ENROLLED
Senate Bill No. 455
(By Senators Tomblin, Mr. President, and Buckalew,
By Request of the Executive)
____________
[Passed April 11, 1997; in effect ninety days from passage.]
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AN ACT to amend and reenact sections three, four, four-a, eight,
eleven and twelve, article thirteen-j, chapter eleven of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended, all relating generally to the neighborhood
investment program act; amending the definition of
economically disadvantaged area; eliminating certain
definitions; removing certain time limitations within which an
application for approval of a project must be certified and
permitting the neighborhood investment program advisory board
to delay consideration of an application when additional
information is needed; requiring project transferees to file
quarterly reports on progress of certified projects; removing
obsolete language regarding an initial appropriation from
general revenue for administrative expenses and initial
appointments to the advisory board; permitting advisory board members to solicit support or donations for certified
projects; reducing the required number of meetings of the
advisory board; clarifying language permitting the tax
division and the development office to perform joint audits;
clarifying program evaluation language; and providing for
termination of the act on the first day of July, one thousand
nine hundred ninety-nine.
Be it enacted by the Legislature of West Virginia:
That sections three, four, four-a, eight, eleven and twelve,
article thirteen-j, chapter eleven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 13J. NEIGHBORHOOD INVESTMENT PROGRAM.
§11-13J-3. Definitions.
(a)
General. -- When used in this article, or in the
administration of this article, terms defined in subsection (b) of
this section shall have the meanings ascribed to them by this
section, unless a different meaning is clearly required by either
the context in which the term is used, or by specific definition in
this article.
(b)
Terms defined.
(1)
Affiliate. -- The terms "affiliate" or "affiliates"
include all concerns which are affiliates of each other when either directly or indirectly:
(A) One concern controls or has the power to control the
other; or
(B) A third party or third parties control or have the power
to control both. In determining whether concerns are independently
owned and operated and whether or not affiliation exists,
consideration shall be given to all appropriate factors, including
common ownership, common management and contractual relationships.
(2)
Capacity building. -- The term "capacity building" means
to generally enhance the capacity of the community to achieve
improvements and to obtain the community services described in
items (i) through (v), inclusive, of the definition of that term,
as set forth in subdivision (4) of this subsection. Capacity
building includes, but is not limited to, improvement of the means,
or capacity, to:
(i) Access, obtain and use private, charitable and
governmental assistance programs, administrative assistance, and
private, charitable and governmental resources or funds;
(ii) Fulfill legal, bureaucratic and administrative
requirements and qualifications for accessing assistance, resources
or funds; and
(iii) Attract and direct political and community attention to
needs of the community for the purpose of increasing access to and use of assistance, resources or funds for a given purpose, goal or
need.
(3)
Commissioner or tax commissioner. -- The terms
"commissioner" and "tax commissioner" are used interchangeably
herein and mean the tax commissioner of the state of West Virginia,
or his or her delegate.
(4)
Community services. -- "Community services" means
services, provided at no charge whatsoever, of:
(i) Providing any type of health, personal finance,
psychological or behavioral, religious, legal, marital, educational
or housing counseling and advice to economically disadvantaged
citizens or a specifically designated group of economically
disadvantaged citizens or in an economically disadvantaged area; or
(ii) Providing emergency assistance or medical care to
economically disadvantaged citizens or to a specifically designated
group of economically disadvantaged citizens or in an economically
disadvantaged area; or
(iii) Establishing, maintaining or operating recreational
facilities, or housing facilities for economically disadvantaged
citizens or a specifically designated group of economically
disadvantaged citizens or in an economically disadvantaged area; or
(iv) Providing economic development assistance to economically
disadvantaged citizens or a specifically designated group of economically disadvantaged citizens; without regard to whether they
are located in an economically disadvantaged area, or to
individuals, groups or neighborhood or community organizations, in
an economically disadvantaged area; or
(v) Providing community technical assistance and capacity
building to economically disadvantaged citizens or a specifically
designated group of economically disadvantaged citizens, or to
individuals, groups or neighborhood or community organizations in
an economically disadvantaged area.
(5)
Compensation. -- The term "compensation" means wages,
salaries, commissions and any other form of remuneration paid to
employees for personal services.
(6)
Corporation. -- The term "corporation" means any
corporation, joint-stock company or association and any business
conducted by a trustee or trustees wherein interest or ownership is
evidenced by a certificate of interest or ownership or similar
written instrument.
(7)
Crime prevention. -- "Crime prevention" means any activity
which aids in the reduction of crime.
(8)
Delegate. -- The term "delegate" in the phrase "or his or
her delegate", when used in reference to the tax commissioner,
means any officer or employee of the tax division of the department
of tax and revenue duly authorized by the tax commissioner directly, or indirectly by one or more redelegations of authority,
to perform the functions mentioned or described in this article.
(9)
Director or director of the West Virginia development
office. -- The term "director" or "director of the West Virginia
development office" means the director of the West Virginia office.
(10)
Economically disadvantaged area. -- The term
"economically disadvantaged area" means:
(A) In a municipality - any area not exceeding fifteen square
miles in West Virginia which contains any portion of an
incorporated municipality and:
(i) In which area the aggregate poverty rate of persons
residing in the area, based upon the most recent decennial census
of population, is at least one hundred twenty-five percent of the
statewide poverty rate; and
(ii) That is certified as an economically disadvantaged area
by the West Virginia development office;
(B) In a rural area - any area not exceeding twenty-five
square miles in West Virginia:
(i) Which area is located in a rural area and which contains
no incorporated municipalities or portions thereof;
(ii) In which area the aggregate poverty rate of persons
residing in the area, based upon the most recent decennial census
of population, is at least one hundred twenty-five percent of the statewide poverty rate; and
(iii) That is certified as an economically disadvantaged area
by the West Virginia development office;
(C) An economically disadvantaged area shall qualify as such
only pursuant to a certification issued by the West Virginia
development office. Such certifications issued by the West
Virginia development office shall expire after the passage of five
calendar years, unless specifically limited to a shorter time by
specific order of the West Virginia development office, and no area
shall hold the status of a certified economically disadvantaged
area for a period of time greater than ten years, either
consecutively or in the aggregate;
(D) The certification of an economically disadvantaged area
shall be made on the basis of a determination by the development
office that an area meets the poverty criteria established in
paragraphs (A) and (B) of this subdivision;
(E) No economically disadvantaged area may be certified within
twenty-five miles of any other certified economically disadvantaged
area. Not more than six economically disadvantaged areas may hold
the status of certified economically disadvantaged areas at any one
time in this state;
(F) At least a majority of all economically disadvantaged
areas holding designations as economically disadvantaged areas at any one time shall be located in rural areas; and
(G) Such certification shall be filed with the secretary of
state and shall specifically set forth the boundaries of the
economically disadvantaged area by both description and map, the
date of certification of the area as an economically disadvantaged
area, the date on which such certification will terminate and a
statement of the director's findings as to the aggregate poverty
rate of persons living in the certified economically disadvantaged
area.
(11)
Economically disadvantaged citizen. -- The term
"economically disadvantaged citizen" means a natural person, who
during the current taxable year has, or during the immediately
preceding taxable year had, an annual gross personal income not
exceeding one hundred twenty-five percent of the federal designated
poverty level for personal incomes, and who is a domiciliary and
resident of this state.
(12)
Education. -- "Education" means any type of scholastic
instruction to, or scholarship by, an individual that enables such
individual to prepare for better life opportunities. Education does
not include courses in physical training, physical conditioning,
physical education, sports training, sports camps and similar
training or conditioning courses (except for physical therapy
prescribed by a physician or other person licensed to prescribe courses of medical treatment under West Virginia law).
(13)
Eligible contribution. --
(A) An eligible contribution consists of cash, tangible
personal property valued at its fair market value, real property
valued at its fair market value or a contribution of in kind
professional services valued at seventy-five percent of fair market
value;
(B) For purposes of this definition, the value of in kind
professional services will not qualify as an eligible contribution
unless the services are:
(i) Reasonably priced and valued, and reasonably necessary
services customarily and normally provided by the contributor in
the normal course of business to customers, clients or patients
other than those encompassed by the project plan;
(ii) Not reimbursable, in whole or in part, from sources other
than the tax credit provided under this article; and
(iii) Are services which are not available without cost
elsewhere in the community;
(C) The term "professional services" means only those services
provided directly by a physician licensed to practice in this
state, those services provided directly by a dentist licensed to
practice in this state, those services provided directly by a
lawyer licensed to practice in this state, those services provided directly by a registered nurse, licensed practical nurse, dental
hygienist or other health care professional licensed to practice in
this state and those services provided directly by a certified
public accountant or public accountant licensed to practice in this
state;
(D)
Minimum contribution. -- No contribution of cash, property
or professional services or any combination thereof contributed in
any tax year by any taxpayer having a fair market value of less
than five hundred dollars qualifies as an eligible contribution;
(E)
Maximum contribution. -- No contribution of cash, property
or professional services or any combination thereof contributed in
any tax year by any taxpayer having a fair market value in excess
of two hundred thousand dollars qualifies as an eligible
contribution; and
(F)
Limitations. -- Not more than twenty-five percent of total
eligible contributions to a certified project may be in kind
contributions. Not more than twenty-five percent of total eligible
contributions made by any taxpayer to any certified project may be
in kind contributions.
(14)
Eligible taxpayer. --
(A) The term "eligible taxpayer" means any person subject to
the taxes imposed by article twenty-one, twenty-three or twenty- four of this chapter which makes an eligible contribution to a qualified charitable organization pursuant to the terms of a
certified project plan for the purpose of providing neighborhood
assistance, community services or crime prevention, or for the
purpose of providing job training or education for individuals not
employed by the contributing taxpayer or an affiliate of the
contributing taxpayer or a person related to the contributing
taxpayer;
(B) "Eligible taxpayer" also includes an affiliated group of
taxpayers if such group elects to file a consolidated corporation
net income tax return under article twenty-four of this chapter and
if one or more affiliates included in such affiliated group would
qualify as an eligible taxpayer under paragraph (A) of this
subdivision.
(15)
Includes and including. -- The terms "includes" and
"including", when used in a definition contained in this article,
shall not be deemed to exclude other things otherwise within the
meaning of the term defined.
(16)
Job training. -- "Job training" means instruction to an
individual that enables the individual to acquire vocational skills
so as to become employable or to be able to seek a higher grade of
employment.
(17)
Natural person or individual. -- The term "natural
person" and the term "individual" means a human being. The terms "natural person" and "individual" do not mean, and specifically
exclude any corporation, limited liability company, partnership,
joint venture, trust, organization, association, agency,
governmental subdivision, syndicate, affiliate or affiliation,
group, unit or any entity other than a human being.
(18)
Neighborhood assistance. -- "Neighborhood assistance"
means either:
(A) Furnishing financial assistance, labor, material and
technical advice to aid in the physical or economic improvement of
any part or all of an economically disadvantaged area; or
(B) Furnishing technical advice to promote higher employment
in an economically disadvantaged area.
(19)
Neighborhood organization. -- "Neighborhood organization"
means any organization:
(A) Which is performing community services, as defined in this
section; and
(B) Which is exempt from income taxation under Section
501(c)(3) of the Internal Revenue Code.
(20)
Partnership and partner. -- The term "partnership"
includes a syndicate, group, pool, joint venture or other
unincorporated organization through or by means of which any
business, financial operation or venture is carried on, and which
is not a trust or estate, a corporation or a sole proprietorship. The term "partner" includes a member in such a syndicate, group,
pool, joint venture or organization.
(21)
Person. -- The term "person" includes any natural person,
corporation, limited liability company or partnership.
(22)
Project transferee. -- The term "project transferee"
means any neighborhood organization, qualified charitable
organization, charitable organization or other organization, entity
or person that receives an eligible contribution or part of an
eligible contribution from an eligible taxpayer for the purpose of
directly or indirectly providing neighborhood assistance, community
services or crime prevention, or for the purpose of providing job
training or education or other services or assistance pursuant to
a project plan. The project transferee is typically the first
entity or person receiving eligible contributions from eligible
taxpayers under a project plan. However, in the case of eligible
contributions of in kind services or other eligible contributions
or portions thereof made pursuant to a certified project plan
directly to indigent, disadvantaged or needy persons, economically
disadvantaged citizens or other persons or organizations under the
sponsorship or auspices of any neighborhood organization, qualified
charitable organization, charitable organization or other
organization, entity or person as a certified project participant,
such eligible contributions shall be deemed to have been made to the entity, organization or person under whose sponsorship or
auspices such eligible contributions are made, and that entity,
organization or person is deemed to be the project transferee with
relation to those eligible contributions. The project transferee
is the entity, organization or person that is liable under this
article for payment of the project certification fee to the West
Virginia development office. The term "project transferee" shall
mean and include any deemed project transferee, deemed as such
under the provisions of this article.
(23)
Qualified charitable organization. -- The term "qualified
charitable organization" means a neighborhood organization, as
defined in this section, which is the sponsor of a project which
has received certification by the director of the West Virginia
development office pursuant to the requirements of this article:
Provided, That no organization may qualify as a qualified
organization for purposes of this article if such organization is
not registered with this state as required under the solicitation
of charitable funds act.
(24)
Related person. -- The term "related person" or "person
related to" a stated taxpayer means:
(A) An individual, corporation, partnership, affiliate,
association or trust or any combination or group thereof controlled
by the taxpayer; or
(B) An individual, corporation, partnership, affiliate,
association or trust or any combination or group thereof that is in
control of the taxpayer; or
(C) An individual, corporation, partnership, affiliate,
association or trust or any combination or group thereof controlled
by an individual, corporation, partnership, affiliate, association
or trust or any combination or group thereof that is in control of
the taxpayer; or
(D) A member of the same controlled group as the taxpayer.
For purposes of this article, "control", with respect to a
corporation means ownership, directly or indirectly, of stock
possessing fifty percent or more of the total combined voting power
of all classes of the stock of such corporation which entitles its
owner to vote. "Control", with respect to a trust, means
ownership, directly or indirectly, of fifty percent or more of the
beneficial interest in the principal or income of such trust. The
ownership of stock in a corporation, of a capital or profits
interest in a partnership or association or of a beneficial
interest in a trust shall be determined in accordance with the
rules for constructive ownership of stock provided in Section
267(c), other than paragraph (3) of such section, of the United
States Internal Revenue Code, as amended.
(25)
State fiscal year. -- "State fiscal year" means a twelve-month period beginning on the first day of July and ending on the
thirtieth day of June.
(26)
Taxpayer. -- The term "taxpayer" means any person subject
to the tax imposed by article twenty-one, twenty-three or twenty- four of this chapter (or any one or combination of such articles of
this chapter).
(27)
Technical assistance. -- The term "technical assistance"
means:
(A) Assistance in understanding, using and fulfilling the
legal, bureaucratic and administrative requirements and
qualifications which must be negotiated for the purpose of
effectively accessing, obtaining and using private, charitable,
not-for-profit or governmental assistance, resources or funds, and
maximizing the value thereof;
(B) Assistance provided by any person holding a license under
West Virginia law to practice any licensed profession or
occupation, whereby such person, in the practice of such profession
or occupation, assists economically disadvantaged citizens or the
persons in an economically disadvantaged area by:
(i) Providing any type of health, personal finance,
psychological or behavioral, religious, legal, marital, educational
or housing counseling and advice to economically disadvantaged
citizens or a specifically designated group of economically disadvantaged citizens or in an economically disadvantaged area; or
(ii) Providing emergency assistance or medical care to
economically disadvantaged citizens or to a specifically designated
group of economically disadvantaged citizens or in an economically
disadvantaged area; or
(iii) Establishing, maintaining or operating recreational
facilities, or housing facilities for economically disadvantaged
citizens or a specifically designated group of economically
disadvantaged citizens or in an economically disadvantaged area; or
(iv) Providing economic development assistance to economically
disadvantaged citizens or a specifically designated group of
economically disadvantaged citizens, without regard to whether they
are located in an economically disadvantaged area, or to
individuals, groups or neighborhood or community organizations, in
an economically disadvantaged area; or
(v) Providing community technical assistance and capacity
building to economically disadvantaged citizens or a specifically
designated group of economically disadvantaged citizens or to
individuals, groups or neighborhood or community organizations in
an economically disadvantaged area.
§11-13J-4. Eligibility for tax credits; creation of neighborhood
investment fund; certification of project plans by the West
Virginia development office.
(a) A neighborhood organization which seeks to sponsor a
project and have that project certified pursuant to this article
shall submit to the director of the West Virginia development
office an application for certification of a project plan, in such
form as the director shall prescribe, setting forth the project to
be implemented, the identity of all project participant
organizations, the economically disadvantaged citizens or a
specifically designated group of economically disadvantaged
citizens, to be assisted by the project, or the economically
disadvantaged area or areas selected for assistance by the project,
the amount of total tax credits to be created by the proposed
project pursuant to the receipt of eligible contributions from
eligible taxpayers under this article, the amount of the total
estimated eligible contributions to be received pursuant to the
project and the schedule for implementing the project.
(b)
Project certification fee; payment of costs; revolving
fund. --
(1) (A)
Project certification fee. -- Any project transferee
that receives eligible contributions under or pursuant to a
certified project plan shall pay to the West Virginia development
office a project certification fee in the amount of three percent
of the amount of the total eligible contributions received by such
project transferee pursuant to the certified project plan. The project certification fee shall be paid to the West Virginia
development office within thirty days of the receipt of any
eligible contribution, or portion thereof.
(B)
Eligible contributions made through direct service to end
users or recipients, or contributions to end users or recipients.
-- In the case of eligible contributions of in kind services or
other eligible contributions or portions thereof made pursuant to
a certified project plan and contributed or provided directly to
indigent, disadvantaged or needy persons, economically
disadvantaged citizens or other persons or organizations made under
the sponsorship or auspices of any neighborhood organization,
qualified charitable organization, charitable organization or other
organization, entity or person as a certified project participant,
such eligible contributions shall be deemed to have been made to
the entity, organization or person under whose sponsorship or
auspices such eligible contributions are made, and that entity,
organization or person is deemed to be the project transferee with
relation to those eligible contributions. Such deemed project
transferee shall be liable for the project certification fee due
for such eligible contributions.
(C)
Computation of fee based on fair market value. -- In the
case of eligible contributions consisting of in kind services,
tangible personal property or realty, the project transferee shall pay to the West Virginia development office a project certification
fee in the amount of three percent of the fair market value of
eligible contributions received pursuant to the certified project
plan.
(2)
Sanctions for failure to timely pay the project
certification fee. -- Failure to timely pay the project
certification fee imposed by this section shall be grounds for
imposition of any of the following sanctions, to be imposed by the
director of the West Virginia development office at the discretion
of the director:
(A) Prospective revocation of the project certification.
No tax credit shall be allowed for any project for which
certification has been revoked for periods subsequent to the
effective date of revocation. Credit taken by any taxpayer in
accordance with this article pursuant to the making of an eligible
contribution to a project transferee pursuant to a certified
project plan prior to the effective date of revocation of project
certification shall not be subject to recapture by reason of
revocation of the certification. However, such credit shall
otherwise be subject to audit and adjustment or recapture in
accordance with the requirements of this article.
(B) Retroactive withdrawal of the project certification.
No tax credit shall be allowed for any project for which certification has been withdrawn. Credit taken by any taxpayer in
accordance with this article pursuant to the making of an eligible
contribution to a project transferee pursuant to a certified
project plan for which certification is later withdrawn pursuant to
the provisions of this section shall be subject to recapture upon
withdrawal of the certification.
(C) Suspension of the project certification for a stated
period of time.
No tax credit shall be allowed for contributions made during
the suspension period for a project. Credit taken by any taxpayer
in accordance with this article pursuant to the making of an
eligible contribution to a project transferee pursuant to a
certified project plan prior to or subsequent to the suspension
period shall not be subject to recapture by reason of the
suspension. However, such credit shall otherwise be subject to
audit and adjustment or recapture in accordance with the
requirements of this article.
(D) Temporary or permanent disqualification of one or more
project transferees, neighborhood organizations, qualified
charitable organizations, charitable organizations or other
organizations, entities or persons from participation in a
particular specified certified project.
No tax credit shall be allowed under this article for any contribution made during the disqualification period to any project
transferee, neighborhood organization, qualified charitable
organization, charitable organization or other organization, entity
or person disqualified under this section from participation in a
certified project. Tax credit taken by any taxpayer in accordance
with this article pursuant to the making of an eligible
contribution to any project transferee, neighborhood organization,
qualified charitable organization, charitable organization or other
organization, entity or person pursuant to a certified project plan
prior to or subsequent to the disqualification period shall not be
subject to recapture by reason of the disqualification of the
recipient thereof. However, such credit shall otherwise be subject
to audit and adjustment or recapture in accordance with the
requirements of this article.
(E) Temporary or permanent disqualification of any project
transferee, neighborhood organization, qualified charitable
organization, charitable organization or other organization, entity
or person, or group thereof, from participation in any and all
certified projects currently in existence or to be formed, proposed
or certified under this article:
(i) No tax credit shall be allowed under this article for any
contribution made during the disqualification period to any project
transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity
or person disqualified under this section from participation in any
and all certified projects under this article. Tax credit taken by
any eligible taxpayer in accordance with this article pursuant to
the making of an eligible contribution to the project transferee,
neighborhood organization, qualified charitable organization,
charitable organization or other organization, entity or person
disqualified from participation in any and all certified projects
under this article, pursuant to a certified project plan prior to
or subsequent to the disqualification period shall not be subject
to recapture by reason of the disqualification. However, such
credit shall otherwise be subject to audit and adjustment or
recapture in accordance with the requirements of this article; and
(ii) No certification shall be issued during the
disqualification period for any proposed project in which a project
transferee, neighborhood organization, qualified charitable
organization, charitable organization or other organization, entity
or person disqualified under this section from participation in any
and all certified projects is listed as a proposed project
participant.
(F) Any combination of the aforementioned sanctions.
(3)
Audits and investigations. -- The West Virginia
development office or the department of tax and revenue, or both, may initiate and carry out investigations or audits of any
recipient of any eligible contribution under this article, any
eligible taxpayer or any project transferee to determine whether
the project certification fee imposed by this section has been paid
in accordance with the requirements of this article.
(4)
Procedures, failure to timely pay the project
certification fee upon written demand. --
(A)
Written demand. -- The director of the West Virginia
development office shall, upon a reasonable belief that a project
transferee has failed to timely pay the fee imposed by this
section, issue a written demand for payment thereof, plus interest
determined at the interest rate prescribed under section seventeen,
article ten of this chapter, in such form as the director of the
West Virginia development office may specify. The director of the
West Virginia development office may also impose a penalty for
failure to timely pay the project certification fee in the amount
of twenty percent of the amount of the project certification fee
due and interest due. Such demand shall notify the project
transferee of the opportunity to show that the project
certification fee is not due and owing.
(B)
Failure to pay pursuant to written demand. --
Failure of the project transferee to pay any project
certification fee due, with interest and penalties, as stated in the written demand for payment of the project certification fee,
within thirty days of service of such demand, and failure of the
project transferee to prove to the satisfaction of the director of
the West Virginia development office that the fee imposed by this
section is not due and owing, shall result in a determination by
the director of the West Virginia development office that sanctions
shall apply.
(C)
Notice of pending sanctions. -- Upon the making of a
determination by the director of the West Virginia development
office that sanctions for failure to pay the project certification
fee apply, the director of the West Virginia development office
shall serve upon the project transferee from which the project
certification fee, or some portion thereof, is due and owing, a
notice of pending sanctions. If the project transferee from which
the certified project fee, or some portion thereof, is due and
owing is not the applicant for project certification, then an
informational copy of the notice of pending sanctions shall also be
served upon the applicant for project certification.
(D)
Service of notice, content of notice. -- The notice of
pending sanctions shall be served upon the delinquent project
transferee in the same manner as an assessment of tax in accordance
with article ten of this chapter. Such notice of pending sanctions
shall state the sanctions to be applied in accordance with this section, the effective date or dates of such sanctions, with
specific statements of whether any sanction is to be applied
retroactively or in part retroactively, and the commencement and
termination dates for any suspensions of certification or temporary
disqualifications of any program transferee, neighborhood
organization, qualified charitable organization, charitable
organization or other organization, entity or person to be
disqualified under this section from participation in certified
projects. The notice of pending sanctions shall state that
sanctions shall be imposed sixty days after service of the notice
of pending sanctions upon the delinquent project transferee, unless
the delinquent project transferee pays the amount of the project
certification fee due and owing, plus interest and penalties.
(E)
Appeals. -- The project transferee may file an appeal of
pending sanctions as if the notice of pending sanctions were an
assessment of tax under article ten of this chapter, and the matter
on appeal shall be subject to the procedures set forth in article
ten of this chapter. On appeal, the burden of proof shall be on
the project transferee to prove that the project certification fee
and associated interest and penalties are not due and owing. The
review on appeal shall be limited to:
(i) The issue of whether a failure to timely pay the project
certification fee or any portion thereof has occurred, the time period or periods over which such failure occurred, and whether
such failure continues to occur;
(ii) The amount of the project certification fee and interest
due; and
(iii) The mathematical and methodological accuracy of the
computation of the project certification fee, interest and
penalties.
(F)
Statutory confidentiality. -- No information, document or
proceeding brought pursuant to this section, relating to the
liability of any project transferee for the project certification
fee, interest or penalties imposed under this section is subject to
the confidentiality provisions of article ten of this chapter or
any other confidentiality provision of this code. However, any
proceeding relating to any amount of tax due or the recapture of
tax credit taken under this article or any adjustment of the amount
of tax credit taken under this article is subject to the provisions
of article ten of this chapter, including all statutory
confidentiality provisions, and shall be subject to all other
applicable statutory tax confidentiality provisions of this code.
(G)
Effect of a final determination, waiver of penalties or
sanctions. -- The notice of pending sanctions shall become final
sixty days after service, unless an appeal is filed under this
section, and shall not be subject to further appeal by the recipient thereof. When a determination has become final that a
project transferee has failed to timely pay the project
certification fee, or any part thereof, the sanctions described in
the notice of pending sanctions shall apply, effective as of the
date set forth in that notice, unless the project certification
fee, interest and penalties due are paid to the West Virginia
development office within thirty days of the date on which the
determination has become final. The twenty percent penalty
authorized under this section may be imposed, adjusted, withdrawn
or waived, in whole or in part, at the discretion of the director
of the West Virginia development office. However, payment of the
project certification fee and interest due shall not be subject to
waiver. The sanctions for failure to pay the project certification
fee authorized under this section may be imposed, adjusted,
withdrawn or waived, in whole or in part, at the discretion of the
director of the West Virginia development office.
(c) Within sixty days after the close of the regular meeting
of the neighborhood investment advisory board at which a complete
application for approval of a proposed project is considered by the
board, the director of the West Virginia development office shall
certify, or deny certification of, the proposed project for which
such application has been filed:
Provided, That applications for
which the board requires additional information may be considered at the next regular meeting of the board. Those applications not
approved by the director within sixty days of final action of the
board shall be deemed disapproved by operation of law.
(d) The West Virginia development office shall promptly notify
an applicant as to whether an application for certification of a
project plan has been approved or disapproved.
(e) Those prospective qualified charitable organizations which
receive certification of a project plan, and which otherwise comply
with the requirements of this article so as to become qualified
charitable organizations, as defined in section three of this
article, may receive eligible contributions, as defined in said
section. Eligible taxpayers which make eligible contributions
shall receive a tax credit as provided in section five of this
article. No tax credit may be granted under this article for any
contribution except eligible contributions made to a project which
has been certified in accordance with the requirements of this
article prior to the making of the contribution. No tax credit may
be granted under this article for any contribution which, if
allowed, would cause the amount of tax credit generated by the
project to exceed the maximum amount of tax credit for which the
project was certified as stated in the application for project
certification filed with the West Virginia development office.
(f) All applications for certification of a project filed with the West Virginia development office, whether such project is
certified or denied certification, are public information which may
be viewed and copied by the public and, at the discretion of the
West Virginia development office, published by the West Virginia
development office.
(g) Project transferees shall file quarterly reports with the
West Virginia development office on the progress of the certified
project. The quarterly reports shall be filed in a form approved
by the director.
(h)
Revolving fund. --
(1) For the purpose of permitting payments to be made and
costs to be met for operation of the program established by this
article, there is hereby created a revolving fund for the West
Virginia development office, which shall be known as the
neighborhood investment fund. All money received by the West
Virginia development office under this article shall be paid into
the state treasury, and shall be deposited to the credit of the
neighborhood investment fund, and shall be expended only for the
purposes of defraying the costs of the neighborhood investment
program advisory board and the West Virginia development office in
administering the program established pursuant to this article,
unless otherwise directed by the Legislature.
(2) The neighborhood investment fund shall be accumulated and administered as follows:
(A) Payments received under this article shall be deposited
into the neighborhood investment fund.
(B) Any appropriations made to the neighborhood investment
fund shall not be deemed to have expired at the end of any fiscal
period.
§11-13J-4a. Neighborhood investment program advisory board.
(a) There is hereby created a neighborhood investment program
advisory board, which shall consist of twelve voting members and
the chairperson.
(b)
Chairperson. --
(1) The director of the West Virginia development office, or
the designee of the director of the West Virginia development
office, shall be the ex officio chairperson of the neighborhood
investment program advisory board.
(2) The chairperson shall vote on actions of the board only in
the event of a tie vote, in which case the chairperson's vote shall
be the deciding vote.
(c)
Board members. --
(1) Four members shall be officers or members of the boards of
directors of unrelated corporations which are not affiliated with
one another and which are currently licensed to do business in West Virginia.
(2) Four members shall be executive directors, officers or
members of the boards of directors of unrelated not-for-profit
organizations which are not affiliated with one another which
currently hold charitable organization status under Section
501(c)(3) of the Internal Revenue Code and which are currently
licensed to do business in West Virginia.
(3) Four members shall be economically disadvantaged citizens
of the state that, for the taxable year immediately preceding the
year of appointment to the board, had an annual gross personal
income that was not more than one hundred twenty-five percent of
the federal designated poverty level for personal incomes, and who
has been a domiciliary and resident of this state for at least one
year at the time of appointment.
A member appointed under this subdivision is not disqualified
from completion of his or her term if his or her income in the year
of appointment or in any year subsequent to the year of appointment
exceeds one hundred twenty-five percent of the federal designated
poverty level. A member shall not be eligible for reappointment
under this subdivision unless he or she meets the original
qualifications for appointment:
Provided, That such member may be
reappointed pursuant to qualification under subdivision (1) or (2)
of this subsection if the member meets the requirements of subdivision (1) or (2), respectively.
(d)
Limitations; terms of members; appointments. --
(1) Not more than four members (exclusive of the chairperson)
shall be appointed from any one congressional district. Not more
than seven of the members (exclusive of the chairperson) may belong
to the same political party. Members shall be eligible for
reappointment. However, no member may serve for more than three
consecutive terms.
(2)
Appointment terms. --
(A) Except for initial appointments described under
subdivision (3) of this subsection, and except for midterm special
appointments made to fill irregular vacancies on the board, members
shall be appointed for terms of three years each.
(B) Except for midterm special appointments made to fill
irregular vacancies on the board, appointment terms shall begin on
the first day of July of the beginning year. All appointment
terms, special and regular, shall end on the thirtieth day of June
of the ending year.
(3)
Selection of members. --
(A) For the initial appointment of members under this
subdivision, members shall be selected by the director of the West
Virginia development office.
(B) At the end of a member's term, the chairperson shall solicit new member nominations from the board and appoint the most
appropriate person to serve, in compliance with the requirements
set forth in this section.
(C) Vacancies on the board shall be filled in the same manner
as the original appointments for the duration of the unexpired
term.
(e)
Quorum; meetings; funding. --
(1) The presence of a majority of the members of the board
constitutes a quorum for the transaction of business. The board
shall elect from among its members a vice chairperson and such
other officers as are necessary.
(2) The board shall meet not less than four times during the
fiscal year, and additional meetings may be held upon a call of the
chairperson or of a majority of the members:
Provided, That no
meeting of the board shall be required if the total amount of tax
credits available for the fiscal year have been allotted.
(3) Board members shall be reimbursed by the West Virginia
development office for sums necessary to carry out responsibilities
of the board and for reasonable travel expenses to attend board
meetings.
(f)
Annual report. -- The board shall make a report to the
governor and the Legislature within thirty days of the close of
each fiscal year. The report shall include summaries of all meetings of the board, an analysis of the overall progress of the
program, fiscal concerns, the relative impact the program is having
on the state and any suggestions and policy recommendations that
the board may have. The report shall be public information made
available to the general public for examination and copying. The
board is authorized to publish the annual report, should the board
elect to do so.
(g)
Duties of the board. --
(1)
Administrative duties. -- The board shall be responsible
for advising the West Virginia development office concerning the
administrative obligations of the program.
(2)
Project evaluation and approval; prohibition on project
promotion. --
(A) The board shall select and approve projects, which may
then be certified by the director of the West Virginia development
office pursuant to section four of this article.
(B) Only projects sponsored by qualified charitable
organizations, as defined in section three of this article, may be
approved by the board or certified by the director of the West
Virginia development office. An applicant that does not hold
current status as a charitable organization under Section 501(c)(3)
of the Internal Revenue Code may not receive project approval from
the board, or project certification from the director of the West Virginia development office, for any proposed project. Failure of
any applicant to provide convincing documentation proving such
status as a charitable organization under Section 501(c)(3) of the
Internal Revenue Code shall result in automatic denial of project
approval and denial of project certification under this article.
(3)
Criteria for evaluation. -- In evaluating projects for
approval, the board shall give priority to projects based upon the
following criteria. A proposed project shall be favored if:
(A) The project is community based. A project is community
based if:
(i) The project is to be managed locally, without national,
state, multi-state or international affiliations;
(ii) The project will benefit local citizens in the immediate
geographic area where the project is to operate; and
(iii) The sponsor of the project is a local entity, rather
than a statewide, national or international organization or an
affiliate of a statewide, national or international organization.
(B) The proposed project will primarily serve low income
persons.
(C) The proposed project will serve highly distressed
neighborhoods or communities.
(D) The project plan incorporates collaborative partnerships
among nonprofit groups, businesses, government organizations and other community organizations.
(E) The applicant or sponsor of the project has demonstrated
a proven capacity to deliver the proposed services.
(F) The applicant or sponsor of the project historically
maintains low administrative costs.
(G) The applicant produces a strong showing of need for the
services which the proposed project would provide, and produces
convincing documentation of that need.
(H) The proposed project is innovative, novel, creative or
unique in program approach.
(4) In the event that an applicant is directly or indirectly
affiliated with one or more board members, those members may
discuss the proposals with the board, but may not have a vote when
that project is considered for final approval or disapproval.
(5)
Project approval by the board. -- Proposed projects shall
be approved or denied approval by a majority vote of the board
after competitive comparison with proposed projects of other
applicants.
(h)
Project certification by the director of the West Virginia
development office. --
(1) Upon issuance of approval for a project by the board, the
approved project shall be certified by the director of the West
Virginia development office:
Provided, That no certification may issue for any project, even though the project may have been
approved by the board, if the issuance of certification for such
project will cause the aggregate amount of tax credits certified to
exceed the limitation set forth in this article. No certification
may be issued by the director of the West Virginia development
office for any project which has not been approved by the board.
(2) The West Virginia development office shall promptly notify
applicants of the issuance of certification for their projects, and
shall issue tax credit vouchers to certified project applicants in
the amount of the tax credit represented by the project.
(3) The West Virginia development office may provide
incidental technical support and guidance to projects certified
under this article and may monitor the progress of the projects.
The West Virginia development office shall make a quarterly report
to the board on the progress of certified projects and the program
generally.
§11-13J-8. Total maximum aggregate tax credit amount.
(a) The amount of tax credits allowed under this article may
not exceed two million dollars in any state fiscal year.
(b) Applications for project certification shall be filed with
the West Virginia development office. The West Virginia
development office shall record the date each application is filed.
All complete and valid applications shall be considered for approval or disapproval in a timely manner by the neighborhood
assistance advisory board. The board may, in its discretion,
consider applications for approval or disapproval at special or
interim meetings for expedited processing.
(c) When the total amount of tax credits certified under this
article equals the maximum amount of tax credits allowed, as
specified in subsection (a) of this section, in any state fiscal
year, no further certifications shall be issued in that same fiscal
year. Upon approval of a project by the board, the director of the
West Virginia development office shall certify the approved project
unless certification is prohibited by the limitations and
requirements set forth in this article.
(d) All applications filed in any state fiscal year and not
certified during the state fiscal year in which they are filed
shall be null and void by operation of law on the last day of the
state fiscal year in which they are filed, and all applicants which
elect to seek certification of a project plan shall file anew on
and after the first day of the succeeding state fiscal year.
§11-13J-11. Audits and examinations; information sharing.
(a) The tax commissioner may, at his or her discretion,
perform joint audits or examinations with the West Virginia
development office or independently audit or examine the books,
records and other information, as appropriate, of any taxpayer or of any person, organization or entity which has filed an
application for certification of a project plan under this article,
or of any taxpayer which has asserted this credit on a tax return,
or of any person, organization or entity believed to have relevant
information.
(b) For purposes of joint audits, or any administrative or
judicial proceeding or procedure relating to any tax credit taken,
asserted or sought under this article, the tax commissioner may
share such tax information as the tax commissioner may deem
appropriate with the West Virginia development office,
notwithstanding the provisions of section four-a, article one of
this chapter or section five-d, article ten of said chapter, or any
other provision of this code to the contrary.
§11-13J-12. Program evaluation; expiration of credit; preservation
of entitlements.
On or before the thirtieth day of September, one thousand nine
hundred ninety-eight, the board shall secure an independent review
of the neighborhood investment program created by this article and
present the findings to the Legislature. Pursuant to this report,
and any independent evaluation that the Legislature or the joint
committee on government operations may wish to initiate, the joint
committee on government operations shall issue a recommendation to
the Legislature, not later than the first day of February, one thousand nine hundred ninety-nine, as to whether the program should
continue. Unless sooner terminated by law, the neighborhood
investment program act shall terminate on the first day of July,
one thousand nine hundred ninety-nine. No entitlement to the tax
credit under this article shall result from any contribution made
to any certified project after the first day of July, one thousand
nine hundred ninety-nine, and no credit shall be available to any
taxpayer for any contribution made after that date. Taxpayers
which have gained entitlement to the credit pursuant to eligible
contributions made to certified projects prior to the first day of
July, one thousand nine hundred ninety-nine, shall retain that
entitlement and apply the credit in due course pursuant to the
requirements and limitations of this article.