H. B. 2817
(By Delegate Jenkins)
[Introduced February 24, 1995; referred to the
Committee on Finance.]
A BILL to amend and reenact sections eight, ten, fourteen and
seventeen, article ten, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said chapter by adding thereto a new
article, designated article ten-a, all relating to West
Virginia tax procedure and administration; creation of a
board of tax and revenue appeals; notice of assessment;
petition for reassessment or payment of assessment within
sixty days; finality of assessment; payment of final
assessment; effective date; termination date; appeals;
overpayments; credits; refunds and limitations; extensions of time for filing; overpayment of federal taxes; transition
rules; interest; legislative purpose; definitions; board of
tax and revenue appeals created; jurisdiction of board;
composition of board; appointment, qualifications, term of
office and removal of members; conflicts of interest
prohibited; oath of office; credentials; compensation of
board members; executive director; employees; expenses;
conflicts of interest prohibited; powers; duties; operation
of board; principal office; general practice and procedure;
small claims procedure; disputes involving ten thousand
dollars or less; recordation of hearings; notice that
hearing to be recorded; representation of parties; notice of
right to representation at hearing; written decisions
required; proposed findings of fact and conclusions of law;
notice; publication of decisions; finality of board
decisions; petition for rehearing; judicial review; service
of notice of administrative decisions; timely filing; time
for performance of acts when last day falls on Saturday,
Sunday or legal holiday; confidentiality and disclosure of
returns and return information; criminal penalty; effective date; transition rules; and severability.
Be it enacted by the Legislature of West Virginia:
That sections eight, ten, fourteen and seventeen, article
ten, chapter eleven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted;
and that said chapter eleven be further amended by adding thereto
a new article, designated article ten-a, all to read as follows:
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-8. Notice of assessment; petition for reassessment or
payment of assessment within sixty days; finality of
assessment; payment of final assessment; effective date.
(a)
Notice of assessment. -- The tax commissioner shall give
the taxpayer written notice of any assessment or 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 not subject to either administrative or judicial
review under the provisions of sections nine or nine-a, and ten
of this article unless the taxpayer to whom a notice of
assessment or 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) either:
(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 his duly authorized agent,
having knowledge of the facts, setting forth with particularity
the items of the assessment objected to, together with the
reasons 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 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. -- The amount of an assessment or
amended or supplemental assessment shall be due and payable on
the day following the date upon which the assessment or amended
or supplemental assessment becomes final. Payment of the amount
of the assessment, or amended or supplemental assessment, as
provided in subdivision (2), subsection (a) of this section,
within sixty days after service of notice of such assessment shall not prohibit or otherwise bar the taxpayer from filing a
claim for refund or credit under the provisions of section
fourteen
or fourteen-b of this article within the time prescribed
therein for the filing of a claim for refund or credit.
(c)
Payment of assessment after petition filed. -- A taxpayer
who has timely filed a petition for reassessment may, at any time
prior to issuance of the
tax commissioner's administrative
decision under section nine or nine-a of this article,
or under
article ten-a of this chapter, pay under protest the amount of
the assessment. 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
or under
article ten-a of this chapter 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
originally amended, shall apply to all
assessments (including amended and supplemental assessments)
which are issued on or 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) As subsequently amended in one thousand nine hundred
ninety-five, this section shall not apply to assessments
(including amended and supplemented assessments) issued after the
thirty-first day of December, one thousand nine hundred
ninety-six, which shall be subject to the provisions of article
ten-a of this chapter.
§11-10-10. Appeals.
(a)
Right of appeal. --
(1) A taxpayer may appeal the administrative decision of the
tax commissioner issued under section nine or fourteen of this
article, by taking an appeal to the circuit courts of this state
within sixty days after being served with notice of the
administrative decision.
(2) A taxpayer may appeal an administrative decision of the
board of tax and revenue appeals as provided in section
seventeen, article ten-a of this chapter.
(b)
Venue. -- The appeal may be taken in the circuit court of
any county:
(1) Wherein the activity taxed was engaged in; or
(2) Wherein the taxpayer resides; or
(3) Wherein the will of the decedent was probated or letters
of administration granted; or
(4) To the circuit court of Kanawha County.
(c)
Petition for appeal. -- The appeal proceeding shall be
instituted by filing a petition with the circuit court, or the
judge thereof in vacation, within the sixty-day period prescribed
in subsection (a)
of this section. The clerk of the circuit
court shall, within ten days after date the petition is filed,
serve the tax commissioner with a copy of the same by registered
or certified mail. This petition shall be in writing, verified
under oath by the taxpayer, or his duly authorized agent, having
knowledge of the facts, set forth with particularity the items of
the administrative decision or the assessment objected to, together with the reasons for such objections.
(d)
Appeal bond. -- If the appeal is of any assessment for
additional taxes (except a jeopardy assessment for which security
in the amount thereof was previously filed with the tax
commissioner), then within ninety days after the petition for
appeal is filed, or sooner if ordered by the circuit court, the
taxpayer shall file with the clerk of the circuit court a cash
bond or a corporate surety bond approved by the clerk. The
surety must be qualified to do business in this state. These
bonds shall be conditioned that the taxpayer shall perform the
orders of the court. The penalty of this bond shall be not less
than the total amount of tax, additions to tax, penalties and
interest for which the taxpayer was found liable in the
administrative decision of the tax commissioner. Notwithstanding
the foregoing and in lieu of such bond, the tax commissioner, in
his discretion upon such terms as he may prescribe, may upon a
sufficient showing by the taxpayer, certify to the clerk of the
circuit court that the assets of the taxpayer subject to the lien
imposed by section twelve of this article, or other
indemnification, are adequate to secure performance of the orders of the court.
(e)
Hearing of appeal. -- The court shall hear the appeal and
determine anew all questions submitted to it on appeal from the
determination of the tax commissioner. In such appeal a
certified copy of the tax commissioner's notice of assessment or
amended or supplemental assessment and administrative decision
thereon shall be admissible and shall constitute prima facie
evidence of the tax due under the provisions of those articles of
this chapter to which this article is applicable. The court
shall render its decree thereon and a certified copy of said
decree shall be filed by the clerk of the court with the tax
commissioner who shall then correct the assessment in accordance
with the decree. An appeal may be taken by the taxpayer or the
tax commissioner to the supreme court of appeals of this state.
§11-10-14. Overpayments; credits; refunds; and limitations;
extension of time for filing; overpayment of federal taxes;
transition rules.
(a)
Refunds or credits of overpayments. -- In the case of
overpayment of any tax, additions to tax, penalties or interest
imposed by this article or any of the other articles of this
chapter 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
such 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 credit 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 tax under the
provisions of section ten, eleven or twelve of article fourteen
or the provisions of section nine or eleven of 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 these claims provided in
subsection (d)
of this section shall not apply to such 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 an 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 for refund or credit; hearing. -- If the
taxpayer is not satisfied with the tax commissioner's
determination of his claim for refund or credit, or if the tax
commissioner has not determined the taxpayer's claim within
ninety days after such claim was filed, or six months in the case
of claims for refund or credit of the taxes imposed by articles
twenty-one 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 his claim. The petition for refund or credit shall be
in writing, verified under oath by the said taxpayer or his 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. When a petition for refund or credit is properly filed,
with the tax
commissioner prior to the first day of May, one thousand nine
hundred ninety-seven, the procedures for hearing and for decision
prescribed in section nine shall be followed.
On or after the
first day of July, one thousand nine hundred ninety-seven, a
petition for refund or credit shall be filed with the board of
tax and revenue appeals and the provisions of article ten-a of
this chapter shall be followed.
(e)
Appeal. -- An appeal from the tax commissioner's 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
set forth in section
eleven ten relating to an appeal from the
tax commissioner's decision on a petition for reassessment, but
no bond shall be required of the taxpayer.
An appeal from the
board's decision, if taken by the taxpayer, shall be taken as
provided in article ten-a of this chapter.
(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 such
warrant out of the fund into which the amount so refunded was
originally paid
or, in the case of refunds of personal income
tax, out of the fund established under 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 or article 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 a credit.
(i)
Remedy exclusive. -- The procedure provided by this
section shall constitute the sole method of obtaining any refund
or any credit, it being the intent hereof 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; transition rules. -- The
provisions of this section shall apply to refunds or credits of
any tax, additions to tax, penalties or interest imposed by any
article of this chapter to which this article is applicable, for
any refund or credit sought after the first day of July, one
thousand nine hundred seventy-eight, irrespective of whether the
claim of refund or credit is for a tax period ending prior to
that date.
This section, as amended in the year one thousand nine
hundred ninety-five, shall apply to all petitions filed after the
first day of July, one thousand nine hundred ninety-seven. As to
petitions filed on or before said date, the provisions of this
section as in effect when the petition was filed shall apply and are fully preserved: Provided, That as to any such petitions
filed with the tax commissioner, which remain on the tax
commissioner's hearing docket as of the close of business on the
first day of July, one thousand nine hundred ninety-seven, and
for which no administrative hearing was had under section nine of
this article, the tax commissioner shall transmit the petition
therefor to the board of tax and revenue appeals as soon as
practicable after the said first day of July; and thereafter, the
petition so transmitted shall, for all purposes except timeliness
of filing, be treated as if it had been filed with the board of
tax and revenue appeals on the first day of July, one thousand
nine hundred ninety-six.
(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
may make an assessment or institute civil action to recover the
amount of such refund or credit
within two years from the date
the refund was made or the credit was established: Provided,
That for credits granted under article thirteen-c, thirteen-d or
thirteen-e of this chapter, section eight-a, article twenty-one of this chapter or section twenty-three-a, article twenty-four of
this chapter, such investigations, assessments and civil actions
may be brought or pursued by the tax commissioner against a
taxpayer or his successor at any time during the time that such
taxpayer or successor may be entitled to take such credit against
any tax, and three years subsequent to the termination of such
entitlement.
(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, additions to tax,
penalties or interest paid into the treasury of this state, such
taxpayer shall, except as provided in subsection (d)
of this
section, file his
or her claim within three years after the due
date of the return in respect of which the tax was imposed or
within two years from the date the tax was paid, whichever of
such the periods expires the later, or if no return was filed by
the taxpayer, within two years from the time the tax was paid,
and not thereafter.
(2)
Extension of time for filing claim by agreement. -- The
tax commissioner and the taxpayer may enter into 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 the expiration of the period previously
agreed upon.
(3) Special rule where agreement to extend time for making an
assessment. -- Notwithstanding 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 a tax can be made, then the time period
for filing a claim for refund or credit for an 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
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
or estate tax liability, the period of limitation upon claiming a refund reflecting such final determination in
taxes imposed by articles
eleven, twelve-a, twenty-one and
twenty-four of this chapter shall not expire until six months
after such determination is made by the United States Internal
Revenue Service or other competent authority.
(5)
Deficiencies in business and occupation or carrier income
taxes. -- Notwithstanding subdivisions (1) and (2) of this
subsection, in the event of a final administrative or judicial
determination of a deficiency in the taxpayer's liability for
taxes imposed by articles twelve-a and thirteen of this chapter,
the period of limitation upon claiming a refund reflecting such
final determination in the taxes imposed by articles twenty-one
and twenty-four of this chapter shall not expire until six months
after such final determination is made.
(6) Special rule where payment of tax is erroneously made to
another state. -- Notwithstanding subdivisions (1) and (2) of
this subsection, where a taxpayer has erroneously paid tax to
this state and has subsequently correctly paid tax on the same
income or transaction to another state and no dispute exists as
to the correct jurisdiction to tax said income or transaction, then the time period for filing a claim or refund or credit for
the erroneous overpayment of the same tax shall be extended to
the date the tax was correctly paid to another state plus ninety
days.
(6) (7) Exception for gasoline and special fuel excise tax
and motor carrier road tax. -- This subsection
(k) (l) 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 article fourteen-a of this chapter.
(7) Transition rules. -- The general rule prescribed in
subdivision (1) of this subsection shall be subject to the
following transition rules:
(A) For tax periods ending prior to July 1, 1967. -- With
respect to any tax imposed for any period ending prior to the
first day of July, one thousand nine hundred sixty-seven, the
taxpayer must file his claim within three years from the date of
payment and not thereafter.
(B) For tax periods ending on or after July 1, 1967, but
prior to January 1, 1979. -- With respect to any tax imposed for
any period ending after the first day of July, one thousand nine hundred sixty-seven, but prior to the first day of January, one
thousand nine hundred seventy-nine, the taxpayer must file his
claim within five years from the date of payment and not
thereafter.
(C) For tax periods ending after December 31, 1978, but
prior to January 1, 1980. -- With respect to any tax imposed for
any period ending after the thirty-first day of December, one
thousand nine hundred seventy-eight, but prior to the first day
of January, one thousand nine hundred eighty, the taxpayer must
file his claim within four years from the date of payment and not
thereafter.
§11-10-17. Interest.
(a)
Underpayments. -- If any amount of a tax administered
under this article is not paid on or before the last date
prescribed for payment, interest on such amount at the rate of
eight percent per annum shall be paid for the period from such
last date to the date paid:
Provided, That on and after the
first day of July, one thousand nine hundred eighty-six, interest
on under payments shall be paid at
an annual rate of one percent
above the annual rate established under section seventeen-a
of this article, from the period beginning on the said first day of
July, or from the last day prescribed for payment, whichever is
the later, to the date paid, regardless of when liability for the
tax arose. For purposes of this subsection, the last date
prescribed for payment shall be the due date of the return and
shall be determined without regard to any extension of time for
payment.
(b)
Last date for payment not otherwise prescribed. -- In the
case of taxes payable by stamp or other indicia of tax payment
and in all other cases in which the last day for payment is not
otherwise prescribed, the last date for payment shall be deemed
to be the date the liability for tax arises and in no event shall
be later than the date notice and demand for payment of the tax
is made by the tax commissioner.
(c)
Erroneous refund or credit. -- If any refund is made or
credit is established upon an erroneous claim for refund or
credit, interest on such amount refunded or credited at the
annual rate established under section seventeen-a
of this
article, shall be paid by the claimant from the date the refund
was made or the credit was taken to the date such amount is recovered.
(d)
Overpayments. -- Interest shall be allowed and paid at
the annual rate of eight percent per annum upon any amount which
has been finally administratively or judicially determined to be
an overpayment in respect of each tax administered under this
article except the taxes imposed by articles twelve, fourteen and
fourteen-a of this chapter:
Provided, That on and after the
first day of July, one thousand nine hundred eighty-six, interest
on overpayments shall be paid at the annual rate established
under section seventeen-a
of this article, from said first day of
July, or the date the claim for refund or credit is filed,
whichever is the later, regardless of when the tax was paid.
Such interest shall be allowed and paid for the period commencing
with the date of the filing by the taxpayer of a claim for refund
or credit with the tax commissioner and ending with the date of
a final administrative or judicial determination of overpayment.
The tax commissioner shall, within thirty days after such
determination of entitlement to refund, issue his requisition or
establish a credit as requested by the taxpayer. Whenever the
tax commissioner fails or refuses to issue any such requisition or establish such credit within said thirty-day period, the
interest provided herein shall commence to accrue until
performance by the tax commissioner. The acceptance of such
refund check or credit shall be without prejudice to any right of
the taxpayer to claim any additional overpayment and interest
thereon.
(e)
Applicable rules. -- For purposes of this section:
(1)
No interest payable on tax refunded or credited within
ninety days after claim for refund or credit is filed. -- In the
event of the overpayment of any tax administered under this
article, except the tax imposed by articles twenty-one and
twenty-four of this chapter, where the tax commissioner issues
his requisition or establishes a credit as requested by the
taxpayer within ninety days after the date of the filing by the
taxpayer of a claim for refund or credit, no interest shall be
allowed under this section.
(2)
No interest payable where personal income tax and
corporation net income tax refunded or credited within six
months after claim for refund or credit is filed. -- In the event
of the overpayment of the tax imposed by articles twenty-one and twenty-four of this chapter, where the tax commissioner issues
his requisition or establishes a credit as requested by the
taxpayer within six months after the date of the filing by the
taxpayer of a claim for refund or credit, no interest shall be
allowed under this section.
(3)
Interest treated as tax. -- Interest prescribed under
this section on any tax shall be collected and paid in the same
manner as taxes.
(4)
No interest on interest. -- No interest under this
section shall be imposed on the interest provided by this section
prior to the first day of July, one thousand nine hundred
eighty-six.
(5)
Interest on penalties or additions to tax. -- Interest
shall be imposed under subsection (a)
of this section on any
assessable penalty or additions to tax only if such penalty or
additions to tax is not paid within fifteen days from the date of
notice and demand therefor, and in such case interest shall be
imposed only for the period from the date of the notice and
demand to the date of payment.
(6)
Payments made within fifteen days after notice and demand. -- If notice and demand is made for payment of any
amount, and if
such the amount is paid within fifteen days after
the date of
such the notice and demand, interest under this
section on the amount so paid shall not be imposed for the period
after the date of such notice and demand.
(7)
Limitation on collection. -- Interest prescribed under
this section on any tax may be collected at any time during the
period within which the tax to which
such the interest relates
may be collected.
(8)
Exception as to estimated tax. -- This section shall not
apply to any failure to pay any estimated tax required to be paid
under articles thirteen, thirteen-c, thirteen-b, twenty-one,
twenty-three or twenty-four of this chapter.
ARTICLE 10A. WEST VIRGINIA BOARD OF TAX AND REVENUE APPEALS.
§11-10A-1. Legislative purpose.
The Legislature hereby finds and declares that there is a
need for an independent agency, within the department of tax and
revenue but separate and apart from the tax division of the
department, to impartially hear and determine tax disputes
between the tax division and taxpayers. The Legislature further declares that the creation of a board of tax and revenue appeals
is necessary to satisfy this need.
§11-10A-2. Definitions.
The following words when used in this article shall have the
meaning ascribed to them in this section unless the context in
which the term is used clearly indicates a different meaning is
intended:
(a) "Board" means the West Virginia board of tax and revenue
appeals; and whenever article five, chapter twenty-nine-a of this
code is read in conjunction with this article, the term "agency"
as used therein, means the board of tax and revenue appeals
unless the context in which the term "agency" is used clearly
indicates that it means the department (see subsection (i) of
this section).
(b) "Commissioner" or "tax commissioner" means the tax
commissioner of the state of West Virginia, or his or her
authorized designee.
(c) "Contested matter" means an administrative proceeding
before the board, initiated and heard as provided in this article
and article five, chapter twenty-nine-a of this code, in which the legal rights, duties, interests or privileges of specific
parties are required by statutory, regulatory or constitutional
right to be determined after a board hearing.
(d) "Department" means the West Virginia department of tax
and revenue.
(e) "Division" means the tax division of the West Virginia
department of tax and revenue.
(f) "Member" means a member of the West Virginia board of
tax and revenue appeals.
(g) "Order" means the whole or any part of the final
disposition (whether affirmative, negative, injunctive or
declaratory in form) by the board of any contested matter other
than rule making.
(h) "Rule making" means the process for the formulation,
amendment or repeal of a rule as provided in chapter
twenty-nine-a of this code.
(i) "Tax commissioner" means the tax commissioner of the
department of tax and revenue of the state of West Virginia, or
his or her authorized designee.
(j) "Taxpayer" means any taxpayer as defined in section four, article ten, chapter eleven of this code, or any other
taxpayer or person who is an adversarial party in a contested
matter involving the department under this article.
(k) "This code" means the code of West Virginia, one
thousand nine hundred thirty-one, as amended.
§11-10A-3. Board of tax and revenue appeals created.
There is hereby created the West Virginia board of tax and
revenue appeals which is an independent agency in the department
of tax and revenue but separate and apart from the tax division
of the department.
§11-10A-4. Jurisdiction of board.
The board has jurisdiction to review and render decisions
relating to any one or more of the following contested matters:
(a) Petitions for reassessment filed pursuant to section
eight-a, article ten of this chapter;
(b) Petitions for refund or credit filed pursuant to section
fourteen, article ten of this chapter;
(c) Petitions for reconsideration of adverse decisions or
actions by a division or agency within the department of tax and
revenue concerning the following taxes not subject to the provisions of article ten of this chapter:
(1) The premium taxes imposed under article three, chapter
thirty-three of this code, subsequent to a hearing or rehearing
by the insurance commissioner conducted pursuant to section
thirteen, article two, chapter thirty-three of this code;
(2) The taxes imposed on dog and horse racing under article
twenty-three, chapter nineteen of this code; and
(3) The taxes imposed on liquor under section twenty-one,
article three-a, chapter sixty of this code.
(d) Any other matter specified in legislatively authorized
rules promulgated pursuant to article three, chapter
twenty-nine-a of this code; and
(e) Other matters as may by statute or executive order be
conferred on the board.
§11-10A-5. Composition of board; appointment, qualifications,
term of office, and removal of members; conflicts
of interest prohibited; oath of office;
credentials.
(a)
Composition. -- The board of tax and revenue appeals
shall consist of three members appointed by the governor with the
advice and consent of the Senate. Additionally, the governor shall designate one of the members so appointed to serve, at the
governor's will and pleasure, as chairperson of the board. The
chairperson shall be the chief administrative officer of the
board and its staff. No more than two members shall be members
of the same political party.
(b)
Qualifications. -- Each member shall be a citizen of the
United States and a resident of this state. No more than two
members shall be duly licensed to practice law in this state.
(c)
Term of office. --
(1) The term of office of each board member shall be six
calendar years except that the terms of the first three board
members shall respectively be for two, four and six calendar
years. A person appointed to fill an unexpired term shall be
appointed only for the remainder of that unexpired term. Any
member whose term expires may be reappointed for another term.
(2) All terms shall begin on the first day of January of the
first calendar year of the term and expire at the close of
business on the last day of the calendar year during which the
term expires, except that the first three board members may be
appointed by the governor any time after the first day of January, one thousand nine hundred ninety-six, and, upon taking
the oath of office, each member shall begin performing his or her
duties under this article.
(3) Each member shall continue to serve until his or her
successor is appointed and takes the oath of office, unless the
member dies or resigns during his or her term. A resignation
shall be effective as of the date it is accepted by the governor
or such later date agreed upon by the governor and the resigning
member.
(d)
Removal. -- The governor may remove any member only for
incompetence, neglect of duty, gross immorality, malfeasance in
office or violation of subsection (e) of this section; and
removal shall be in the same manner as that specified for removal
of elected state officers.
(e)
Conflicts of interest prohibited. -- Each member, during
his or her term shall:
(1) Devote his or her full time to board duties during the
regular business hours of the board;
(2) Not otherwise engage in the active practice of law or be
associated with any group or entity which is itself engaged in the active practice of law:
Provided, That nothing in this
paragraph shall be construed to prohibit a board member from
being a member of a national, state or local bar association (or
committee thereof) or of any other similar type group or
organization, or to prohibit the member from engaging in the
practice of law by representing himself or herself or his or her
immediate family in their personal affairs in matters not subject
to this article.
(3) Not engage (directly or indirectly) in any activity,
occupation or business interfering or inconsistent with his or
her duties as a board member;
(4) Not hold any other appointed public office or any
elected public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or
serve on or under any committee of any political party.
(f)
Oath of office. -- Every person appointed a member of
the board of tax and revenue appeals, before proceeding to
exercise the authority or discharge the duties of that office,
shall take the oath prescribed in section 5, article IV of the
Constitution of this state. The oath shall be taken and recorded as provided in article one, chapter six of this code; and a copy
thereof shall be filed and recorded in the office of the
secretary of state and in the office of the executive secretary
of the board.
(g)
Credentials. -- The credentials of members of the board
shall consist of a certificate or commission issued by the
governor under the great seal of this state, showing the
appointment of such person to the board of tax and revenue
appeals.
§11-10A-6. Compensation of board members.
(a) The annual salary of the chairperson shall be fifty-five
thousand dollars per year and the annual salary of the other
board members shall be fifty thousand dollars per year. This
salary shall be paid out of moneys appropriated to the board for
that purpose under the same procedures and in the same manner as
the state auditor pays other appointed state officials in the
executive branch of state government.
(b) Additionally, members of the board shall be reimbursed
for their actual and necessary expenses incurred while engaged in
the performance of their official duties, in the same manner and under the same conditions as other officials and employees of the
executive branch of state government.
§11-10A-7. Alternate board member.
(a) Whenever necessary for hearing or decision by the entire
membership of the board, and whenever a request in writing is
addressed to the governor by any member of the board stating that
the member has disqualified himself or herself from participating
in a particular matter or matters coming before the board, or
that the member is unable because of illness, disability or other
good reason to take part in the matter or matters, or that a
vacancy exists on the board, the governor shall designate a
lawyer licensed to practice law in this state as a special
alternate member of the board for such matter or matters only,
and such designee shall be deemed to be a member of the board for
all purposes concerning such matter or matters.
(b) Any person designated an alternate member of the board
who renders services as such member shall be paid at the rate of
two hundred dollars per day for his or her services.
§11-10A-8. Executive director; employees; expenses; conflicts
of interest prohibited.
(a)
General. -- The board may appoint an executive director, employ other persons as may be necessary, and make expenditures
which it deems necessary for library publications, furniture,
equipment, supplies, services, office space and other reasonable
needs of the board within amounts appropriated for those
purposes.
(b)
Executive director. -- The board shall appoint and fix
the compensation of an executive director, who shall serve at the
will and pleasure of the board. This shall be a full-time
position. It shall be the duty of the executive director to keep
a full and true record of all proceedings, acts, orders and
questions of the board; to issue all necessary process, returns
and notices; to keep all books, documents and papers ordered
filed by the board; and to carry out other duties as may be
specified by the board. The executive director shall be
responsible to the board for the safe custody and preservation of
all documents and papers on file in that office.
(c)
Other employees. -- The board may employ such other
persons as may be necessary to carry out the provisions of this
article and fix their compensation. All other employees shall be
in the classified service of the West Virginia civil service system provided for in article six, chapter twenty-nine of this
code.
(d)
Conflicts of interest prohibited. --
(1) All persons employed by the board (other than on a
part-time basis) shall devote his or her full time to the
performance of his or her duties as an employee during the
regular working hours set by the board. Part-time persons
employed by the board shall similarly devote full time to their
duties as such employees, during the hours they work as part-time
employees of the board.
(2) The executive director and other employees of the board
shall not act as attorney, counselor, accountant or tax
practitioner on behalf of a taxpayer in a matter involving any
tax imposed by this state, another state or the United States.
Nor shall the executive director or any other employee engage in
any activity, occupation or business inconsistent with their
duties as an employee of the board.
§11-10A-9. Powers; duties; operation of board.
The board shall have the following powers and duties:
(a)
Annual report to governor and to the Legislature. -- The board shall submit an annual report to the governor and to the
Legislature, as soon as practicable after the end of the fiscal
year, containing suggestions and recommendations for the
amendment, alteration and modification of existing laws relative
to taxation and revenue and related matters as it may deem
desirable. This report shall summarize and describe the board's
activities since the end of the last report period and shall
include a statement of the number and type of matters handled by
it during the preceding state fiscal year and the number of
matters pending at the end of the year.
(b)
Capacity. -- The board of tax and revenue appeals shall
not be made a party in any judicial review of the decision of the
board in a contested matter.
(c)
Contempt. -- If any person fails or refuses to obey any
lawful process of the board, the board may apply ex parte to the
circuit court of Kanawha County or the circuit court of the
county in which it is sitting for an order of contempt to be
enforced as a contempt of court.
(d)
Continuous session. -- The board shall be in continuous
session and open for the transaction of business every day except Saturdays, Sundays and legal holidays in this state; and the
session of the board shall stand and be deemed to be adjourned
from day-to-day without formal entry thereof upon its records.
(e)
Depositions. -- Any party to a proceeding before the
board or his or her attorney may cause depositions to be taken of
witnesses who reside within or without the state in the manner
prescribed under the rules of civil procedure.
(f)
Filing fees. -- The board is authorized to impose a fee
in an amount not to exceed fifty dollars to be fixed by the board
for the filing of all petitions under the jurisdiction of the
board. Such fee may be uniform, or may vary based on whether the
proceeding is a small claims proceeding, and shall be used to
meet the costs of the board incurred in performing its statutory
duties.
(g)
Oaths. -- Any member or any employee of the board may be
designated in writing by the chairman to administer oaths in all
matters before the board.
(h)
Quorum. -- A majority of the board shall constitute a
quorum to transact the board's business. A vacancy shall not
prevent the remaining board members from transacting the board's business so long as a majority remains.
(i)
Records of the board. -- The board shall maintain the
following records:
(1) A register wherein the board shall enter by its title
any proceedings appealed to it according to the day of its
commencement. Thereafter, until after entry of the board's
opinion and final order, there shall be noted therein, according
to date, the filing or return of any paper or process for the
making of any order, ruling or other directive in or concerning
the proceeding, and any other steps therein.
(2) The files of the board consisting of all papers or other
process filed by the board.
(j)
Regulations. -- The board shall promulgate, in
accordance with article three, chapter twenty-nine-a of this
code, such rules as it believes necessary to carry out its duties
under this article.
(k)
Seal. -- The board of tax and revenue appeals shall have
a seal. The seal shall have the following words engraved
thereon: "West Virginia Board of Tax and Revenue Appeals." The
board shall authenticate all of its orders, records and proceedings with such seal; and the courts of this state shall
take judicial notice of the seal.
(l)
Subpoenas. -- Any member of the board of tax and revenue
appeals, on the request of any party to the proceedings before it
or his or her attorney, shall issue subpoenas requiring the
attendance of witnesses and the giving of testimony and subpoena
duces tecum requiring the production of any returns, books,
papers, documents, correspondence and other evidence pertaining
to the matter under inquiry, in accordance with the rules of
civil procedure.
(m)
Other powers and duties. -- In addition to the powers
and duties expressed in this article, the board shall have other
powers and duties necessary or proper to carry out its duties
under this article that are not specifically denied to it by this
or any other statute or by the Constitution of this state or of
the United States of America.
§11-10A-10. Principal office.
The principal office of the board shall be in Charleston,
West Virginia, but the board may hold hearings at any place
within this state. The time and place of hearings shall be fixed by the board, with a view to providing reasonable opportunity to
the parties to appear before the board with as little
inconvenience and expense to the parties as practicable. The
state shall provide adequate office and hearing facilities in
Charleston, West Virginia. Any county commission, upon request
by the board, shall provide the board with suitable rooms and
facilities for hearings it holds in that county.
§11-10A-11. General practice and procedure.
(a) A proceeding before the board shall be initiated by
filing a petition in accordance with the provisions of this
article.
(b) Once a petition for reassessment, refund or credit,
reconsideration or hearing is filed, the board shall have
exclusive jurisdiction over such petition until it renders a
decision thereon or the petition is dismissed from the docket.
(c) All hearings shall be held in conformity with this
article and chapter twenty-nine-a of this code. In case of any
conflict, the provisions of this article shall control.
(d) The executive director of the board shall, within ten
days after the date the petition is filed, serve the commissioner of the respondent division or agency with a copy of the petition.
After such copy is served upon the commissioner, the commissioner
is deemed a party to the proceeding and, at the hearing on the
petition, may appear in opposition thereto.
(e) The respondent shall have sixty days from the date of
service of the petition in which to file an answer. The answer
shall contain a specific admission or denial of each material
allegation in the petition; however, if the respondent shall be
without knowledge or information sufficient to form a belief as
to the truth of an allegation, he or she shall so state, and
statement shall have the effect of a denial.
(f) The board shall assign a time and place of a hearing on
the petition and shall notify the parties of such hearing by
written notice at least thirty days in advance thereof. The
hearing shall be held within one hundred twenty days from the
filing of the petition, unless continued by the board upon its
own motion or the board grants the written motion of any party
stating good cause for the continuance.
(g) The chairperson of the board shall assign petitions and
apportion the business of the board. The chairperson is authorized to assign any member to hear a petition for
reassessment, refund or credit, reconsideration or hearing or, in
the chairperson's discretion, designate the petition as one to be
heard by the entire board.
(h) Before a hearing on a petition, the board may, in its
discretion, and shall, at the request of any party, direct the
parties to appear before the board or a member thereof for a
prehearing conference to consider the simplification of the
issues, the stipulation of facts and other matters as may aid in
disposition of the contested matter. The member assigned to
preside over the hearing shall preside over the conference. If
any action is taken at the conference, or if any agreement is
made by the parties as to any of the matters considered which
limit the issues for hearing to those not disposed of by
agreement of the parties, the member presiding over the
conference shall enter an order after the order has been examined
by the parties or their counsel. This order shall control the
subsequent course of the proceeding, unless modified to prevent
manifest injustice.
(i) All hearings on petitions before the board shall be de novo. The respondent's notice of assessment shall constitute
prima facie evidence of the tax or revenue due. If the hearing
is on a petition for reassessment, the burden of proof shall be
upon the petitioner to show the assessment is incorrect and
contrary to law, either in whole or in part. If the hearing is
on any other petition filed under section four of this article,
the petitioner shall also have the burden of proof.
(j) Hearings and conferences held pursuant to this article
shall be exempt from the requirements of article nine-a, chapter
six, and article one, chapter twenty-nine-b of this code.
(k) All notices, pleadings, hearings and proceedings shall
be in accordance with rules of practice and procedures
promulgated by the board which, as far as practical, shall
conform to the practice and procedure in this state in civil
trials without juries.
§11-10A-12. Small claims procedure; disputes involving ten
thousand dollars or less.
(a)
In general. -- If the amount in dispute in any petition
for reassessment or any petition for refund or credit filed with
the board does not exceed ten thousand dollars for any one taxable year, then, at the option of the taxpayer and concurred
in by the board before the hearing on the petition, the hearing
shall be conducted under this section. Notwithstanding the
provisions of section eleven of this article, a hearing under
this section shall be conducted in an informal manner and in
accordance with such rules of evidence, practice and procedure as
the board may prescribe. A decision, together with a brief
summary of the reasons therefor shall be issued in a small claims
proceeding by the member assigned to hear the matter.
(b)
Finality of decision. -- A decision entered in any
hearing conducted under this section shall not be subject to
review, administrative or judicial, under this article, article
ten of this chapter or article five, chapter twenty-nine-a of
this code; and shall not be treated as precedent for any other
contested matter. The amount, if any, owed by the taxpayer to
the state shall be paid within thirty days after notice of the
decision is served on the taxpayer. The amount of overpayment by
the taxpayer, if any, shall be refunded or credited, at the
election of the taxpayer, in the manner prescribed in section
fourteen, article ten of this chapter.
(c)
Discontinuance of proceedings. -- At any time before
commencement of the hearing held under this section, the
petitioner may unilaterally withdraw its election made under
subsection (a) of this section, and at any time before a decision
is issued under this section, the petitioner may request or the
board, on its own motion, may order that further proceedings
under this section be discontinued if there are reasonable
grounds for believing that the amount in dispute exceeds the
amount described in subsection (a) of this section. Upon a
discontinuance, or change of election, a hearing shall be held in
the same manner as other contested matters to which this article
applies.
(d)
Amount in dispute. -- For purposes of this section, the
amount in dispute includes tax, additions to tax and penalties,
but excludes interest.
§11-10A-13. Recordation of hearings; notice that hearing to be
recorded.
All witnesses who testify at an administrative hearing shall
do so under oath. All hearings before the board shall be
reported by the official reporter of the board or by other means of recording acceptable for use in courts of this state. The
board shall notify the taxpayer that the hearing will be recorded
and that the taxpayer is entitled to receive a copy of the
recording at cost. Recording charges and expenses shall be paid
by the board from its appropriation. Copies of the record made
shall be available to any party upon request and payment of a
reasonable fee set by the board to cover the cost thereof.
§11-10A-14. Representation of parties; notice of right to
representation at hearing.
(a) In all contested matters before the board, the tax
commissioner may represent himself or herself or, in his or her
discretion, be represented by any attorney employed by him or her
or by the attorney general.
(b) A taxpayer may appear on his or her own behalf or by his
or her agent. The taxpayer must be informed before any hearing
that he or she has a right to have present at the hearing his or
her attorney, accountant or other designated agent.
(c) Nothing in this section may be construed to permit the
unauthorized practice of law as defined by the West Virginia
supreme court of appeals.
§11-10A-15. Written decisions required; proposed findings of
fact and conclusions of law; notice; publication of
decisions.
(a)
Written decisions. -- An administrative decision shall
be issued by the member assigned to hear the petition or by the
board, as the case may be. This decision shall be in writing and
include therein a concise statement of the material facts and
conclusions of law. This decision may affirm, modify, reverse or
remand any determination of the tax commissioner with respect to
the petition and may grant other relief and invoke other remedies
as may be appropriate. The board may issue the orders in
accordance with the administrative decision as may be
appropriate. Any member may file a concurring or dissenting
opinion with regard to any decision in a matter heard by the
board.
(b)
Proposed findings of fact and conclusions of law. --
Prior to the rendering of an administrative decision, the parties
may be provided the opportunity to submit proposed findings of
fact and conclusions of law.
(c)
Notice of decisions. -- Notice of administrative
decisions shall be served upon the parties within a reasonable time after the hearing on the petition is concluded.
(d)
Publication of decisions. -- The board shall provide for
the publication of its administrative decisions, or a summary
thereof. Publication shall be in such form and manner as may be
best adapted for publication and use. A decision is deemed
published when a certified copy thereof is filed in the state
register maintained by the secretary of state. Copies of
published decisions and published summaries of decisions are
subject to sale in the same manner and upon the same terms as
other public documents of this state.
(e)
Exception. -- The provisions of this section do not
apply to small claims decisions issued under section twelve of
this article.
§11-10A-16. Finality of board decisions; petition for
rehearing.
(a) Unless the administrative decision issued as provided in
section fifteen of this article is appealed within sixty days
after notice of the decision is served on the petitioner, the
decision shall become final and shall not thereafter be subject
to either administrative or judicial review under this article or article ten of this chapter. The amount, if any, owed by the
petitioner to the state is due and payable on the day after the
day the administrative decision becomes final. The amount of
overpayment by the petitioner, if any, shall be refunded or
credited, at the election of the petitioner, in the manner
prescribed by law. For taxes and fees administered under article
ten of this chapter, section fourteen applies.
(b)
Rehearing. -- Any party in a contested matter may,
within thirty days after written notice of an administrative
decision is served on them, file a written petition for rehearing
with the board. A majority of the board shall decide whether or
not to grant the rehearing. Timely filing of a petition for
rehearing stops the running of the sixty-day appeal period until
the petition for rehearing is acted upon by the board. If a
rehearing is granted, the rehearing shall be heard by the entire
board and a new sixty-day appeal period begins to run when the
board's administrative decision is served on the parties.
(c) The tax commissioner may publish notice in the state
register of whether or not he or she acquiesces (either in whole
or in part) in any adverse decision. A copy of such notice shall be filed with the board.
(d)
Exception. -- The provisions of this section do not
apply to small claims decisions issued under section twelve of
this article.
§11-10A-17. Judicial review.
(a)
Right of appeal. -- Either the petitioner or the
respondent, or both of them, may appeal the administrative
decision of the board issued under section fifteen of this
article, by taking an appeal to the circuit courts of this state
within sixty days after being served with notice of the
administrative decision.
(b)
Venue. --
(1) The appeal may be taken in the circuit court of Kanawha
County or of any county:
(A) Wherein the activity sought to be taxed was engaged in;
(B) Wherein the taxpayer resides; or
(C) Wherein the will of the decedent was probated or letters
of administration granted.
(2) In the event the parties appeal to different circuit
courts, the appeals shall be consolidated. In the absence of agreement by the parties, the appeal shall be consolidated in the
circuit court of Kanawha County.
(c)
Petition for appeal. -- The appeal proceeding shall be
instituted by filing a petition with the circuit court, or the
judge thereof in vacation, within the sixty-day period prescribed
in subsection (a) of this section. There shall be attached to
the petition a memorandum of all the parties who appeared at the
hearing before the board. The clerk of the circuit court shall,
within ten days after the day the petition is filed, serve all
parties appearing of record, other than the petitioner, with a
copy of the petition by registered or certified mail. The
petition shall be in writing, verified under oath by the
petitioner, or his or her duly authorized agent having knowledge
of the facts, and shall set forth with particularity the items of
the administrative decision objected to, together with the
reasons for such objections.
(d)
Appeal bond. -- If the appeal is of an assessment
(except a jeopardy assessment for which security in the amount
thereof was previously filed with the tax commissioner), then
within ninety days after the petition for appeal is filed, or sooner if ordered by the circuit court, the petitioner shall file
with the clerk of the circuit court a cash bond or a corporate
surety bond approved by the clerk. The surety must be qualified
to do business in this state. These bonds shall be conditioned
upon the petitioner performing the orders of the court. The
penalty of this bond shall be not less than the total amount of
tax or revenue plus additions to tax, penalties and interest for
which the taxpayer was found liable in the administrative
decision of the board. Notwithstanding the foregoing and in lieu
of the bond, the tax commissioner, upon terms as he or she
prescribes, may upon a sufficient showing by the taxpayer,
certify to the clerk of the circuit court that the assets of the
taxpayer subject to the lien imposed by section twelve, article
ten of this chapter, or other indemnification, are adequate to
secure performance of the orders of the court. No bond may be
required of the tax commissioner.
(e)
Appeal of order dismissing petition. -- If a petition
for reassessment, refund or credit, reconsideration or hearing is
dismissed by the board, the order of the board dismissing the
proceeding shall be considered an administrative decision of the board affirming the determination of the respondent which
precipitated the filing of the petition with the board, and that
order (administrative decision) may be appealed as provided in
this section.
(f)
Appeal to circuit court. -- The circuit court shall hear
the appeal as provided in section four, article five, chapter
twenty-nine-a of this code:
Provided, That when 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)
Appeal to supreme court of appeals. -- Either party may
appeal to the supreme court of appeals as provided in article
six, chapter twenty-nine-a of this code:
Provided, That
notwithstanding the provisions of subsection (f) of this section,
either party may appeal an order of the board directly to the
supreme court of appeals when the sole legal issue or issues to
be decided involve issues of constitutionality properly raised in
proceedings before the board, and when the board's conclusions of
fact are not in dispute.
(h)
Correction of assessment; issuance of refund, etc. -- Unless the commissioner appeals an adverse decision of the
circuit court or the supreme court of appeals, the commissioner
shall, upon receipt of the certified order of the court, promptly
correct his or her assessment or issue his or her requisition on
the treasury or establish a credit (as requested by the taxpayer)
for the amount of an overpayment.
(i)
Exception. -- This section does not apply to decisions
issued in small claims proceedings under section twelve of this
article.
(j)
Conflicts. -- In case of any conflict between the
provisions of this article and article five, chapter
twenty-nine-a of this code, the provisions of this article is
controlling.
§11-10A-18. Service of notice of administrative decisions.
Notice of administrative decisions shall be served upon the
parties either by personal or substituted service, or by
certified mail. Service of notice by personal or substituted
service shall be valid if made by any method authorized by Rule
4 of the West Virginia Rules of Civil Procedure. Service of
notice by certified mail is valid if accepted by the party, or if addressed to and mailed to the party's usual place of business or
usual place of abode or last known address and accepted by any
officer, partner, employee, spouse or child of the taxpayer over
the age of sixteen. Any notice addressed and mailed in the above
manner and accepted by any person, is presumed to be accepted by
the party unless proven otherwise by the taxpayer. Any notice
addressed and mailed in the above manner, which is refused or not
claimed, may then be served by regular mail if the notice is
subsequently mailed by first-class mail, postage prepaid, to the
same address and the date of posting in the United States mail is
the date of service.
§11-10A-19. Timely filing.
(a)
Delivery in person. -- If any petition, statement or
other document required to be filed within a prescribed period or
on or before a prescribed date under authority of this article is
delivered in person on or before the date to the board of tax and
revenue appeals at its office in Charleston, West Virginia,
during normal business hours, it is timely filed:
Provided, That
the board may authorize delivery to be made to its agent at any
other location or locations in this state, as it may from time to time prescribe.
(b)
Timely mailing. -- If any petition, statement or other
document required to be filed within a prescribed period or on or
before a prescribed date under authority of this article, is
after the period or the date delivered by United States mail to
the board of tax and revenue appeals, the date of the United
States postmark stamped on the cover in which the petition,
statement or other document is mailed is deemed to be the date of
delivery if the following mailing requirements are met:
(1) The postmark date falls within the prescribed period or
on or before the prescribed date for filing (including any
extension granted for the filing) of the petition, statement or
other document; and
(2) The petition, statement, or other document was, within
the time prescribed in paragraph (1) above, deposited in the mail
in the United States in an envelope or other appropriate wrapper
or container, postage prepaid, properly addressed to the board of
tax and revenue appeals.
(c)
Postmarks not made by the U.S. Postal Service. -- This
section applies in the case of postmarks not made by the United States postal service only if and to the extent provided by rules
prescribed by the board.
(d)
Registered and certified mailing. -- For purposes of
this section, if any petition, statement or other document is
sent by United States registered or certified mail, the date of
registration or certification is deemed the postmark date.
(e)
Last date for filing. -- The last date for timely filing
includes any extension of time authorized by law or rule and any
extension of time granted in writing by the board.
§11-10A-20. Time for performance of acts where last day falls
on Saturday, Sunday or legal holiday.
When the last day prescribed under authority of this article
or article ten of this chapter for performing any act falls on
Saturday, Sunday or a legal holiday, the performance of the act
is considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or a legal holiday. For
purposes of this section, the last day for the performance of any
act shall be determined by including any authorized extension of
time. The term "legal holiday" means a legal holiday in this
state.
§11-10A-21. Confidentiality and disclosure of returns and
return information; criminal penalty.
(a)
General rule. -- Except when required in a judicial
review under this article of an administrative decision of the
board, in any proceeding, and except as provided in subsections
(d) through (f) of this section, it is unlawful for any present
or former public officer or employee of the board to divulge or
make known in any manner the tax return, or any part thereof, of
any person or disclose information concerning the personal
affairs of any individual or the business affairs of any firm,
corporation or other organization or entity or disclose the
amount of income, or any other particulars set forth or disclosed
in any report, declaration or return required to be filed with
the tax commissioner by any article of this code imposing any tax
or fee administered under article ten of this chapter or by any
rule of the tax commissioner issued thereunder or in any audit or
investigation conducted under article ten. This section is
specifically exempted from disclosure under the provisions of
subsection (5), section four, article one, chapter twenty-nine-b
of this code.
(b)
Definitions. -- For purposes of this section:
(1)
Background file document. -- The term "background file
document," with respect to a written determination, includes the
request for that written determination, any written material
submitted in support of the request, and any communication
(written or otherwise) between the board and persons outside the
board in connection with the written determination received
before issuance of the written determination.
(2)
Disclosure. -- The term "disclosure" means the making
known to any person in any manner whatsoever a return or return
information:
Provided, That disclosure does not mean the
exchange of information between officials, employees, legal
representatives or agents of the board of tax and revenue
appeals, for official purposes only, to the extent necessary to
perform their statutory duties under this article.
(3)
Inspection. -- The terms "inspection" and "inspected"
means any examination of a return or return information.
(4)
Return. -- The term "return" means any tax or
information return or report, declaration of estimated tax, claim
or petition for refund or credit, or petition for reassessment that is required by, or provided for or permitted under, the
provisions of article ten of this chapter (or any article of this
chapter administered under said article ten) which is filed with
the tax commissioner by, on behalf of, or with respect to any
person, and any amendment or supplement thereto, including
supporting schedules, attachments, or lists which are
supplemental to, or part of, the return so filed.
(5)
Return information. -- The term "return information"
means:
(A) A taxpayer's identity, the nature, source or amount of
his or her income, payments, receipts, deductions, exemptions,
credits, assets, liabilities, net worth, tax liability, tax
withheld, deficiencies, over-assessments or tax payments, whether
the taxpayer's return was, is being or will be examined or
subject to other investigation or processing, or any other data,
received by, recorded by, prepared by, furnished to or collected
by the tax commissioner with respect to a return or with respect
to the determination of the existence, or possible existence, of
liability (or the amount thereof) or by any person under the
provisions of article ten of this chapter (or any article of this chapter administered under article ten) for any tax, additions to
tax, penalty, interest, fine, forfeiture or other imposition or
offense; and
(B) Any part of any written determination or of any
background file document relating to such written determination.
"Return information" does not include, however, data in a
form which cannot be associated with, or otherwise identify,
directly or indirectly, a particular taxpayer or the mere fact
that a person has or has not filed a return. Nothing in the
preceding sentence, or in any other provision of this code, may
be construed to require the disclosure of standards used or to be
used for the selection of returns for examination or data used or
to be used for determining such standards.
(6)
Tax administration. -- The term "tax administration"
means:
(A) The administration, management, conduct, direction and
supervision of the execution and application of the tax laws or
related statutes of this state, and the development and
formulation of state tax policy relating to existing or proposed
state tax laws and related statutes of this state; and
(B) Includes assessment, collection, enforcement,
litigation, publication and statistical gathering functions under
the laws of this state.
(7)
Taxpayer identity. -- The term "taxpayer identity" means
the name of a person with respect to whom a return is filed, his
or her mailing address, his or her social security number, any
state or federal taxpayer identifying number or any combination
thereof.
(8)
Taxpayer return information. -- The term "taxpayer
return information" means return information as defined in
paragraph (5), above, which is filed with, or furnished to, the
tax commissioner by or on behalf of the taxpayer to whom the
return information relates.
(9)
Written determination. -- The term "written
determination" means a written ruling, determination letter,
technical assistance advisory or administrative decision issued
by the tax commissioner or the board.
(c)
Criminal penalty. -- Any officer or employee (or former
officer or employee) of this state who willfully violates this
section is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten nor
more than twenty years.
(d)
Waiver of confidentiality. -- Any person protected by
the provisions of this article may, in a signed writing, waive
the confidentiality provisions of this section for the purpose
and period as he or she therein states. The board may, subject
to requirements and conditions as it prescribes, thereupon
release to designated recipients the information to which the
waiver applies.
(e)
Statistical use. -- This section may not be construed to
prohibit the publication or release of statistics so presented as
to prevent the identification of particular returns and the items
thereof.
(f)
Certain other persons. -- Pursuant to rules prescribed
by the board, protected information may be disclosed to any
person, but only to the extent necessary in connection with the
processing, storage, transmission and reproduction of the
information and the programming, maintenance, repair, testing and
procurement of equipment for purposes of carrying out its duties
under this article.
§11-10A-22. Effective date; transition rules.
(a)
Effective date. -- The provisions of this article shall
take effect on the first day of January, one thousand nine
hundred ninety-six.
(b)
Transition rules. -- To provide for the orderly
transition, the following rules are provided:
(1) All petitions for reassessment, refund, credit or
reconsideration filed with the tax commissioner after the
thirty-first day of May, one thousand nine hundred ninety-six,
shall be docketed in his or her office, but no administrative
hearing may be held thereon.
(2) On the first day of July, one thousand nine hundred
ninety-six, or as soon thereafter as practicable, the tax
commissioner shall transmit all petitions for reassessment,
refund, credit or reconsideration which remain on his or her
hearing docket as of the close of business on the thirtieth day
of June, one thousand nine hundred ninety-six, and for which no
hearing was held, to the board of tax and revenue appeals which
shall place them on its hearing docket. Once docketed, these
petitions shall be treated, for all purposes except timeliness, as if the petitions had been filed originally with the board.
(3) As to contested matters remaining on the tax
commissioner's hearing docket as of the close of business on the
thirtieth day of June, one thousand nine hundred ninety-five, for
which an administrative hearing has been held but no
administrative decision issued, those matters shall remain in the
tax commissioner's office and administrative decisions shall be
issued by him or her as soon as practicable. A taxpayer desiring
to appeal his or her administrative decision shall proceed as
provided in section ten or fourteen, article ten of this chapter,
or as otherwise provided in this code, as in effect prior to the
first day of July, one thousand nine hundred ninety-five:
Provided, That in the event the circuit court remands an appeal
for the taking of additional evidence, the remand shall be to the
board of tax and revenue appeals. Upon remand, the tax
commissioner shall forthwith file with the board a copy of the
record before the circuit court and a copy of all briefs or
memoranda filed therein.
§11-10A-23. Severability.
If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or
invalid, such unconstitutionality or invalidity shall not affect,
impair or invalidate other provisions or applications of the
article, and to this end the provisions of this article are
declared to be severable.
NOTE: This bill would create an independent Board of Tax
and Revenue appeals to hear petitions for reassessment, refund or
credit, reconsideration or hearing concerning taxes collected by
the tax commissioner of the department of tax and revenue.
Transition rules are provided for such petitions filed with the
tax commissioner before the new board becomes operational. Also,
a new informal preassessment procedure is provided to give
taxpayers an opportunity to request an informal conference or
submit written arguments prior to an assessment being issued.
The effective date for the above provisions would be July 1,
1996.
Strike-throughs indicate language that would be stricken
from the present law and underscoring indicates language that
would be added.
Section 11-10A-1 et seq. is new; therefore, strike-throughs
and underscoring have been omitted.