COMMITTEE SUBSTITUTE
FOR
H. B. 2354
(By Delegates Jenkins, Kiss, Ashley, Thompson and Amores)
(Originating in the Committee on Finance)
[February 20, 1996]
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 article one-c of said
chapter by adding thereto a new section, designated section
fourteen; to amend and reenact section fourteen, article ten
of said chapter; to further amend said article by adding
thereto four new sections, designated sections seven-b, seven-
c, 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, 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; confidentiality and
disclosure of return information to develop or maintain a mineral mapping or geographic information system; creating an
offense and setting forth penalties; petition for
reassessments; 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; 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thirty-one, be repealed; that article one-c of said chapter be
amended by adding thereto a new section, designated section
fourteen; that section fourteen, article ten of said chapter be
amended and reenacted; that said article be further amended by
adding thereto four new sections, designated sections seven-b,
seven-c, 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; and that
said article be further amended by adding thereto a new section,
designated section forty-three, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.
§11-1C-14. Confidentiality and disclosure of return information
to develop or maintain a mineral mapping or geographic information system; offenses; penalties.
(a) All information provided by or on behalf of a natural
resources property owner or by or on behalf of an owner of an
interest in natural resources property to any state or county
representative for use in the valuation or assessment of natural
resources property or for use in the development or maintenance
of a legislatively funded mineral mapping or geologic information
system shall be confidential. Such information shall be exempt
from disclosure under section four, article one of chapter
twenty-nine-b of this code, and shall be kept, held and
maintained confidential except to the extent such information is
needed by the state tax commissioner to defend an appraisal
challenged by the owner or lessee of the natural resources
property subject to the appraisal.
Provided, That this section
may not be construed to prohibit the publication or release of
information generated as a part of the minerals mapping or
geologic information system, whether in the form of aggregated
statistics, maps, articles, reports, professional talks or
otherwise, presented in accordance with generally accepted
practices and in a manner so as to preclude the identification or
determination of information about particular property owners.
(b) Any state or county representative who violates this
section by disclosing confidential information shall be guilty of
a misdemeanor and, upon conviction thereof, shall be fined not
more than one thousand dollars or imprisoned for not more than
one year, or both, such fine and imprisonment, together with the cost of prosecution. As used in this section, the term "state or
county representative" includes any current or former state or
county employee, officer, commission or board member, and any
state or county agency, institution, organization, contractor or
subcontractor, and any principal, officer, agent or employee
thereof.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-7b. Abatement of interest attributable to errors
and 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. -- 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.
§11-10-14. 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, except that the assessment may be issued or civil
action brought within five years from such date if it appears that any portion of the refund or credit was induced by fraud or
misrepresentation of a material fact.
(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 is 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-six, shall apply to claims for
refund or credit filed on or after the first day of July, one
thousand nine hundred ninety-six.
§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-seven.
§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
corporation net income taxes filed after the first day of
January, one thousand nine hundred ninety-seven.
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 section three
of 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 spouse,
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 for
federal estate tax purposes, 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 spouse, 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 such 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 such 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 such 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 such 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 such 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 written notice, by certified mail, return
receipt requested, 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-six, and to estates of all decedents dying on or
after the effective date of these amendments.