H. B. 2812
(By Delegate Michael)
[Introduced February 17, 1999; referred to the
Committee on Finance.]
A BILL to amend and reenact sections nine-d and twenty, article
fifteen, chapter eleven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact sections three-d, ten and eleven, article fifteen-a
of said chapter; and to amend and reenact section
seventy-four, article twenty-one of said chapter, all
relating to increasing thresholds before small businesses
and independent contractors must file monthly or quarterly
returns under the consumers sales and service tax, use tax
and employer withholding tax and pay taxes due with those
returns.
Be it enacted by the Legislature of West Virginia:
That sections nine-d and twenty, article fifteen, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and sections
three-d, ten and eleven, article fifteen-a of said chapter be amended and reenacted; and section seventy-four, article
twenty-one of said chapter be amended and reenacted, all to read
as follows:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-9d. Direct pay permits.
(a) Notwithstanding any other provision of this article, the
tax commissioner may, pursuant to rules promulgated by him or her
in accordance with article three, chapter twenty-nine-a of this
code, authorize a person that is a user, consumer, distributor or
lessee to which sales or leases of tangible personal property are
made or services provided, to pay any tax levied by this article
or article fifteen-a of this chapter directly to the tax
commissioner and waive the collection of the tax by that person's
vendor. No such authority shall be granted or exercised except
upon application to the tax commissioner and after issuance by
the tax commissioner of a direct pay permit. Each direct pay
permit granted pursuant to this section is valid until
surrendered by the holder or canceled for cause by the
commissioner. The commissioner shall prescribe by rules
promulgated in accordance with article three, chapter
twenty-nine-a of this code, those activities which will cause
cancellation of a direct pay permit issued pursuant to this
section. Upon issuance of a direct pay permit, payment of the
tax imposed or assertion of the exemptions allowed by this
article or article fifteen-a of this chapter on sales and leases of tangible personal property and sales of taxable services from
the vendors of the personal property or services shall be made
directly to the tax commissioner by the permit holder.
(b) On or before the fifteenth day of each month, every
permit holder shall make and file with the tax commissioner a
consumers sales and use tax direct pay permit return for the
preceding month in the form prescribed by the tax commissioner
showing the total value of the tangible personal property used,
the amount of taxable services purchased, the amount of consumers
sales and use taxes due from the permit holder, which shall be
paid to the tax commissioner with the return, and such other
information as the tax commissioner considers necessary:
Provided, That if the amount of consumers sales and use taxes due
averages less than
one two hundred
fifty dollars per month, the
tax commissioner may permit the filing of quarterly returns in
lieu of monthly returns and the amount of tax shown on the
returns to be due shall be remitted on or before the fifteenth
day following the close of the calendar quarter; and if the
amount due averages less than
one hundred fifty dollars per
calendar quarter, the tax commissioner may permit the filing of
an annual direct pay permit return and the amount of tax shown on
the return to be due shall be remitted on or before the last day
of January each year:
Provided, however, That the tax
commissioner may, by nonemergency legislative rules promulgated
pursuant to chapter twenty-nine-a of this code, change the foregoing minimum amounts. The tax commissioner, upon written
request by the permit holder, may grant a reasonable extension of
time, upon such terms as the tax commissioner may require, for
the making and filing of direct pay permit returns and paying the
tax due. Interest on the tax shall be chargeable on every
extended payment at the rate specified in section seventeen,
article ten of this chapter.
(c) A permit issued pursuant to this section is valid until
expiration of the taxpayers registration year under article
twelve of this chapter. This permit shall automatically be
renewed when the taxpayers business registration certificate is
issued for the next succeeding fiscal year, unless the permit is
surrendered by the holder or canceled for cause by the tax
commissioner.
(d) Persons who hold a direct payment permit which has not
been canceled are not required to pay the tax to the vendor as
otherwise provided in this article or article fifteen-a of this
chapter. They shall notify each vendor from whom tangible
personal property is purchased or leased or from whom services
are purchased of their direct payment permit number and that the
tax is being paid directly to the tax commissioner. Upon receipt
of the notice, the vendor is absolved from all duties and
liabilities imposed by this chapter for the collection and
remittance of the tax with respect to sales of tangible personal
property and sales of services to the permit holder. Vendors who
make sales upon which the tax is not collected by reason of the provisions of this section shall maintain records in such manner
that the amount involved and identity of each purchaser may be
ascertained.
(e) Upon the expiration, cancellation or surrender of a
direct payment permit, the provisions of this chapter, without
regard to this section, shall thereafter apply to the person who
previously held the permit, and that person shall promptly notify
in writing vendors from whom tangible personal property or
services are purchased or leased of the cancellation or
surrender. Upon receipt of the notice, the vendor is subject to
the provisions of this chapter, without regard to this section,
with respect to all sales, distributions, leases or storage of
tangible personal property, thereafter made to or for that
person.
(f) The amendments to this section enacted in the year one
thousand nine hundred ninety-nine shall be effective for tax
years beginning on or after the first day of January, two
thousand.
§11-15-20. Quarterly and annual returns.
(a) When the total consumers sales and use tax remittance
for which a person is liable does not exceed an average monthly
amount over the taxable year of two hundred fifty dollars for any
month, he may pay such tax and make a quarterly return on or
before the fifteenth day of the first month in the next
succeeding quarter in lieu of monthly returns: Provided, That the tax commissioner may, by nonemergency legislative rules
promulgated pursuant to chapter twenty-nine-a of this code,
change the foregoing minimum amount.
(b) When the total consumers sales and use tax remittance
for which a person is liable does not in the aggregate exceed six
hundred dollars for the taxable year, he or she may pay such tax
and make an annual return on or before the fifteenth day of the
first month next succeeding the end of his or her taxable year:
Provided, That the tax commissioner may, by nonemergency
legislative rules promulgated pursuant to chapter twenty-nine-a
of this code, change the foregoing minimum amount.
(c) The amendments to this section enacted in the year one
thousand nine hundred ninety-nine shall be effective for tax
years beginning on or after the first day of January, two
thousand.
§11-15A-3d. Direct pay permits.
(a) Notwithstanding any other provision of this article, the
tax commissioner may, pursuant to rules promulgated by him or her
in accordance with article three, chapter twenty-nine-a of this
code, authorize a person (as defined in section two of article
fifteen) that is a user, consumer, distributor or lessee to which
sales or leases of tangible personal property are made or
services provided to pay any tax levied by this article or
article fifteen of this chapter directly to the tax commissioner
and waive the collection of the tax by that person's vendor. No such authority shall be granted or exercised except upon
application to the tax commissioner and after issuance by the tax
commissioner of a direct pay permit. Each direct pay permit
granted pursuant to this section shall continue to be valid until
surrendered by the holder or canceled for cause by the
commissioner. The commissioner shall prescribe by rules
promulgated in accordance with article three, chapter
twenty-nine-a of this code, those activities which will cause
cancellation of a direct pay permit issued pursuant to this
section. Upon issuance of such direct pay permit, payment of the
tax imposed or assertion of the exemptions allowed by this
article or article fifteen of this chapter on sales and leases of
tangible personal property and sales of taxable services from the
vendors thereof shall be made directly to the tax commissioner by
the permit holder.
(b) On or before the fifteenth day of each month, every
permit holder shall make and file with the tax commissioner a
consumers sales and use tax direct pay permit return for the
preceding month in the form prescribed by the tax commissioner
showing the total value of the tangible personal property so
used, the amount of taxable services purchased, the amount of tax
due from the permit holder, which amount shall be paid to the tax
commissioner with such return, and such other information as the
tax commissioner deems necessary: Provided,
That if the amount
of consumers sales and use taxes due averages less than one two
hundred fifty dollars per month, the tax commissioner may permit the filing of quarterly returns in lieu of monthly returns and
the amount of tax shown thereon to be due shall be remitted on or
before the fifteenth day following the close of the calendar
quarter; and if the amount due averages less than one hundred
fifty dollars per calendar quarter, the tax commissioner may
permit the filing of an annual direct pay permit return and the
amount of tax shown thereon to be due shall be remitted on or
before the last day of January each year: Provided, That the tax
commissioner may, by nonemergency legislative rules promulgated
pursuant to chapter twenty-nine-a of this code, change the
foregoing minimum amounts. The tax commissioner, upon written
request filed by the permit holder before the due date of the
return, may grant a reasonable extension of time, upon such terms
as the tax commissioner may require, for the making and filing of
direct pay permit returns and paying the tax due. Interest on
such tax shall be chargeable on every such extended payment at
the rate specified in section seventeen, article ten of this
chapter.
(c) A permit issued pursuant to this section shall continue
to be valid until expiration of the taxpayer's registration year
under article twelve of this chapter. This permit shall
automatically be renewed when the taxpayer's business
registration certificate is issued for the next succeeding fiscal
year, unless the permit is surrendered by the holder or canceled
for cause by the tax commissioner.
(d) Persons who hold a direct payment permit which has not been canceled shall not be required to pay the tax to the vendor
as otherwise provided in this article or article fifteen of this
chapter. Such persons shall notify each vendor from whom
tangible personal property is purchased or leased or from whom
services are purchased of their direct payment permit number and
that the tax is being paid directly to the tax commissioner.
Upon receipt of such notice, such vendor shall be absolved from
all duties and liabilities imposed by this chapter for the
collection and remittance of the tax with respect to sales,
distributions, leases or storage of tangible personal property
and sales of services to such permit holder. Vendors who make
sales upon which the tax is not collected by reason of the
provisions of this section shall maintain records in such manner
that the amount involved and identity of each such purchaser may
be ascertained.
(e) Upon the expiration, cancellation or surrender of a
direct payment permit, the provisions of this chapter, without
regard to this section, shall thereafter apply to the person who
previously held such permit, and such person shall promptly so
notify in writing vendors from whom tangible personal property or
services are purchased of such cancellation or surrender. Upon
receipt of such notice, the vendor shall be subject to the
provisions of this chapter, without regard to this section, with
respect to all sales of tangible personal property or taxable
services, thereafter made to or for such person.
(f) The amendments to this section enacted in the year one thousand nine hundred ninety-nine shall be effective for tax
years beginning on or after the first day of January, two
thousand.
§11-15A-10. Payment to tax commissioner.
Each retailer required or authorized, pursuant to sections
six or seven, to collect the tax herein imposed, shall be
required to pay to the tax commissioner the amount of such tax on
or before the fifteenth day of the month next succeeding each
quarterly period. At such time, each retailer shall file with
the tax commissioner a return for the preceding quarterly period
in such form as may be prescribed by the tax commissioner showing
the sales price of any or all tangible personal property sold by
the retailer during such preceding quarterly period, the use of
which is subject to the tax imposed by this article, and such
other information as the tax commissioner may deem necessary for
the proper administration of this article. The return shall be
accompanied by a remittance of the amount of such tax, for the
period covered by the return: Provided, That where such tangible
personal property is sold under a conditional sales contract, or
under any other form of sale wherein the payment of the principal
sum, or a part thereof is extended over a period longer than
sixty days from the date of the sale thereof, the retailer may
collect and remit each quarterly period that portion of the tax
equal to five six percent of that portion of the purchase price
actually received during such quarterly period. The tax commissioner, if he or she deems it necessary in order to insure
payment to the state of the amount of such tax, may in any or all
cases require returns and payments of such amount to be made for
other than quarterly periods. The tax commissioner may, upon
request and a proper showing of the necessity therefor, grant an
extension of time not to exceed thirty days for making any return
and payment. Returns shall be signed by the retailer or his or
her duly authorized agent, and must be certified by him or her to
be correct.
§11-15A-11. Liability of user.
(a) Any person who uses any
tangible personal property upon
which the tax herein imposed has not been paid either to a
retailer or direct to the tax commissioner as herein provided,
shall be liable therefor, and persons required by law to hold a
West Virginia business registration certificate shall on or
before the fifteenth day of the month next succeeding each
quarterly period pay the tax herein imposed upon all such
property used by him or her during the preceding quarterly period
in such manner and accompanied by such returns as the tax
commissioner shall prescribe: Provided, That, if the aggregate
annual tax liability of such persons under this article is six
hundred dollars or less, such persons shall, in lieu of the
quarterly payment and filing, pay the tax on or before the
fifteenth day of the first month next succeeding the end of his
or her taxable year, and shall file such annual return as may be prescribed by the tax commissioner. The tax commissioner may, by
nonemergency legislative rules promulgated pursuant to chapter
twenty-nine-a of this code, change the foregoing minimum amounts.
(b) Any individual who is not required by law to hold a
West Virginia business registration certificate, who uses any
tangible personal property or taxable service upon which the West
Virginia use tax has not been paid either to a retailer or
directly to the tax commissioner shall be liable for the West
Virginia use tax upon such property or taxable services and,
notwithstanding the amount of the annual aggregate annual tax
liability, shall pay the use tax imposed upon all such property
or taxable services used by him or her during the taxpayer's
federal taxable year on or before the fifteenth day of April of
the taxpayer's next succeeding federal tax year, and shall file
such annual return therewith as the tax commissioner may
authorize or require.
(c) All of the provisions of section ten with reference to
such quarterly or annual returns and payments shall be applicable
to the returns and payments herein required under this section.
(d) The amendments to this section enacted in the year one
thousand nine hundred ninety-nine shall be effective for tax
years beginning on or after the first day of January, two
thousand.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-74. Employer's return and payment of withheld taxes.
(a) General.--Every employer required to deduct and withhold
tax under this article shall, for each calendar quarter, on or
before the last day of the month following the close of such
calendar quarter, file a withholding return as prescribed by the
tax commissioner and pay over to the tax commissioner the taxes
so required to be deducted and withheld. Where the aggregate
average quarterly amount so deducted and withheld by any employer
is less than twenty-five one hundred fifty dollars in a calendar
quarter and the aggregate for the calendar year can reasonably be
expected to be less than one six hundred dollars, the tax
commissioner may by regulation permit an employer to file an
annual return and pay over to the tax commissioner the taxes
deducted and withheld on or before the last day of the month
following the close of such calendar year: Provided, That the
tax commissioner may, by nonemergency legislative rules
promulgated pursuant to chapter twenty-nine-a of this code,
change the foregoing minimum amounts. The tax commissioner may,
if he or she believes such action necessary for the protection of
the revenues, require any employer to make such return and pay to
him
or her the tax deducted and withheld at any time, or from
time to time.
(b) Monthly returns and payments of withheld tax on and
after June 1, 1971.--Notwithstanding the provisions of subsection
(a), on and after June 1, 1971, every employer required to deduct
and withhold tax under this article shall, for each of the first eleven months of the calendar year, on or before the twentieth
day of the succeeding month and for the last calendar month of
the year, on or before the last day of the succeeding month, file
a withholding return as prescribed by the tax commissioner and
pay over to the tax commissioner the taxes so required to be
deducted and withheld, if such withheld taxes aggregate one
hundred two hundred fifty dollars or more for such month; except
any employer with respect to whom the tax commissioner may have
by regulation provided otherwise in accordance with the
provisions of subsection (a) of this section. Provided,
That in
accordance with regulations promulgated by the tax commissioner,
a payment of withheld tax may be subject to the credit set forth
in section nine-b, article fifteen of this chapter and the credit
set forth in section three-b, article fifteen-a of this chapter.
(c) Employers of domestic and household employees whose
withholdings of federal income tax are annually paid and reported
by the employer pursuant to the filing of Schedule H of federal
form 1040, 1040A, 1040NR, 1040NR-EZ, 1040-SS or 1041 may, on or
before the thirty-first day of January next succeeding the end of
the calendar year for which withholdings are deducted and
withheld, file an annual withholding return with the tax
commissioner and annually remit to the tax commissioner West
Virginia personal income taxes deducted and withheld for such
employees. The tax commissioner may promulgate legislative or
other rules pursuant to chapter twenty-nine-a of this code for
implementation of this subsection.
(c) (d) Deposit in trust for tax commissioner.--Whenever
any employer fails to collect, truthfully account for, or pay
over the tax, or to make returns of the tax as required in this
section, the tax commissioner may serve a notice requiring such
employer to collect the taxes which become collectible after
service of such notice, to deposit such taxes in a bank approved
by the tax commissioner, in a separate account, in trust for and
payable to the tax commissioner, and to keep the amount of such
tax in such account until payment over to the tax commissioner.
Such notice shall remain in effect until a notice of cancellation
is served by the tax commissioner.
(d) (e) Accelerated payment.
(1) Notwithstanding the provisions of subsections (a) and
(b) of this section, for calendar years beginning after the
thirty-first day of December, one thousand nine hundred ninety,
every employer required to deduct and withhold tax whose average
payment per calendar month for the preceding calendar year under
subsection (b) of this section exceeded one hundred thousand
dollars shall remit the tax attributable to the first fifteen
days of June each year on or before the twenty-third day of said
month of June.
(2) For purposes of complying with subdivision (1) of this
subsection (d) (e), the employer shall remit an amount equal to
the withholding tax due under this article on employee
compensation subject to withholding tax payable or paid to employees for the first fifteen days of June or, at the
employer's election, the employer may remit an amount equal to
fifty percent of the employer's liability for withholding tax
under this article on compensation payable or paid to employees
for the preceding month of May.
(3) For an employer which has not been in business for a
full calendar year, the total amount the employer was required to
deduct and withhold under subsection (b) of this section for such
prior calendar year shall be divided by the number of months,
including fractions of a month, that it was in business during
such prior calendar year, and if that amount exceeds one hundred
thousand dollars, the employer shall remit the tax attributable
to the first fifteen days of June each year on or before the
twenty-third day of said month of June, as provided in
subdivision (2) of this subsection (d) (e).
(4) When an employer required to make an advanced payment of
withholding tax under subdivision (1) of this subsection (d) (e)
makes out its return for the month of June, which is due on the
twentieth day of July, such employer may claim as a credit
against its liability under this article for tax on employee
compensation paid or payable for employee services rendered
during the month of June the amount of the advanced payment of
tax made under subdivision (1) of this subsection (d) (e).
(f) The amendments to this section enacted in the year one
thousand nine hundred ninety-nine shall be effective for tax
years beginning on or after the first day of January, two thousand.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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