a copy of the commissioner's written advice;
(2) A statement signed under penalty of perjury setting
forth the facts on which the claim is based;
(3) Any other information which the commissioner may
require.
§11-10-8. Notice of assessment; petition for reassessment within
sixty days; finality of assessment; payment of
assessment; effective date.
(a)
Notice of assessment. -- The tax commissioner shall give
the taxpayer written notice of any assessment, or any amended or
supplemental assessment, made pursuant to this article. The
assessment, or amended or supplemental assessment, as the case
may be, shall become final and conclusive of the liability of the
taxpayer and shall not be subject to either administrative or
judicial review under the provisions of section nine or nine-a of
this article and section ten of this article unless the taxpayer to whom a notice of assessment, or notice of amended or
supplemental assessment, is given shall, within sixty days after
service thereof (except in the case of jeopardy assessments as to
which the time for filing a petition is specified in section
seven of this article) either of the following:
(1)
Petition for reassessment. -- Personally, or by
certified mail, files with the tax commissioner a petition in
writing, verified under oath by the taxpayer, or taxpayer's duly
authorized agent having knowledge of the facts, setting forth
with particularity the items of the assessment objected to,
together with the reason for such objections; or
(2)
Payment of assessment. -- Personally, or by certified
mail, remits to the tax commissioner the total amount of the
assessment, or the amended or supplemental assessment, including
such additions to tax and penalties as may have been assessed,
and the amount of interest due.
(b)
Finality of assessment. -- Except for jeopardy
assessments, the amount of an assessment, or an amended or
supplemental assessment, shall be due and payable on the day
following the date upon which the assessment, or the amended or supplemental assessment, becomes final. Payment of the amount of
the assessment, or the amended or supplemental assessment, as
provided in subdivision (2) above within sixty days after service
of notice of such assessment, or such amended or supplemental
assessment, shall not prohibit or otherwise bar the taxpayer from
filing a claim for refund or credit, under the provisions of
section fourteen of this article within two years after the date
the tax was paid.
(c)
Payment of assessment after petition for reassessment
filed. -- A taxpayer who has timely filed a petition for
reassessment may, at any time prior to issuance of the
administrative decision under section nine or nine-a of this
article, pay under protest the amount of the assessment, or the
amended or supplemental assessment, including any additions to
tax or penalties that may have been assessed, and the amount of
interest due. Upon such payment, the contested case shall
thereafter be treated for all purposes as a petition for refund:
Provided, That if payment is made after the administrative
hearing under section nine or nine-a of this article has
commenced or concluded, a new hearing shall not be held, but the record thereof shall be properly amended by the tax commissioner
to show that the amount assessed has been paid under protest by
the taxpayer and that the petition for reassessment previously
filed under this section is now to be treated as a petition for
refund filed under section fourteen of this article.
(d)
Effective date: -- (1) This section, as amended in the
year one thousand nine hundred eighty-six, shall apply to all
assessments (including amended and supplemental assessments)
which are issued after the first day of July, one thousand nine
hundred eighty-six, and to all assessments issued prior to such
effective date which have not become final as provided in this
section.
(2) This section, as amended in the year one thousand nine
hundred ninety-four, shall take effect on the first day of July
of such year.
§11-10-8a. Review of jeopardy levy or jeopardy assessment
procedures.
(a)
Administrative review. --
(1)
Information to taxpayer. -- At the time a jeopardy
assessment is made under subsection (b), section seven of this article, or a jeopardy levy is made under subsection (a), section
thirteen of this article, the tax commissioner shall provide the
taxpayer (or feepayer) with a written statement of the
information upon which the tax commissioner relies in making the
jeopardy assessment or jeopardy levy.
(2)
Request for review. -- Within thirty days after the day
on which the taxpayer (or feepayer) is furnished the written
statement described in subdivision (1) of this subsection, the
taxpayer (or feepayer) may request the tax commissioner to review
the action taken and redetermine whether or not collection of the
tax (or fee) will be jeopardized by delay.
(3)
Redetermination by tax commissioner. -- After a request
for review is made under subdivision (2) of this subsection, the
tax commissioner shall redetermine:
(A) Whether or not:
(i) The making of the jeopardy assessment under section
seven of this article is reasonable under the circumstances; and
(ii) The amount of the jeopardy assessment is appropriate
under the circumstances; or
(B) Whether or not the making of the jeopardy levy is reasonable under the circumstances.
(b)
Independent review. --
(1)
Proceedings permitted. -- Within ninety days after the
earlier of:
(A) The day the tax commissioner notifies the taxpayer (or
feepayer) of the tax commissioner's determination described in
subdivision (3), subsection (a) of this section; or
(B) The sixteenth day after the request described in
subdivision (2), subsection (a) of this section was made, the
taxpayer (or feepayer) may appeal directly to the secretary of
tax and revenue for a determination under this subsection.
(2)
Determination by secretary of tax and revenue. -- Within
twenty days after an appeal is filed under subdivision (1) of
this subsection, the secretary of tax and revenue shall
determine:
(A) Whether or not: (i) The making of the jeopardy
assessment under section seven of this article is reasonable
under the circumstances; and (ii) the amount so assessed or
demanded as a result of the action taken is appropriate under the
circumstances; or
(B) Whether or not the making of a jeopardy levy is
reasonable under the circumstances.
If the secretary determines the proper service was not made
on the tax commissioner, within five days after the date the
appeal was filed with the secretary, then the running of the
twenty-day period set forth in the preceding sentence shall not
begin before the day on which proper service was made on the tax
commissioner.
(3)
Order of secretary of tax and revenue. -- (A) If the
secretary of tax and revenue determines that the making of a
jeopardy assessment is unreasonable or that the amount of the
jeopardy assessment is inappropriate, the secretary may order the
tax commissioner to abate the jeopardy assessment or to take such
other action with respect to the jeopardy assessment as the
secretary finds appropriate.
(B) If the secretary determines that the making of a
jeopardy levy is unreasonable, the secretary may order the tax
commissioner to release the levy or to take such other action as
the secretary finds appropriate.
(c)
Extension of twenty-day period where taxpayer so requests. -- If the taxpayer (or feepayer) requests an extension
of the twenty-day period set forth in subdivision (2), subsection
(b) of this section and establishes reasonable grounds why such
extension should be granted, the secretary of tax and revenue may
grant an extension of not more than forty additional days.
(d)
Computation of days. -- For purposes of this section,
Saturday, Sunday or a legal holiday in this state shall not be
counted as the last day of any period.
(e)
Burden of proof. --
(1)
Reasonableness of levy, termination of jeopardy
assessment. -- In a proceeding under subsection (b) of this
section involving the issue of whether the making of a jeopardy
levy or the making of a jeopardy assessment is reasonable under
the circumstances, the burden of proof in respect to such issue
shall be upon the tax commissioner.
(2)
Reasonableness of amount of assessment. -- In a
proceeding under subsection (b) of this section involving the
issue of whether the amount of the jeopardy assessment is
appropriate under the circumstances, the tax commissioner shall
provide a written statement which contains any information with respect to which his or her determination of the amount assessed
was based, but the burden of proof in respect of such issue shall
be upon the taxpayer.
§11-10-9b. Explanation of appeal rights to accompany
administrative decision.
(a) Whenever an administrative decision is issued under
section nine of this article, the tax commissioner shall provide
to the taxpayer:
(1) A written explanation of the steps required to perfect
an appeal of the administrative decision.
(2) A written explanation of the collection remedies
available to the tax commissioner if taxpayer does not perfect an
appeal and does not pay timely the amount due under the
administrative decision.
(b) The failure of the tax commissioner to comply with a
provision of this section shall neither excuse a taxpayer from
payment of any taxes nor cure any procedural defect in a
taxpayer's case, provided the commissioner is able to demonstrate
that such provision generally is enforced or implemented by the
commissioner.
§11-10-11a. Explanation of collection remedies and taxpayer
rights.
(a) Prior to initiating collection under section eleven,
twelve or thirteen of this article, the tax commissioner shall
provide to the taxpayer a written explanation of the collection
actions that may be taken, why such action may be taken and
taxpayer's rights.
(b) The failure of the tax commissioner to comply with a
provision of this section shall neither excuse a taxpayer from
payment of any taxes nor cure any procedural defect in a
taxpayer's case, provided the commissioner is able to demonstrate
that such provision generally is enforced or implemented by the
commissioner.
§
§11-10-11b. Agreements for payment of tax liability in
installment.
(a)
Authorization of agreements. -- The tax commissioner is
authorized to enter into written agreements with any taxpayer
under which such taxpayer is allowed to satisfy liability for
payment of any tax (or fee) administered under this article in
installment payments if the tax commissioner determines that such agreement will facilitate collection of such liability.
(b)
Extent to which agreements remain in effect. --
(1)
In general. -- Except as otherwise provided in this
subsection, any agreement entered into by the tax commissioner
under subsection (a) of this section shall remain in effect for
the term of the agreement.
(2)
Inadequate information or jeopardy. -- The tax
commissioner may terminate any agreement entered into by the
commissioner under subsection (a) of this section if:
(A) Information which the taxpayer provided to the tax
commissioner prior to the date such agreement was entered into
was inaccurate or incomplete; or
(B) The tax commissioner believes that collection of any tax
to which an agreement under this section relates is in jeopardy.
(3)
Subsequent change in financial condition. --
(A)
In general. -- If the tax commissioner makes a
determination that the financial condition of a taxpayer with
whom the tax commissioner has entered into an agreement under
subsection (a) of this section has significantly changed, the tax
commissioner may alter, modify or terminate such agreement.
(B)
Notice. -- Action may be taken by the tax commissioner
under paragraph (A) of this subdivision only if:
(i) Notice of such determination is provided to the taxpayer
no later than thirty days prior to the date of such action; and
(ii) Such notice includes the reasons why the tax
commissioner believes a significant change in the financial
condition of the taxpayer has occurred.
(4)
Failure to pay an installment or any other tax liability
when due or to provide requested financial information. -- The
tax commissioner may alter, modify or terminate an agreement
entered into under subsection (a) of this section in the case of
the failure of the taxpayer:
(A) To pay any installment at the time such installment
payment is due under such agreement;
(B) To pay any other tax liability at the time such
liability is due; or
(C) To provide a financial condition update as requested by
the tax commissioner.
§11-10-11c. Extension of time for paying tax.
(a)
Amount determined on return. -- Except as listed below, the tax commissioner may extend the time for payment of the
amount of the tax (or fee) shown, or required to be shown, on any
return required by any article or section of this code
administered under this article (or any periodic installment
payment), for a reasonable period not to exceed six months from
the date fixed for payment thereof.
(b)
Amount determined as deficiency. -- Under regulations
prescribed by the tax commissioner, the tax commissioner may
extend the time for the payment of the amount determined as a
deficiency of the taxes (or fees) administered by this article
for a period not to exceed eighteen months from the date fixed
for payment of the deficiency. In exceptional cases, a further
period of time not to exceed twelve months may be granted. An
extension under this subsection may be granted only when it is
shown to the satisfaction of the tax commissioner that payment of
a deficiency on the date fixed for the payment thereof will
result in undue hardship to the taxpayer.
(c)
No extension for certain deficiencies. -- No extension
shall be granted under this section for any deficiency in payment
of trust fund taxes (or fees) actually collected by taxpayer (or feepayer), or for payment if the deficiency is due to negligence,
to intentional disregard of rules or regulations or to fraud with
intent to evade tax.
(d)
Claims in cases of bankruptcy or in receivership
proceedings. -- Extensions of time for payment of any portion of
a claim for any tax (or fee) administered under this article
allowed under Title 11 of the United States Code or in
receivership proceedings, which is unpaid, may be had in the same
manner and subject to the same provisions and limitations as
provided in subsection (c) of this section with respect to a
deficiency in tax.
§11-10-12. Liens, release; subordination; foreclosure.
(a)
General. -- Any tax, additions to tax, penalties or
interest due and payable under this article or any of the other
articles of this chapter to which this article is applicable
shall be a debt due this state. It shall be a personal
obligation of the taxpayer and shall be a lien upon the real and
personal property of the taxpayer:
Provided, That such lien
shall not attach to personal property of the taxpayer which is
sold to a bona fide purchaser for valuable consideration without notice of the existence of the lien. A lien created by this
section, when recorded, shall have priority over all other
subsequently recorded liens authorized by this code.
(b)
Duration of lien. -- The lien created by this section
shall continue until the liability for the tax, additions to tax,
penalties and interest is satisfied or upon the expiration of ten
years from the date the tax, additions to tax, penalties and
interest are due and payable under section eight of this article
or the date the tax return is filed, whichever is later.
(c)
Recordation. -- The lien created by this section shall
be subject to the restrictions and conditions embodied in article
ten-c, chapter thirty-eight of this code and any amendment made
or which may hereafter be made thereto:
Provided, That the
notice of lien shall indicate the date the tax, additions to tax,
penalties and interest are due and payable under section eight of
this article or the date the tax return was filed.
(d)
Release or subordination. -- The tax commissioner,
pursuant to rules or regulations prescribed by him, may issue his
certificate of release of any lien created pursuant to this
section when the debt is adequately secured by bond or other security. He shall issue his certificate of release when the
debt secured has been satisfied. The certificate of release
shall be issued in duplicate. One copy shall be forwarded to the
taxpayer, and the other copy shall be forwarded to the clerk of
the county commission of the county wherein the lien is recorded.
The clerk of the county commission shall record the release
without payment of any fee and such recordation shall constitute
a release and full discharge of the lien. The tax commissioner
may issue his certificate of release of any such lien as to all
or any part of the property subject to the lien, or may
subordinate such lien to any other lien or interest, but only if
there is paid to the state an amount not less than the value of
the interest of the state in such property, or if the interest of
the state in such property has no value.
(e)
Foreclosure. -- The tax commissioner may enforce any
lien created and recorded under this section, against any
property subject to such lien by civil action in the circuit
court of the county wherein such property is located, in order to
subject such property to the payment of the tax secured by such
lien. All persons having liens upon or having any interest in the property shall be made parties to such action. The court may
appoint a receiver or commissioner who shall ascertain and report
all liens, claims and interests in and upon the property, the
validity, amount and priority of each. The court shall, after
notice to all parties, proceed to adjudicate all matters involved
therein, shall determine the validity, amount and priorities of
all liens, claims and interests in and upon the property and
shall decree a sale of such property by the sheriff or any
commissioner to whom the action is referred, and shall decree
distribution of the proceeds of such sale according to the
findings of the court in respect to the interests of the parties.
(f)
Discharge of lien. -- A sale of property against which
the state has a lien under this section, made pursuant to an
instrument creating a lien on such property, or made pursuant to
a statutory lien on such property, or made pursuant to a judicial
order to enforce any judgment in any civil action, shall be made
subject to and without disturbing the state tax lien if the state
tax lien was recorded more than thirty days before such sale,
unless:
(1) The tax commissioner is made a party to such civil action; or
(2) The tax commissioner consents to such sale. In order to
consent to the sale, the tax commissioner shall be given written
notice which shall contain the name of the owner of the property,
the social security number or federal employer identification
number of the owner, a complete description of the property to be
sold and the amount of the lien to be discharged by such sale.
(g)
Third party liability. -- The date upon which a lien
created by this section establishes third party liability is as
follows:
(1) For officers, responsible employees and members of any
organization which is a taxpayer and against which a lien is
created by this section, on the date the lien arises against the
taxpayer;
(2) For the successor of any such taxpayer against which a
lien is created by this section, on the date such person becomes
the successor; and
(3) For the nominee of any taxpayer against which a lien is
created by this section, on the date such person becomes the
nominee.
(h)
Procedural rules. -- The tax commissioner may, in
accordance with article three, chapter twenty-nine-a of this
code, promulgate procedural rules to provide for the
administrative appeal of state tax liens established under this
section.
§11-10-12a. Administrative appeal of liens.
(a)
In general. -- In such form and at such time as the tax
commissioner shall prescribe by regulations, any person shall be
allowed to appeal to the tax commissioner after the filing of a
notice of lien under this article on the property or the rights
to property of such person for a release of such lien alleging an
error in the filing of the notice of such lien.
(b)
Certificate of release. -- If the tax commissioner
determines that the filing of the notice of any lien was
erroneous, the tax commissioner shall within fourteen days after
such determination issue a certificate of release of such lien
and shall include in such certificate a statement that such
filing was erroneous.
§11-10-13. Levy and distraint.
(a)
Authority of tax commissioner. -- If any tax (or fee) administered under this article is shown to be due on a return,
it is required to be paid at the time the return is filed and if
any portion of tax (or fee) is not so paid, or if an assessment
of tax (or fee) is made by the tax commissioner and notice
thereof is given as required by this article and such assessment
has become final and is not subject to administrative or judicial
review, then, if any person liable to pay any tax (or fee)
administered under this article neglects or refuses to pay the
same within thirty days after notice and demand, it shall be
lawful for the tax commissioner (or his delegate) to collect such
tax (or fee) (and such further sum as is sufficient to cover the
expense of the levy) by levy upon all property and rights to
property belonging to such person or on which there is a lien
provided in this article, or any article administered under this
article, for payment of the tax (or fee). If the tax
commissioner makes a finding that the collection of such tax (or
fee) is in jeopardy, notice and demand for immediate payment of
such tax (or fee) may be given by the tax commissioner (or his
delegate) and, upon failure or refusal to pay such tax (or fee),
collection thereof by levy shall be lawful without regard to the thirty-day period provided in this section.
(b)
"Levy" defined. -- The term "levy" as used in this
section includes the power of distraint and seizure by any means.
Except as otherwise provided in this section, a levy shall extend
only to property possessed and obligations existing at the time
thereof. In any case in which the tax commissioner, or his
delegate, may levy upon property or rights to property, he may
seize and sell such property or right to property, whether such
property be real or personal, tangible or intangible.
(c)
Successive seizures. -- Whenever any property or a right
to property upon which levy has been made by virtue of subsection
(a) of this section is not sufficient to satisfy the claim of the
state of West Virginia for which levy is made, the tax
commissioner may, thereafter, and as often as may be necessary,
proceed to levy in like manner upon any other property liable to
levy of the person against whom such claim exists, until the
amount due from him, together with all expenses, is fully paid.
(d)
Distress warrant. -- The tax commissioner may issue a
distress warrant to the sheriff of any county of this state, or
to any officer or employee of the state tax division, commanding him to levy upon and sell any such property or rights to property
subject to levy in accordance with the provisions of this
article. A distress warrant shall be executed within sixty days
from the date the warrant was issued. The sheriff shall return
the warrant and any money collected to the tax commissioner
within sixty-five days from the date the warrant was issued. The
provisions of articles four, five and six, chapter thirty-eight
of this code shall not apply to the issuance or execution of any
distress warrant issued under this subsection.
(e)
Requirement of notice before levy. --
(1)
In general. -- Levy may be made under subsection (a) of
this section upon the salary or wages or other property or rights
to property of any person with respect to any unpaid tax (or fee)
only after the tax commissioner has notified such person in
writing of the commissioner's intention to make such levy.
(2)
Thirty-day requirement. -- The notice required under
subdivision (1) of this subsection shall be: (A) Given in
person; or (B) left at the dwelling or usual place of business of
such person; or (C) sent by certified mail to such person's last
known address, no less than thirty days prior to the day of levy:
Provided, That no notice need be given if the tax commissioner
has made a finding under the last sentence of subsection (a) of
this section that collection of the tax (or fee) is in jeopardy.
(3)
Information included with notice. -- The notice required
under subdivision (1) of this subsection shall include a brief
statement which sets forth in simple and nontechnical terms:
(A) The provisions of this article relating to levy and sale
of property;
(B) The procedures applicable to the levy and sale of
property under this article;
(C) The administrative appeals available with respect to
such levy and sale and the procedures relating to such appeals;
(D) The alternatives available to taxpayers (or feepayers)
which could prevent levy on the property including installment
payment agreements under section eleven-b of this article;
(E) The provisions of this article relating to the
redemption of property; and
(F) The procedures applicable to the redemption of property
and the release of a lien on property under this article.
(f)
Continuing levy on salary and wages. -- The effect of a levy on salary or wages payable to or received by a taxpayer (or
feepayer) shall be continuous from the date such levy is first
made until such levy is released under section thirteen-k of this
article.
(g)
Uneconomical levy. -- No levy may be made on any
property if the amount of expenses which the tax commissioner
estimates at the time of levy would be incurred by the tax
commissioner with respect to the levy and sale of the property
exceeds the fair market value of such property at the time of
levy.
(h)
Levy on appearance date of subpoena. -- (1) In general.
-- No levy may be made on the property of any person on any day
on which such person (or officer or employee of such person) is
required to appear in response to a subpoena issued by the tax
commissioner for the purpose of collecting any underpayment of a
tax (or fee) administered under this article.
(2)
No application in case of jeopardy. -- This subsection
shall not apply if the tax commissioner finds that the collection
of the tax (or fee) is in jeopardy.
§11-10-13a. Property exempt from levy.
(a)
Enumeration. -- There shall be exempt from levy:
(1)
Wearing apparel and school books. -- Items of wearing
apparel and school books that are necessary for the taxpayer (or
feepayer) or for members of his or her family.
(2)
Fuel, provisions, furniture and personal effects. -- If
the taxpayer (or feepayer) is the head of a family, so much of
the fuel, provisions, furniture and personal effects in his or
her household and of the arms for personal use, livestock and
poultry of the taxpayer (or feepayer) as does not exceed two
thousand dollars in value; if the taxpayer (or feepayer) is an
individual who is not the head of a household, this exemption
shall not exceed two thousand dollars.
(3)
Books and tools of a trade, business or profession. --
So many of the books and tools necessary for the trade, business
or profession of the taxpayer (or feepayer) as do not exceed in
the aggregate one thousand one hundred dollars in value.
(4)
Unemployment benefits. -- Any amount payable to an
individual with respect to his or her unemployment (including any
portion thereof payable with respect to dependents) under an
unemployment compensation law of the United States or of this state or any other state.
(5)
Undelivered mail. -- Mail, addressed to any person,
which has not been delivered to the addressee.
(6)
Annuity and pension payments. -- Annuity or pension
payments under any pension or retirement plan, including social
security payments.
(7)
Workers' compensation. -- Any amount payable to an
individual as workers' compensation (including any portion
thereof payable with respect to dependents) under a workers'
compensation law of the United States or of this state or any
other state.
(8)
Judgments for support of minor children. -- If the
taxpayer is required by a judgment of a court of competent
jurisdiction, entered prior to the date of levy, to contribute to
the support of his or her other minor children, so much of his or
her salary, wages or other income as is necessary to comply with
such judgment.
(9)
Public assistance. -- Any amount payable from a public
assistance or relief fund created under the law of the United
States or of this state or of any other state.
(10)
Minimum exemption for wages, salary, and other income.
-- Any amount payable or received by an individual as wages or
salary for services provided by an employee to his or her
employer, or as income derived from other sources, during any
period, to the extent that the total of such amounts payable or
received by him or her during such period does not exceed the
applicable exempt amount determined under subsection (d) of this
section.
(11)
Certain service-connected disability payments. -- Any
amount payable to an individual as a service-connected (within
the meaning of Section 101(16) of Title 38, United States Code)
disability benefit under:
(A) Subchapter II, III, IV, V or VI of chapter 11 of such
Title 38; or
(B) Chapter 13, 21, 23, 31, 32, 34, 35, 37 or 39 of such
Title 38.
(12)
Assistance under job training partnership act. -- Any
amount payable to a participant under the Job Training
Partnership Act (29 U.S.C. 1501 et seq.) from funds appropriated
pursuant to such act.
(13)
Homestead. -- If the taxpayer (or feepayer) owns a
homestead located in this state, the first five thousand dollars
thereof shall be exempt from levy.
(b)
Appraisal. -- The officer seizing property of the type
described in subsection (a) of this section shall appraise and
set aside to the owner the amount of such property declared to be
exempt. If the taxpayer objects at the time of the seizure to
the valuation fixed by the officer making the seizure, the tax
commissioner shall summon three disinterested individuals who
shall make the valuation.
(c)
No other property exempt. -- Notwithstanding any other
law of this state, no property or rights to property shall be
exempt from levy other than property specifically made exempt by
subsection (a) of this section.
(d)
Exempt amount of wages, salary or other income. --
(1)
Individuals on weekly basis. -- In the case of an
individual who is paid or receives all of his or her wages,
salary and other income on a weekly basis, the amount of the
wages, salary and other income payable to or receivable by the
person during any week which is exempt from levy under subdivision (10), subsection (a) of this section shall be:
(A) Thirty times the state minimum wage per hour; plus
(B) Twenty-five dollars for each additional dependent of the
taxpayer (or feepayer).
(2)
Individual on basis other than weekly. -- In the case of
any individual not described in subdivision (1) of this
subsection, the amount of the wages, salary and other income
payable to or received by him or her during any applicable pay
period or other fiscal period (as determined under regulations
prescribed by the tax commissioner) which is exempt under
subdivision (10), subsection (a) of this section shall be an
amount (determined under such regulations) which as nearly as
possible will result in the same total exemptions from such levy
for such individual over a period of time as he or she would have
under subdivision (1) of this subsection if (during such period
of time) he or she were paid or received such wages, salary and
other income on a regular weekly basis.
§11-10-13c. Sale of seized property.
(a)
Notice of seizure. -- As soon as practicable after
seizure of property, notice in writing shall be given by the tax commissioner to the owner of the property (or, in the case of
personal property, the possessor thereof), or shall be left at
his usual place of abode or business if he has such within the
county where the seizure is made. If the owner cannot be readily
located, or has no dwelling or place of business within such
county, the notice may be mailed to his last known address. Such
notice shall specify the sum demanded and shall contain, in the
case of personal property, an account of the property seized and,
in the case of real property, a description with reasonable
certainty of the property seized.
(b)
Notice of sale. -- The tax commissioner may sell any
property seized under section thirteen of this article. As soon
as practicable after the seizure of the property, the tax
commissioner shall give notice to the owner, in the manner
prescribed in subsection (a) of this section, and shall cause a
notice of sale to be published as a Class II legal advertisement
in some newspaper published or generally circulated within the
county wherein the seizure is made, or the county where the
property is located, the last date of publication being not less
than five days prior to sale, this notice shall identify the property to be sold and the date, time, place, manner and
conditions of the sale thereof, all of which shall be at the
discretion of the tax commissioner. The sale shall be conducted
by public auction or by public sale under sealed bids. Before
the sale, the tax commissioner may determine a minimum price for
which the property shall be sold, and if no person offers for the
property at the sale, the amount of the minimum price, the
property shall be declared to be purchased at the price for the
state of West Virginia; otherwise the property shall be declared
to be sold to the highest bidder. In determining the minimum
price, the tax commissioner shall take into account the expense
of making the levy and sale.
(c)
Sale of indivisible property. -- If any property liable
to levy is not divisible, so as to enable the tax commissioner by
sale of a part thereof to raise the whole amount of the tax and
expense of making the levy and sale, the whole of such property
shall be sold. However, where the property sold is coowned or
jointly owned by the taxpayer and an innocent third party, the
proceeds of sale shall be divided, based on the respective
interests of the persons owning the property immediately prior to the levy and sale, and the proceeds attributable to the interest
of the innocent owner or owners shall be distributed to them:
Provided, That where the property to be sold is so coowned or
jointly owned by an innocent third party, having no delinquent
tax liability attempted to be collected under such levy and sale,
such innocent party may petition the circuit court of the county
in which the property is located for relief, including
postponement of the sale, in order that the court can determine
if the property can be partitioned, so as to avoid sale of the
innocent party's portion or grant and afford other relief by the
court protective of the rights and interests of such innocent
party.
(d)
Time and place of sale. -- The time of sale shall not be
less than ten nor more than forty days from the time of giving
public notice under subsection (b) of this section. The place of
sale shall be within the county in which the property is seized,
except by special order of the tax commissioner.
(e)
Manner and conditions of sale. --
(1)
In general. --
(A)
Determinations relating to minimum price. -- Before the sale of property seized by levy, the tax commissioner shall
determine:
(i) A minimum price for which such property shall be sold
(taking into account the expense of making the levy and
conducting the sale); and
(ii) Whether, on the basis of criteria prescribed by the tax
commissioner, the purchase of such property by the state of West
Virginia at such minimum price would be in the best interest of
the state.
(B)
Sale to highest bidder at or above minimum price. -- If,
at the sale, one or more persons offer to purchase the property
for not less than the amount of the minimum price, the property
shall be declared sold to the highest bidder.
(C)
Property deemed sold to state at minimum price in
certain cases. -- If no person offers the amount of the minimum
price for such property at the sale and the tax commissioner has
determined that the purchase of such property by the state would
be in the best interest of the state, the property shall be
declared to be sold to the state at such minimum price.
(D)
Release to owner in other cases. -- If, at the sale, the property is not declared sold under paragraph (B) or (C) of this
subsection, the property shall be released to the owner thereof
and the expense of the levy and sale shall be added to the amount
of tax for the collection of which the levy was made. Any
property released under this subparagraph shall remain subject to
any lien imposed by this article.
(2)
Additional rules applicable to sale. -- The tax
commissioner shall prescribe the manner and other conditions of
the sale of property seized by levy. If one or more alternative
methods or conditions are permitted by regulations, the tax
commissioner shall select the alternatives applicable to the
sale. The tax commissioner shall provide:
(A) That the sale shall not be conducted in any manner other
than:
(i) By public auction; or
(ii) By public sale under sealed bids.
(B) In the case of the seizure of several items of property,
whether such items shall be offered separately, in groups or in
the aggregate; and whether the property shall be offered both
separately (or in groups) and in the aggregate, and sold under whichever method produces the highest aggregate amount.
(C) Whether the announcement of the minimum price determined
by the tax commissioner may be delayed until the receipt of the
highest bid.
(D) Whether payment in full shall be required at the time of
acceptance of a bid, or whether a part of the payment may be
deferred for the period (not to exceed one month) as may be
determined by the tax commissioner to be appropriate.
(E) The extent to which methods (including advertising) in
addition to those prescribed in subsection (b) of this section
may be used in giving notice of the sale.
(F) Under what circumstances the tax commissioner may
adjourn the sale from time to time (but such adjournments shall
not be for a period to exceed, in all, one month).
(3)
Payment of amount bid. -- If payment in full is required
at the time of acceptance of a bid and is not then and there
paid, the tax commissioner shall forthwith proceed to again sell
the property in the manner provided in this subsection. If the
conditions of the sale permit part of the payment to be deferred,
and if the part is not paid within the prescribed period, suit may be instituted against the purchaser for the purchase price or
the part thereof as has not been paid, together with interest at
the rate of eight percent per annum from the date of the sale;
or, in the discretion of the tax commissioner, the sale may be
declared by the tax commissioner to be null and void for failure
to make full payment of the purchase price and the property may
again be advertised and sold as provided in subsections (b) and
(c) of this section. In the event of such readvertisement and
sale, any new purchaser shall receive the property or rights to
property, free and clear of any claim or right of the former
defaulting purchaser, of any nature whatsoever, and the amount
paid upon the bid price by the defaulting purchaser shall be
forfeited.
(f)
Right to request sale of seized property within sixty
days. -- The owner of any property seized by levy may request
that the tax commissioner sell the property within sixty days
after such request (or within a longer period as may be specified
by the owner). The tax commissioner shall comply with the
request unless the tax commissioner determines (and notifies the
owner within the period) that such compliance would not be in the best interests of the state.
§11-10-13k. Authority to release levy and return property.
(a)
Release of levy. --
(1)
In general. -- The tax commissioner shall release the
levy upon all or part of the property or rights to property
levied upon and shall promptly notify the person upon whom the
levy was made (if any) that the levy has been released if:
(A) The liability for which such levy was made is satisfied
or becomes unenforceable by reason of lapse of time;
(B) The tax commissioner determines that release of the levy
will facilitate the collection of the liability;
(C) The taxpayer (or feepayer) has entered into an agreement
under section eleven-b of this article to satisfy the liability
by means of installment payments, unless the agreement otherwise
provides;
(D) The commissioner has determined that the levy is
creating an economic hardship due to the financial condition of
the taxpayer (or feepayer); or
(E) The commissioner determines that the fair market value
of the property exceeds the liability and release of the levy on a part of such property could be made without hindering the
collection of the liability.
For purposes of paragraph (C) of this subdivision, the tax
commissioner is not required to release the levy if such release
would jeopardize the secured creditor status of the tax
commissioner.
(2)
Expedited determination on certain business property. --
In the case of any tangible personal property essential in
carrying on the trade or business of the taxpayer (or feepayer),
the tax commissioner shall provide for an expedited determination
under subdivision (1) of this subsection if the levy on the
tangible personal property would prevent the taxpayer (or
feepayer) from carrying on the trade or business.
(3)
Subsequent levy. -- The release of levy on any property
under subdivision (1) of this subsection shall not operate to
prevent a subsequent levy on the property.
(b)
Return of property. -- If the tax commissioner
determines that property has been wrongly levied upon, it shall
be lawful for the tax commissioner to return:
(1) The specific property levied upon;
(2) An amount of money equal to the amount of money levied
upon; or
(3) An amount of money equal to the amount of money received
by the state of West Virginia from a sale of the property.
Property may be returned at any time. An amount equal to the
amount of money levied upon or received from the sale may be
returned at any time before the expiration of nine months from
the date of the levy. For purposes of this subdivision, if
property is declared purchased by the state of West Virginia at
a sale pursuant to section thirteen-c of this article (relating
to manner and conditions of sale), the state of West Virginia
shall be treated as having received an amount of money equal to
the minimum price determined pursuant to such section or (if
larger) the amount received by the state of West Virginia from
the resale of the property.
(c) The tax commissioner shall, upon written request, make
public the names and persons in whose favor a release of levy or
return of property has been made in subsections (a) and (b) of
this section.
(d)
Interest. -- Interest shall be allowed and paid at an annual rate established under section seventeen-a of this
article:
(1) In a case described in subdivision (2), subsection (b)
of this section, from the date the tax commissioner receives the
money to a date (to be determined by the tax commissioner)
preceding the date of return by not more than thirty days; or
(2) In a case described in subdivision (3), subsection (b),
of this section, from the date of the sale of the property to a
date (to be determined by the tax commissioner) preceding the
date of return by not more than thirty days.
§11-10-13l. Reimbursement of bank and merchant charges due to
erroneous levy.
(a)
In general. -- A taxpayer may file a claim with the
commissioner for reimbursement of bank and merchant charges
incurred by the taxpayer as the direct result of an erroneous
levy by the commissioner. Bank charges include a financial
institution's customary charge for complying with the levy
instructions and reasonable charges for overdrafts that are a
direct consequence of the erroneous levy. Merchant charges
include the reasonable charge for overdrafts that are a direct consequence of the erroneous levy. The charges are those paid by
the taxpayer and not waived or reimbursed by the financial
institution. Each claimant applying for reimbursement shall file
a claim with the commissioner in a form prescribed by the
commissioner.
(b)
Other charges. -- A taxpayer may file a claim with the
commissioner for reimbursement of any legal fees and costs
including expert witness fees, court costs and other costs
incurred by the taxpayer as the direct result of an erroneous
levy by the commissioner. Each claimant applying for
reimbursement shall file a claim with the commissioner in a form
prescribed by the commissioner.
(c)
Limitation. -- The commissioner may grant a claim only
if the commissioner determines that both of the following two
conditions have been satisfied:
(1) The erroneous levy was caused by commissioner's error;
(2) Before the levy, the taxpayer responded to all contacts
by the commissioner and provided the commissioner with any
requested information or documentation sufficient to establish
the taxpayer's position. The conditions stated in this subdivision may be waived by the commissioner for reasonable
cause.
(d)
Time for filing claim. -- A claim pursuant to this
section must be filed within ninety days from the date of the
levy. Within thirty days from the date the claim is received,
the commissioner shall respond to the claim. If the commissioner
denies the claim, the taxpayer must be notified in writing of the
reasons for the denial of the claim.
§11-10-14. Overpayments; credits; refunds and limitations.
(a)
Refunds of credits of overpayments. -- In the case of
overpayment of any tax (or fee), additions to tax, penalties or
interest imposed by this article, or any of the other articles of
this chapter, or of this code, to which this article is
applicable, the tax commissioner shall, subject to the provisions
of this article, refund to the taxpayer the amount of the
overpayment or, if the taxpayer so elects, apply the same as a
credit against the taxpayer's liability for the tax for other
periods. The refund or credit shall include any interest due the
taxpayer under the provisions of section seventeen of this
article.
(b)
Refunds or credits of gasoline and special fuel excise
tax or motor carrier road tax. -- Any person who seeks a refund
or credit of gasoline and special fuel excise taxes under the
provisions of section ten, eleven or twelve, article fourteen of
this chapter, or section nine or eleven, article fourteen-a of
this chapter, shall file his claim for refund or credit in
accordance with the provisions of such sections. The ninety-day
time period for determination of claims for refund or credit
provided in subsection (d) of this section shall not apply to
these claims for refund or credit.
(c)
Claims for refund or credit. -- No refund or credit
shall be made unless the taxpayer has timely filed a claim for
refund or credit with the tax commissioner. A person against
whom an assessment or administrative decision has become final
shall not be entitled to file a claim for refund or credit with
the tax commissioner as prescribed herein. The tax commissioner
shall determine the taxpayer's claim and notify the taxpayer in
writing of his determination.
(d)
Petition of refund or credit; hearing. -- (1) If the
taxpayer is not satisfied with the tax commissioner's determination of taxpayer's claim for refund or credit, or if the
tax commissioner has not determined the taxpayer's claim within
ninety days after the claim was filed, or six months in the case
of claims for refund or credit of the taxes imposed by articles
twenty-one, twenty-three and twenty-four of this chapter, after
the filing thereof, the taxpayer may file, with the tax
commissioner, either personally or by certified mail, a petition
for refund or credit:
Provided, That no petition for refund or
credit may be filed more than sixty days after the taxpayer is
served with notice of denial of taxpayer's claim.
(2) The petition for refund or credit shall be in writing,
verified under oath by the said taxpayer, or by taxpayer's duly
authorized agent having knowledge of the facts, and shall set
forth with particularity the items of the determination objected
to, together with the reasons for the objections.
(3) When a petition for refund or credit is properly filed,
the procedures for hearing and for decision applicable when a
petition for reassessment is timely filed shall be followed.
(e)
Appeal. -- An appeal from the tax commissioner's
administrative decision upon the petition for refund or credit may be taken by the taxpayer in the same manner and under the
same procedure as that provided for judicial review of an
administrative decision on a petition for reassessment, but no
bond shall be required of the taxpayer.
(f)
Decision of the court. -- Where the appeal is to review
an administrative decision on a petition for refund or credit,
the court may determine the legal rights of the parties but in no
event shall it enter a judgment for money.
(g)
Refund made or credit established. -- The tax
commissioner shall promptly issue his requisition on the treasury
or establish a credit, as requested by the taxpayer, for any
amount finally administratively or judicially determined to be an
overpayment of any tax (or fee) administered under this article.
The auditor shall issue his warrant on the treasurer for any
refund requisitioned under this subsection payable to the
taxpayer entitled to the refund, and the treasurer shall pay the
warrant out of the fund into which the amount so refunded was
originally paid:
Provided, That refunds of personal income tax
may also be paid out of the fund established pursuant to section
ninety-three, article twenty-one of this chapter.
(h)
Forms for claim for refund or a credit; where return
shall constitute claim. -- The tax commissioner may prescribe by
rule or regulation the forms for claims for refund or credit.
Notwithstanding the foregoing, where the taxpayer has overpaid
the tax imposed by article twenty-one, twenty-three or
twenty-four of this chapter, a return signed by the taxpayer
which shows on its face that an overpayment of such tax has been
made shall constitute a claim for refund or credit.
(i)
Remedy exclusive. -- The procedure provided by this
section shall constitute the sole method of obtaining any refund,
or credit, or any tax (or fee) administered under this article,
it being the intent of the Legislature that the procedure set
forth in this article shall be in lieu of any other remedy,
including the uniform declaratory judgments act embodied in
article thirteen, chapter fifty-five of this code, and the
provisions of section two-a, article one of this chapter.
(j)
Applicability of this section. -- The provisions of this
section shall apply to refunds or credits of any tax (or fee),
additions to tax, penalties or interest imposed by this article,
or any article of this chapter, or of this code, to which this article is applicable.
(k)
Erroneous refund or credit. -- If the tax commissioner
believes that an erroneous refund has been made or an erroneous
credit has been established, he may proceed to investigate and
make an assessment or institute civil action to recover the
amount of such refund or credit, within two years from date the
erroneous refund was paid or the erroneous credit was
established.
(l)
Limitation on claims for refund or credit. -- (1)
General rule. -- Whenever a taxpayer claims to be entitled to a
refund or credit of any tax (or fee), additions to tax, penalties
or interest imposed by this article, or any article of this
chapter, or of this code, administered under this article, paid
into the treasury of this state, such taxpayer shall, except as
provided in subsection (d) of this section, file a claim for
refund, or credit, within three years after the due date of the
return in respect of which the tax (or fee) was imposed,
determined by including any authorized extension of time for
filing the return, or within two years from the date the tax, (or
fee), was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within two years from the
time the tax (or fee) was paid, and not thereafter.
(2)
Extensions of time for filing claim by agreement. -- The
tax commissioner and the taxpayer may enter into a written
agreement to extend the period within which the taxpayer may file
a claim for refund or credit, which period shall not exceed two
years. The period so agreed upon may be extended for additional
periods not in excess of two years each by subsequent agreements
in writing made before expiration of the period previously agreed
upon.
(3)
Special rule where agreement to extend time for making
an assessment. -- Notwithstanding the provisions of subdivisions
(1) and (2) of this subsection, if an agreement is made under the
provisions of section fifteen of this article extending the time
period in which an assessment of tax can be made, then the period
for filing a claim for refund or credit for overpayment of the
same tax made during the periods subject to assessment under the
extension agreement shall also be extended for the period of the
extension agreement plus ninety days.
(4)
Overpayment of federal tax. -- Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, in the
event of a final determination by the United States Internal
Revenue Service or other competent authority of an overpayment in
the taxpayer's federal income tax liability, the period of
limitation upon claiming a refund reflecting the final
determination in taxes imposed by articles twenty-one and
twenty-four of this chapter shall not expire until six months
after the determination is made by the United States Internal
Revenue Service or other competent authority.
(5)
Tax paid to the wrong state. -- Notwithstanding the
provisions of subdivisions (1) and (2) of this subsection, when
an individual, or the fiduciary of an estate, has in good faith
erroneously paid personal income tax, estate tax or sales tax, to
this state on income or a transaction which was lawfully taxable
by another state and, therefore, not taxable by this state, and
no dispute exists as to the jurisdiction to which the tax should
have been paid, then the time period for filing a claim for
refund, or credit, for the tax erroneously paid to this state
shall not expire until ninety days after the tax was lawfully
paid to the other state.
(6)
Exception for gasoline and special fuel excise tax and
motor carrier road tax. -- This subsection shall not apply to
refunds of gasoline and special fuel excise tax or motor carrier
road tax sought under the provisions of article fourteen or
fourteen-a of this chapter.
(m)
Effective date. -- This section, as amended in the year
one thousand nine hundred ninety-four, shall apply to claims for
refund or credit filed on or after the first day of July, one
thousand nine hundred ninety-four.
§11-10-14c. Prompt payment of refunds of personal income taxes.
(a)
General rule. -- The net amount of a lawful,
mathematically correct, uncontested claim for refund of any tax
imposed by article twenty-one of this chapter shall be refunded
to the taxpayer within ninety days after such a claim for refund
is filed with the tax commissioner. If the fund is not made to
a taxpayer within the ninety days, the tax commissioner shall pay
interest, at the rate specified in section seventeen-a of this
article, for the period commencing with the date the claim for
refund was received by the tax commissioner until the date the
state warrant for the refund amount is issued, notwithstanding any provisions of section seventeen of this article to the
contrary.
(b)
Definitions. -- For purposes of this section:
(1) A claim for refund is "filed with the tax commissioner"
on the date it is physically received by the state tax division.
(2) A "lawful, mathematically correct, uncontested claim for
refund" is one that is timely filed; is signed by the appropriate
taxpayer or taxpayers; is mathematically correct; is supported by
any necessary documentation; and appears on its face to be
correct.
(c) The payment of a claim for refund under this section
shall not bar the tax commissioner from later issuing an
assessment to recover any amount erroneously refunded, plus
statutory interest and any applicable additions to tax, within
two years after the date the refund was made:
Provided, That if
the refund or any part thereof was obtained by fraud, the
assessment may be made at any time.
(d) This section shall apply only to claims for refund of
personal income taxes filed after the first day of January, one
thousand nine hundred ninety-five.
§11-10-14d. Prompt payment of refunds of corporation net income
taxes.
(a)
General rule. -- The net amount of a lawful,
mathematically correct, uncontested claim for refund of any tax
imposed by article twenty-four of this chapter shall be refunded
to the taxpayer within six months after a claim for refund is
filed with the tax commissioner. If the refund is not made to a
taxpayer within this period, the tax commissioner shall pay
interest, at the rate specified in section seventeen-a of this
article, for the period commencing with the date the claim for
refund was received by the tax commissioner until the date the
state warrant for the refund amount is issued, notwithstanding
any provisions of section seventeen of this article to the
contrary.
(b)
Definitions. -- For purposes of this section:
(1) A claim for refund is "filed with the tax commissioner"
on the date it is physically received by the state tax division.
(2) A "lawful, mathematically correct, uncontested claim for
refund" is one that is timely filed; is signed by the appropriate
taxpayer or taxpayers; is mathematically correct; is supported by any necessary documentation; and appears on its face to be
correct.
(c) The payment of a claim for refund under this section
shall not bar the tax commissioner from later issuing an
assessment to recover any amount erroneously refunded, plus
statutory interest and any applicable additions to tax, within
two years after the date the refund was made:
Provided, That if
the refund or any part thereof was obtained by fraud, the
assessment may be made at any time.
(d) This section shall apply only to claims for refund of
personal income taxes filed after the first day of January, one
thousand nine hundred ninety-five.
ARTICLE 11. ESTATE TAXES.
§11-11-3. Imposition of tax.
Whenever a federal estate tax is payable to the United
States, there is hereby imposed a West Virginia estate tax equal
to the portion, if any, of the maximum allowable amount of
federal credit for state death taxes which is attributable to
property located in this state, or within its taxing
jurisdiction. In no event, however, shall the estate tax hereby imposed result in a total death tax liability to this state and
the United States in excess of the death tax liability to the
United States which would result if this article were not in
effect:
Provided, That the estate tax hereby imposed shall not
be affected by other credits properly allowable in computing the
federal estate tax except that the unified credit established in
Section 2010 of the Internal Revenue Code of 1986, as amended,
shall be applied before calculating the West Virginia estate tax.
§11-11-17. Special lien for estate tax.
(a)
Lien created. -- Unless the tax imposed by this article
is sooner paid in full, or becomes unenforceable by reason of
lapse of time, it shall be a lien for ten years after the death
of the decedent upon all property, real or personal, of the
decedent located in this state, except as provided in subsection
(d) of this section.
(b)
Liability of transferees and others. -- If the tax
imposed by this article is not paid when due, then the
transferee, trustee (except the trustee of an employees' trust
which meets the requirements of Section 401(a) of the Internal
Revenue Code of 1986, as amended), surviving tenant, person in possession of the property by reason of the exercise,
nonexercise, or release of a power of appointment, or beneficiary
who receives, or possesses on the date of the decedent's death,
property included in the gross estate, to the extent of the value
at the time of the decedent's death of the property, shall be
personally liable for the tax. Any part of the property
transferred by (or transferred by a transferee of) the
transferee, trustee, surviving tenant, person in possession, or
beneficiary, to a purchaser or holder of a security interest
shall be divested of the lien provided in subsection (a) of this
section and a like lien shall attach to all the property of the
spouse, transferee, trustee, surviving tenant, person in
possession, or beneficiary, or transferee of any person, except
any part transferred to a purchaser or a holder of a security
interest.
(c)
Continuance after discharge of fiduciary. -- The
provisions of section twenty of this article eleven (relating to
discharge of fiduciary from personal liability) shall not operate
as a release of any part of the gross estate from the lien
provided in subsection (a) of this section for any deficiency that may thereafter be determined to be due, unless the part of
the gross estate (or any interest therein) has been transferred
to a purchaser or a holder of a security interest, in which case
the part (or the interest) so transferred shall not be subject to
a lien or to any claim or demand for any deficiency, but the lien
shall attach to the consideration received from the purchaser or
holder of a security interest, by the heirs, legatees, devisees,
or distributees.
(d)
Exceptions. --
(1) The part of the property of the decedent as may at the
time be subject to the lien provided for in subsection (a) of
this section shall be divested of such lien to the extent used
for payment of charges against the estate or expenses of its
administration allowed by the county commission or court having
jurisdiction thereof.
(2) The part of the personal property of the decedent as may
at the time be subject to the lien provided for in subsection (a)
of this section shall be divested of the lien upon the conveyance
or transfer of the property to a bona fide purchaser or holder of
a security interest for an adequate and full consideration in money or money's worth. The liens shall then attach to the
consideration received for the property from the purchaser or
holder of a security interest.
(e)
Release of lien. -- Subject to the regulations as the
tax commissioner may prescribe, the tax commissioner shall issue
a certificate of release of any lien arising under this section
not later than thirty days after the day on which the tax
commissioner finds that the liability for the amount assessed,
together with all interest and applicable penalties and additions
to tax in respect thereof, has been fully satisfied or has become
legally unenforceable.
(f)
Certificate of discharge. -- Subject to the regulations
as the tax commissioner may prescribe, the tax commissioner may
issue a certificate of discharge of any or all of the property
subject to the lien imposed by this section if the tax
commissioner finds that the liability secured by the lien has
been fully satisfied or provided for.
(g)
Effect of certificate. --
(1)
Conclusiveness. -- Except as provided in subdivisions
(2) and (3) of this subsection, if a certificate is issued pursuant to subsection (f) of this section by the tax
commissioner and is filed in the same office as the notice of
lien to which it relates (if such notice of lien has been filed),
the certificate shall have the following effect:
(A) In the case of a certificate of release, the certificate
shall be conclusive that the lien referred to in the certificate
is extinguished;
(B) In the case of a certificate of discharge, the
certificate shall be conclusive that the property covered by the
certificate is discharged from the lien; and
(C) In the case of a certificate of nonattachment, the
certificate shall be conclusive that the lien of the state of
West Virginia does not attach to the property of the person
referred to in the certificate.
(2)
Revocation of certification of release or nonattachment.
-- If the tax commissioner determines that a certificate of
release or nonattachment of a lien imposed by this section was
issued erroneously or improvidently, or if a certificate of
release of the lien was issued pursuant to a collateral agreement
entered into in connection with a compromise under section five-q, article ten of this chapter, which has been breached, and
if the period of limitation on collection after assessment has
not expired, the tax commissioner may revoke the certificate and
reinstate the lien:
(A) By mailing notice of the revocation to the person
against whom the tax was assessed at his or her last known
address; and
(B) By filing notice of the revocation in the same office in
which notice of lien to which it relates was filed (if the notice
of lien had been filed).
Such reinstated lien: (i) Shall be effective on the date
the notice of revocation is mailed to the taxpayer in accordance
with the provisions of the foregoing paragraph (A), but not
earlier than the date on which any required filing of notice of
revocation is filed in accordance with the provisions of the
foregoing paragraph (B); and (ii) shall have the same force and
effect (as of the date), until the expiration of the period of
limitation on collection after assessment, as a lien imposed by
section eleven, article ten of this chapter, (relating to lien
for taxes).
(3)
Certificates void under certain conditions. --
Notwithstanding any other provision of this article, any lien
imposed by this section shall attach to any property with respect
to which a certificate of discharge has been issued if the person
liable for payment of the tax reacquires the property after the
certificate has been issued.
§11-11-17a. Discharge of nonresident decedent's real property
in absence of ancillary administration.
(a) The domiciliary personal representative of a nonresident
decedent may apply to the tax commissioner for a certificate
releasing all real property situate in this state included in
decedent's gross estate from any lien imposed by section
seventeen of this article. In the absence of ancillary
administration in this state, the tax commissioner may consider
reliable and satisfactory evidence furnished by the personal
representative regarding the value of real property and the
amount of tax due under this article, or that no tax liability
exists under this article with respect to any real property.
(b) If the tax commissioner determines that reliable and
satisfactory evidence exists, an affidavit of value submitted by the personal representative made pursuant to and in conjunction
with the evidence shall be marked as inspected by the
commissioner and shall be filed by the estate in the county or
counties of this state where the real property is situate.
(c) In determining tax liability, the tax commissioner may
also consider an appraisal of the real property submitted in
writing to the tax commissioner, paid for by the personal
representative and made at the personal representative's request.
The appraisal shall be performed by a licensed real estate
appraiser acceptable to the tax commissioner and it shall be
filed in the county or counties where the real property is
situate.
(d) If the tax commissioner is satisfied that no tax
liability exists, or that the tax liability of the estate has
been fully discharged, the tax commissioner may issue a
certificate under subsection (f), section seventeen of this
article.
§11-11-19. Final accounting delayed until liability for tax
determined.
(a) If a personal representative is required to file a federal estate tax return for the estate of a decedent, then no
final account of that personal representative shall be allowed or
approved in any probate proceeding with respect to that estate,
by the county commission, or the clerk thereof, before whom the
proceeding is pending, unless the county commission finds that
the tax imposed on the transfer of property by this article has
been paid in full, or that no tax is due.
(b) No final account of a personal representative of an
estate shall be allowed by any county commission, or clerk
thereof, unless such account shows and the county commission, or
clerk thereof, finds that all taxes imposed by this article upon
the personal representative, which have become payable, have been
paid.
(c) The certificate of release, discharge or nonattachment
issued to the personal representative by the tax commissioner
under section seventeen of this article shall be conclusive in
the proceeding as to the liability or the payment of tax, to the
extent provided in the certificate.
§11-11-20. Liability of personal representatives; etc.
(a)
Personal representative. -- Any personal representative who distributes any property of an estate without first paying,
securing another's payment of, or furnishing security for payment
of the taxes due under this article, is personally liable for
payment of the taxes due, to the extent of the value of any
property that may come or that may have come into the possession
of the personal representative. Security for payment of taxes
due under this article shall be in an amount equal to or greater
than the value of all property that is or has come into the
possession of the personal representative, determined as of the
time the security is furnished.
(b)
Other person having control, custody or possession of
property. -- Any person in this state who has control, custody or
possession of any property includible in the gross estate of a
decedent for federal estate tax purposes, and who delivers any of
the property to the personal representative or other legal
representative of the decedent outside this state without first
paying, securing another's payment of, or furnishing security for
payment of the taxes due under this article, is liable for the
taxes due under this article to the extent of the value of the
property delivered. Security for payment of the taxes due under this article shall be in an amount equal to or greater than the
value of all property delivered to the personal representative or
other legal representative of the decedent outside this state by
such a person.
(c)
Persons not having control. -- For the purpose of this
section, persons do not have control, custody or possession of a
decedent's property if they are not responsible for paying the
tax due under this article, such as transferees, which term
includes, but is not limited to, stockbrokers or stock transfer
agents, banks and other depositories of checking and savings
accounts, safe deposit companies and life insurance companies.
(d)
Reliance upon tax commissioner's certificates. -- For
the purposes of this section, any person in this state who has
the control, custody or possession of any property includible in
the gross estate of the decedent for federal estate tax purposes,
and who delivers any of the property to the personal
representative or other legal representative of the decedent, may
rely upon the release or certificate furnished by the tax
commissioner under section seventeen of this article to the
personal representative as evidence of compliance with the requirements of this article, and make the deliveries and
transfers as the personal representative may direct without being
liable for any taxes due under this article with respect to any
property.
(e)
Discharge of personal liability for federal estate
taxes. -- If a personal representative receives a discharge from
personal liability for federal estate taxes pursuant to Section
2204 of the Internal Revenue Code of 1986, as amended, and if the
personal representative makes written application to the tax
commissioner for determination of the amount of the tax due under
this article and for discharge from personal liability, the tax
commissioner, within two months after receiving satisfactory
evidence of the Section 2204 discharge, but not after the
expiration of the period for issuance of a deficiency assessment,
shall notify the personal representative of the amount of the tax
due under this article, including the amount of any interest,
additions to tax or penalties that are due. The personal
representative, upon payment of the amount of which he is
notified (other than any portion for which an extension of time
for payment has been granted), and upon furnishing any bond that may be required by the tax commissioner to secure payment of any
amount for which the time for payment has been extended, shall be
discharged from personal liability for any deficiency in tax
thereafter found to be due and shall be entitled to a receipt or
writing showing the discharge.
§11-11-27. Prima facie liability for tax.
(a) The estate of each decedent whose property is subject to
the laws of this state and which is required to file a federal
estate tax return shall be deemed prima facie liable for payment
of estate taxes under this article and shall be subject to a lien
therefor in the amount as may be later determined to be due and
payable on the estate as provided in this article.
(b) This presumption of liability shall begin on the date of
the death of the decedent and shall continue until the full
settlement of all taxes which may be found to be due under this
article, the settlement to be shown by receipts for payment of
all taxes due under this article, to be issued by the tax
commissioner as provided for in this article.
(c) Whenever the tax commissioner determines that an estate
described in subsection (a) of this section is not liable for payment of tax under this article, the tax commissioner shall
issue to the personal representative a certificate in writing to
that effect, showing the nonliability to tax, which certificate
of nonliability shall have the same force and effect as a receipt
showing payment of tax. This certificate of nonliability may be
recorded and shall be admissible in evidence in like manner as
receipts showing payment of taxes due under this article.
§11-11-43. Effective date.
The amendments to this article made by this act shall take
effect as provided in the Constitution of this state and, upon
the effective date, these amendments shall apply to the estates
of all decedents dying after the thirtieth day of June, one
thousand nine hundred eighty-five, for which no estate tax lien
release has been issued by the tax commissioner prior to the
effective date of these amendments in the year one thousand nine
hundred ninety-five, and to estates of all decedents dying after
the effective date of these amendments.
CHAPTER 38. LIENS.
ARTICLE 10C. STATE AND LOCAL TAX LIENS.
§38-10C-1. Recordation necessary for priority of liens in favor
of state, political subdivision or municipality.
No lien in favor of the state of West Virginia, or any
political subdivision thereof or of any municipality therein,
whether heretofore or hereafter accruing, except the lien for
taxes accruing under the provisions of article eight, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, shall be enforceable as against a purchaser
(including lien creditor) of real estate or personal property for
a valuable consideration, without notice, unless docketed, as
hereinafter provided, in the office of the clerk of the county
commission of the county wherein the real estate or personal
property is, before a deed therefor to the purchaser is delivered
for record to the clerk of the county commission of such county:
Provided, That when docketed in accordance with section two of
this article, the lien shall have priority over all other
subsequently filed liens authorized by this code. The term
"purchaser" as used herein shall be construed to include lien
creditors whose liens were acquired and perfected prior to such
docketing.
NOTE: The purpose of this bill is to provide for a taxpayer bill of rights.
Sections four, five-a, eight, twelve, thirteen, thirteen-a,
thirteen-c, thirteen-k and fourteen, article ten; and sections
three, seventeen, seventeen-a, nineteen, twenty and twenty-seven,
article eleven, all of chapter eleven; and section one, article
ten-c, chapter thirty-eight are all completely rewritten;
therefore, strike-throughs and underscoring have been omitted.
Sections one-a, one-b, five-t, six-a, six-b, seven-b,
seven-c, eight-a, nine-b, eleven-a, eleven-b, eleven-c, twelve-a,
thirteen-l, fourteen-c and fourteen-d, article ten; and section
forty-three, article eleven, all of chapter eleven are new;
therefore, strike-throughs and underscoring have been omitted.