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ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 239
(By Senators Tomblin, Mr. President and Caruth,
By Request of the Executive)
____________
[Passed March 8, 2008; to take effect July 1, 2008.]
____________
AN ACT to
amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §11-6H-1, §11-6H-2,
§11-6H-3, §11-6H-4, §11-6H-5, §11-6H-6, §11-6H-7, §11-6H-8,
§11-6H-9, §11-6H-10 and §11-6H-11; and to amend said code by
adding thereto a new section, designated §11-21-24, all
relating to the taxation of real property owned by senior
citizens; providing definitions; providing deferment for
payment of property tax increment; specifying that the senior
citizen property tax relief tax credit may be applied in lieu
of such deferment; authorizing rules; requiring application
for the deferment; providing for deferment renewal and waiver
of deferment; providing procedures for the review and approval
of application by the assessor; providing an appeals
procedure; authorizing creation of a lien on property for which deferment is approved; specifying conditions for liens
and lien payment and termination; requiring the Tax
Commissioner to prescribe necessary forms and instructions;
authorizing the Tax Commissioner to propose legislative rules;
establishing criminal penalties; authorizing severability of
provisions of the article; creating the Senior Citizen
Property Tax Relief Credit Act; providing definitions;
providing tax credit against personal income tax for payment
of a specified property tax increment under certain
circumstances; specifying that the Senior Citizen Property Tax
Payment Deferment may be applied in lieu of such credit;
requiring application for the tax credit; providing for tax
credit renewal; providing procedures for the review and
approval of application by the assessor; providing an appeals
procedure; requiring the Tax Commissioner to prescribe
necessary forms and instructions; and establishing criminal
penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §11-6H-1, §11-6H-2,
§11-6H-3, §11-6H-4, §11-6H-5, §11-6H-6, §11-6H-7, §11-6H-8, §11-6H-
9, §11-6H-10 and §11-6H-11; and that said code be amended by adding
thereto a new section, designated §11-21-24, all to read as
follows:
ARTICLE 6H. SENIOR CITIZEN PROPERTY TAX PAYMENT DEFERMENT ACT.
§11-6H-1. Short title.
This article shall be known as the Senior Citizen Property Tax
Payment Deferment Act.
§11-6H-2. Definitions.
As used in this article, the following terms shall have the
meaning ascribed to them in this section, unless the context in
which the term is used clearly requires a different meaning or a
specific different definition is provided:
(1) "Assessed value" means the value of property as determined
under article three of this chapter.
(2) "Deferment" means a delay or postponement.
(3) "Homestead" means a homestead qualified for the homestead
property tax exemption authorized in article six-b of this chapter,
but limited to a single-family residential house, including a
mobile or manufactured or modular home, and the land, not exceeding
one acre, surrounding such structure that is owned by the owner of
the single-family residential house, including a mobile or
manufactured or modular home; or a mobile or manufactured or
modular home regardless of whether the land upon which such mobile
or manufactured or modular home is situated is owned by another.
(4) "Owner" means the person who is possessed of the
homestead, whether in fee or for life. A person seized or entitled
in fee subject to a mortgage or deed of trust shall be considered
the owner. A person who has an equitable estate of freehold, or is
a purchaser of a freehold estate who is in possession before
transfer of legal title shall also be considered the owner.
Personal property mortgaged or pledged shall, for the purpose of taxation, be considered the property of the party in possession.
(5) "Sixty-five years of age or older" includes a person who
attains the age of sixty-five on or before the thirtieth day of
June following the July first assessment day.
(6) "Tax increment" means the increase of ad valorem taxes
assessed on the homestead, determined as the difference between the
ad valorem taxes assessed on the homestead for the current tax year
and the ad valorem taxes assessed on the homestead for the tax year
immediately preceding the tax year for which the taxpayer's
application for property tax deferment specified in this article is
approved by the assessor, or otherwise finally approved in
accordance with the provisions of this article.
(7) "Used and occupied exclusively for residential purposes"
means that the property is used as an abode, dwelling or habitat
for more than six consecutive months of the calendar year prior to
the date of application by the owner thereof; and that subsequent
to making application for deferment, the property is used only as
an abode, dwelling or habitat to the exclusion of any commercial
use.
(8) "Tax year" means the calendar year following the July
first assessment day.
§11-6H-3. Property tax payment deferment.
(a) The following homesteads shall qualify for the deferment
provided in subsection (b) of this section:
(1) Any homestead owned by an owner sixty-five years of age or
older and used and occupied exclusively for residential purposes by such owner; and
(2) Any homestead that:
(A) Is owned by an owner sixty-five years of age or older who,
as a result of illness, accident or infirmity, is residing with a
family member or is a resident of a nursing home, personal care
home, rehabilitation center or similar facility;
(B) Was most recently used and occupied exclusively for
residential purposes by the owner or the owner's spouse; and
(C) Has been retained by the owner for noncommercial purposes.
(b) (1) For tax years commencing on or after the first day of
January, two thousand nine, the owner of a homestead meeting the
qualifications set forth in subsection (a) of this section may
apply for a deferment in the payment of the tax increment of ad
valorem taxes assessed under the authority of article three of this
chapter on the homestead: Provided, That the deferment may be
authorized only when the tax increment is the greater of three
hundred dollars or ten percent or more:
Provided, however, That
all deferred taxes are not subject to any rate of interest.
(2) In lieu of the deferment of the tax increment authorized
pursuant to this article, a taxpayer entitled to such deferment may
elect to instead apply the senior citizen property tax relief
credit authorized under section twenty-four, article twenty-one of
this chapter. Any taxpayer making such election shall be fully
subject to the terms and limitations set forth in section twenty-
four, article twenty-one of this chapter.
§11-6H-4. Application for deferment; renewals; waiver of deferment.
(a) General. -- No deferment may be allowed under this article
unless an application for deferment is filed with the assessor of
the county in which the homestead is located, on or before the
first day of November following mailing of the tax ticket in which
the tax increment that is the subject of the application is
contained, such tax ticket being mailed pursuant to section eight,
article one, chapter eleven-a of this code. In the case of
sickness, absence or other disability of the owner, the application
may be filed by the owner or his or her duly authorized agent.
(b) Renewals. -- After the owner has filed an application for
deferment with his or her assessor, there shall be no need for that
owner to refile an application for the taxes so deferred.
(c) Waiver of deferment. -- Any person otherwise qualified who
does not apply for deferment from payment of a tax increment on or
before the first day of November as specified in this article is
considered to have waived his or her right to apply for deferment
from such payment for that tax year.
§11-6H-5. Determination; notice of denial of application for
deferment.
(a) The assessor shall, as soon as practicable after an
application for deferment is filed, review that application and
either approve or deny it. The assessor shall approve or disapprove
an application for deferment within thirty days of receipt. Any
application not approved or denied within thirty days is deemed approved. If the application is denied, the assessor shall
promptly, but not later than the first day of January, serve the
owner with written notice explaining why the application was denied
and furnish a form for filing with the county commission, should
the owner desire to take an appeal. The notice required or
authorized by this section shall be served on the owner or his or
her authorized representative either by personal service or by
certified mail.
(b) In the event that the assessor has information sufficient
to form a reasonable belief that an owner, after having been
originally granted a deferment, is no longer eligible for the
deferment, he or she shall, within thirty days after forming this
reasonable belief, revoke the deferment and serve the owner with
written notice explaining the reasons for the revocation and
furnish a form for filing with the county commission should the
owner desire to take an appeal.
§11-6H-6. Appeals procedure.
(a) Notice of appeal; thirty days. -- Any owner aggrieved by
the denial of his or her claim for application for deferment or the
revocation of a previously approved deferment may appeal to the
county commission of the county within which the property is
situated. All such appeals shall be filed within thirty days after
the owner's receipt of written notice of the denial of an
application or the revocation of a previously approved deferment,
as applicable, pursuant to section five of this article.
(b) Review; determination; appeal. -- The county commission shall complete its review and issue its determination as soon as
practicable after receipt of the notice of appeal, but in no event
later than the twenty-eighth day of February following the tax year
for which the deferment was sought. In conducting its review, the
county commission may hold a hearing on the application. The
assessor or the owner may apply to the circuit court of the county
for review of the determination of the county commission in the
same manner as is provided for appeals from the county commission
in section twenty-five, article three of this chapter.
§11-6H-7. Termination of deferment.
Any deferment approved in accordance with the provisions of
section five of this article shall terminate immediately when any
of the following events occur:
(1) The death of the owner of the property for which the
deferment was authorized;
(2) The sale of the property for which the deferment was
approved;
(3) A determination by the assessor that the property for
which the deferment was approved no longer qualifies for the
deferment in accordance with the provisions of this article;
(4) The owner of the property for which the deferment was
approved fails to maintain a fire insurance policy on the property
that, if the property is destroyed, is sufficient to pay all debts
for which the property is used as collateral and all tax increments
that have been deferred and other charges provided by law;
(5) The owner of the property for which the deferment was approved fails to maintain a flood insurance policy that, if the
property is destroyed, is sufficient to pay all debts for which the
property is used as collateral and all tax increments that have
been deferred and other charges provided by law: Provided, That
the provisions of this subdivision shall apply only to the
following property: (A) Property within a flood elevation that has
a one percent chance of being equaled or exceeded each year, as
determined by the Federal Emergency Management Agency; (B) property
within a one hundred year floodplain as designated by the Federal
Emergency Management Agency; or (C) property within a special flood
hazard area as determined by the Federal Emergency Management
Agency or as shown on the most current National Flood Insurance
Program flood hazard boundary map, flood insurance rate map, or
flood boundary and floodway map; or
(6) The tax increments deferred from payment and other charges
provided by law are paid in full.
§11-6H-8. Property tax books; lien on property.
(a) Property book entry. -- The amount deferred from payment
of the tax increment shall be shown and continued on the property
books until paid.
(b) Lien; statement to homestead owner. -- The amount of the
tax increment deferred from payment, and other charges as provided
by law, shall be a lien on the real property for which the tax was
assessed that continues until paid in full and is not subject to
the requirements for the collection of taxes provided in chapter
eleven-a of this code. For purposes of this article.
(c) When lien is to be paid. -- The lien required by this
section shall be paid no later than ninety days following the
occurrence of any one of the events set forth in section seven of
this article.
(d) Limitation on execution on lien and limitation on transfer
of lien. -- No county or levying body nor any official, agent or
representative thereof, shall execute upon or collect upon any lien
created pursuant to this article until one of the conditions for
termination of deferment set forth in section seven of this article
has occurred. No county or levying body nor any official, agent or
representative thereof, shall assign or transfer any right to
execute upon or collect upon any such lien to any other person or
entity until one of the conditions for termination of deferment set
forth in section seven of this article has occurred.
§11-6H-9. Forms, instructions and regulations.
The Tax Commissioner shall prescribe and supply all necessary
instructions and forms for administration of this article.
Additionally, the Tax Commissioner may propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code, as the Tax Commissioner
considers necessary for the implementation of this article.
§11-6H-10. Criminal penalties; restitution.
(a) False or fraudulent claim for deferment. -- Any owner who
willfully files a fraudulent application for deferment and any
person who knowingly assisted in the preparation or filing of such fraudulent application for deferment or who knowingly supplied
information upon which the fraudulent application for deferment was
prepared or allowed is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than two hundred fifty nor more
than five hundred dollars, or imprisoned in jail for not more than
one year, or both fined and imprisoned.
(b) Failure to notify assessor. -- Any owner who knowingly,
prior to the next first day of July, fails to notify the assessor
of the county wherein property subject to the tax increment
deferment is located that title to that property or a portion
thereof was transferred by deed, grant, sale, gift, will or by the
laws of this state regulating descent and distribution or that the
property is no longer used and occupied for residential purposes
exclusively by the owner is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand
dollars or imprisoned in jail for not more than one year or both
fined and imprisoned.
(c) In addition to the criminal penalties provided above, upon
conviction of any of the above offenses, the court shall order that
the defendant make restitution unto the county for all taxes not
paid due to an improper deferment, or continuation of a deferment,
for the owner.
§11-6H-11. 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 does 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.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-24. Senior citizen property tax relief credit.
(a) Definitions. -- As used in this section, the following
terms shall have the meaning ascribed to them in this subsection,
unless the context in which the term is used clearly requires a
different meaning or a specific different definition is provided:
(1) "Assessed value" means the value of property as determined
under article three of this chapter.
(2) "Real property taxes paid" means, for the tax years
beginning on or after the first day January, two thousand nine, the
aggregate of regular levies, excess levies and bond levies extended
against the homestead that are paid during the calendar year and
determined after any application of any discount for early payment
of taxes but before application of any penalty or interest for late
payment of property taxes.
(3) "Senior citizen property tax relief tax credit" means the
tax credit authorized under this section.
(4) "Gross household income" means gross household income as
defined in section twenty-three of this article.
(5) "Homestead" means a homestead qualified for the homestead
property tax exemption authorized in article six-b of this chapter,
but limited to a single-family residential house, including a
mobile or manufactured or modular home, and the land, not exceeding one acre, surrounding such structure that is owned by the owner of
the single-family residential house, including a mobile or
manufactured or modular home; or a mobile or manufactured or
modular home regardless of whether the land upon which such mobile
or manufactured or modular home is situated is owned by another.
(6) "Owner" or "homeowner" means the person who is possessed
of the homestead, whether in fee or for life. A person seized or
entitled in fee subject to a mortgage or deed of trust shall be
considered the owner. A person who has an equitable estate of
freehold, or is a purchaser of a freehold estate who is in
possession before transfer of legal title shall also be considered
the owner. Personal property mortgaged or pledged shall, for the
purpose of taxation, be considered the property of the party in
possession.
(7) "Sixty-five years of age or older" includes a person who
attains the age of sixty-five on or before the thirtieth day of
June following the July first assessment day.
(8) "Tax increment" means the increase of ad valorem taxes
assessed on the homestead, determined as the difference between the
ad valorem taxes assessed on the homestead for the current tax year
and the ad valorem taxes assessed on the homestead for the tax year
immediately preceding the tax year for which the taxpayer's
application for tax credit specified in this section is approved by
the assessor, or otherwise finally approved in accordance with the
provisions of this article.
(9) "Tax year" means the property tax calendar year following the July first assessment day.
(10) "Used and occupied exclusively for residential purposes"
means that the property is used as an abode, dwelling or habitat
for more than six consecutive months of the calendar year prior to
the date of application by the owner thereof; and that subsequent
to making application for tax credit, the property is used only as
an abode, dwelling or habitat to the exclusion of any commercial
use.
(b) Refundable credit. -- Subject to the requirements and
limitations of this section, for the tax years beginning on or
after the first day of January, two thousand nine, any homeowner
having a gross household income equal to or less than twenty-five
thousand dollars for the tax year, living in his or her homestead
shall be allowed a refundable credit against the taxes imposed by
this article equal to the amount of real property taxes paid that
are attributable to the tax increment of ad valorem taxes assessed
under the authority of article three of this chapter on the
homestead: Provided, That the gross household income shall be
adjusted annually in accordance with the consumer price index. The
credit shall be applied against the personal income tax in the
personal income tax year of the taxpayer when the property tax
increment was actually paid.
(1) Due to the administrative cost of processing, the
refundable credit authorized by this section may not be refunded if
less than ten dollars.
(2) The credit for each property tax year shall be claimed by filing a claim for refund within twelve months after the real
property taxes are paid on the homestead.
(3) Notwithstanding the provisions of section twenty-one or
section twenty-three of this article
, for property tax years that
begin on or after the first day of January, two thousand nine, a
homeowner is eligible to benefit from this section, section twenty-
one or twenty-three of this article, whichever section provides the
most benefit as determined by the homeowner. No homeowner may
receive benefits under this section, section twenty-one or twenty-
three of this article during the same taxable year. Nothing in this
section shall be interpreted to deny any lawfully entitled taxpayer
of the homestead exemption provided in section three, article six-b
of this chapter.
(c) Qualification for credit. --
(1) The following homesteads shall qualify for the tax credit
provided in this section:
(A) Any homestead owned by an owner sixty-five years of age or
older and used and occupied exclusively for residential purposes by
such owner; and
(B) Any homestead that:
(i) Is owned by an owner sixty-five years of age or older who,
as a result of illness, accident or infirmity, is residing with a
family member or is a resident of a nursing home, personal care
home, rehabilitation center or similar facility;
(ii) Was most recently used and occupied exclusively for
residential purposes by the owner or the owner's spouse; and
(iii) Has been retained by the owner for noncommercial
purposes.
(2) (A) For tax years commencing on or after the first day of
January, two thousand nine, the owner of a homestead meeting the
qualifications set forth in subdivision (1) of this subsection may
apply for a tax credit in the amount of the tax increment of ad
valorem taxes assessed under the authority of article three of this
chapter on the homestead, subject to the limitations set forth in
this section: Provided, That the tax credit may be authorized only
when the tax increment is the greater of three hundred dollars or
ten percent or more.
(B) In lieu of the tax credit authorized under this section,
a taxpayer entitled to such credit may elect to instead apply the
deferment of the tax increment authorized pursuant to article six-h
of this chapter. Any taxpayer making such election shall be fully
subject to the terms and limitations set forth in article six-h of
this chapter.
(d) Application for tax credit; renewals; waiver of tax
credit. --
(1) General. -- No tax credit may be allowed under this
section unless an application for tax credit is filed with the
assessor of the county in which the homestead is located, on or
before the first day of November following mailing of the tax
ticket in which the tax increment that is the subject of the
application is contained, such tax ticket being mailed pursuant to
section eight, article one, chapter eleven-a of this code. In the case of sickness, absence or other disability of the owner, the
application may be filed by the owner or his or her duly authorized
agent.
(2) Renewals. -- After the owner has filed an application for
tax credit with his or her assessor, there shall be no need for
that owner to refile an application for the tax credit. However,
the taxpayer shall in all cases be required to file a personal
income tax return in order to claim the credit in any tax year.
(e) Determination; notice of denial of application for tax
credit. --
(1) The assessor shall, as soon as practicable after an
application for tax credit is filed, review that application and
either approve or deny it. If the application is denied, the
assessor shall promptly, but not later than the first day of
January, serve the owner with written notice explaining why the
application was denied and furnish a form for filing with the
county commission, should the owner desire to take an appeal. The
notice required or authorized by this section shall be served on
the owner or his or her authorized representative either by
personal service or by certified mail. The assessor shall approve
or disapprove an application for tax credit within thirty days of
receipt. Any application not approved or denied within thirty days
is deemed approved.
(2) In the event that the assessor has information sufficient
to form a reasonable belief that an owner, after having been
originally granted a tax credit, is no longer eligible for the tax credit, he or she shall, within thirty days after forming this
reasonable belief, revoke the tax credit and serve the owner with
written notice explaining the reasons for the revocation and
furnish a form for filing with the county commission should the
owner desire to take an appeal.
(f) Appeals procedure. --
(1) Notice of appeal; thirty days. -- Any owner aggrieved by
the denial of his or her claim for application for tax credit or
the revocation of a previously approved tax credit may appeal to
the county commission of the county within which the property is
situated. All such appeals shall be filed within thirty days after
the owner's receipt of written notice of the denial of an
application or the revocation of a previously approved tax credit,
as applicable, pursuant to subsection (e) of this section.
(2) Review; determination; appeal. -- The county commission
shall complete its review and issue its determination as soon as
practicable after receipt of the notice of appeal, but in no event
later than the twenty-eighth day of February following the tax year
for which the tax credit was sought. In conducting its review, the
county commission may hold a hearing on the application. The
assessor or the owner may apply to the circuit court of the county
for review of the determination of the county commission in the
same manner as is provided for appeals from the county commission
in section twenty-five, article three of this chapter.
(g) Termination of tax credit. --
(1) Any tax credit approved in accordance with the provisions of this section shall terminate immediately when any of the
following events occur:
(A) The death of the owner of the property for which the tax
credit was authorized;
(B) The sale of the property for which the tax credit was
approved; or
(C) A determination by the assessor that the property for
which the tax credit was approved no longer qualifies for the tax
credit in accordance with the provisions of this section.
(h) Forms, instructions and regulations. -- The Tax
Commissioner shall prescribe and supply all necessary instructions
and forms for administration of this section. Additionally, the Tax
Commissioner may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code as the Tax Commissioner considers necessary for
the implementation of this section.
(i) Criminal penalties; restitution. --
(1) False or fraudulent claim for tax credit. -- Any owner who
willfully files a fraudulent application for tax credit and any
person who knowingly assisted in the preparation or filing of such
fraudulent application for tax credit or who knowingly supplied
information upon which the fraudulent application for tax credit
was prepared or allowed is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two hundred fifty
nor more than five hundred dollars, or imprisoned in jail for not
more than one year, or both fined and imprisoned.
(2) In addition to the criminal penalties provided above, upon
conviction of any of the above offenses, the court shall order that
the defendant make restitution unto this state for all taxes not
paid due to an improper tax credit, or continuation of a tax
credit, for the owner and interest thereon at the legal rate until
paid.