SENATE
HOUSE
JOINT
BILL STATUS
STATE LAW
REPORTS
EDUCATIONAL
CONTACT
home
home

Introduced Version - Originating in Committee Senate Bill 521 History

OTHER VERSIONS  -  Engrossed Version  |     |  Email
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 521

_________

(Originating in the Committee on Small Business;

reported March 1, 1994.)

_________




A BILL to repeal sections seven and thirty-two, article eleven, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections four, five-a, eight, twelve, thirteen, thirteen-a, thirteen-c, thirteen-k and fourteen, article ten of said chapter; to further amend said article by adding thereto sixteen new sections, designated sections one-a, one-b, five-t, six-a, six-b, seven-b, seven-c, eight-a, nine-b, eleven-a, eleven-b, eleven-c, twelve-a, thirteen-l, fourteen-c and fourteen-d; to amend and reenact sections three, seventeen, seventeen-a, nineteen, twenty and twenty- seven, article eleven of said chapter; to further amend said article by adding thereto a new section, designated section forty-three; and to amend and reenact section one, article ten-c, chapter thirty-eight of said code, all relating generally to tax procedures and administration, providing for taxpayer bill of rights; taxpayer problems resolution program; definitions; audits and investigations; disclosure of rights of taxpayers; notice of proposed assessment;
explanation of proposed assessment and appeal rights to accompany notice of proposed assessment and notice of assessment; abatement of interest attributable to errors and delays by tax division; abatement of any penalty or addition to tax attributable to written advice by tax commissioner; petition for reassessments; review of jeopardy levy or jeopardy assessment procedures; explanation of appeal rights to accompany administrative decision; explanation of collection remedies and taxpayer rights; agreements for payment of tax liability in installments; extension of time for paying tax; liens, release; subordination; foreclosure; administrative appeal of liens; levy and distraint; property exempt from levy; sale of seized property; authority to release levy and return property; reimbursement of bank and merchant charges due to erroneous levy; overpayments, credits and refunds; prompt payment of refunds of personal and corporate net income tax; imposition of estate tax; special lien for estate tax; discharge of nonresident decedent's real property in absence of ancillary administration; final accounting delayed until liability for tax determined; liability of personal representatives; recordation necessary for priority of liens in favor of state, political subdivision or municipality, procedures for administration and collection of taxes and fees administered under West Virginia tax procedure and administration act and as to such adding the "West Virginia Taxpayer Bill of Rights Act of 1992"; and specifying effective dates.
Be it enacted by the Legislature of West Virginia:
That sections seven and thirty-two, article eleven, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, be repealed; that sections four, five-a, eight, twelve, thirteen, thirteen-a, thirteen-c, thirteen-k and fourteen, article ten of said chapter be amended and reenacted; that said article be further amended by adding thereto sixteen new sections, designated sections one-a, one-b, five-t, six-a, six-b, seven-b, seven-c, eight-a, nine-b, eleven-a, eleven-b, eleven-c, twelve-a, thirteen-l, fourteen-c and fourteen-d; that sections three, seventeen, seventeen-a, nineteen, twenty and twenty-seven, article eleven of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section forty-three; and that section one, article ten-c, chapter thirty-eight of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 10. PROCEDURE AND ADMINISTRATION.

§11-10-1a. Taxpayer rights.

(a) There is hereby created a West Virginia taxpayer bill of rights to guarantee that the rights, privacy and property of West Virginia taxpayers are adequately safeguarded and protected during administration, collection and enforcement of taxes administered under this article.
(b) The West Virginia taxpayer bill of rights compiles, in one section, brief but comprehensive statements which explain, in simple nontechnical terms, the rights and obligations of the taxdivision of the department of tax and revenue and taxpayers. Rights afforded to taxpayers to assure that their privacy and property are safeguarded and protected during administration, collection and enforcement are available only insofar as they are implemented elsewhere in this article, this code or regulations of the tax commissioner. The rights so guaranteed West Virginia taxpayers in this article or in regulations of the tax commissioner are:
(1) The right to available information and prompt, accurate responses to questions and requests for tax assistance.
(2) The right to request assistance from a taxpayers' rights advocate of the tax division, who shall be responsible for facilitating the resolution of taxpayer complaints and problems not resolved through normal administrative channels within the tax division, including taxpayer complaints regarding unsatisfactory treatment by tax division employees. The taxpayers' rights advocate may issue a stay order if a taxpayer has suffered, or is about to suffer, irreparable loss as a result of action by the tax division.
(3) The right to be represented or advised by counsel or other qualified representatives at any time in administrative interactions with the tax division, the right to procedural safeguards with respect to recording of interviews during tax audits, preassessment conferences, hearings or collection activities conducted by tax division employees.
(4) The right to have audits, inspections of records and interviews conducted at a reasonable time and place except incriminal and internal investigations.
(5) The right to abatement of penalty attributable to any tax administered under this article, when taxpayer reasonably relies upon written advice furnished to the taxpayer by the tax division through authorized representatives in response to the taxpayer's specific written request which provided adequate and accurate information.
(6) The right to abatement of interest attributable to any taxes administered under this article, when taxpayer reasonably relies upon written advice furnished to the taxpayer by the tax division through authorized representatives in response to the taxpayer's specific written request which provided adequate and accurate information.
(7) The right to obtain simple, nontechnical statements which explain the procedures, remedies and rights available during audits, appeals and collection proceedings, including, but not limited to, the rights pursuant to this taxpayer bill of rights.
(8) The right to be provided with a narrative description which explains the basis of audit changes, proposed assessments, assessments and denials of claims for refund; identifies any amount of tax, interest, additions to tax or penalty due; and states the consequences of taxpayer's failure to comply with the notice.
(9) The right to be informed of impending collection actions which require sale or seizure of property, or freezing of assets, except jeopardy assessments and jeopardy levies, and the right toat least thirty days' notice in which to pay the liability or seek further review.
(10) The right to not have a jeopardy assessment issued unless delay will endanger collection and, after a jeopardy assessment is issued, the right to have an immediate review of the decision to issue a jeopardy assessment.
(11) The right to seek review, through formal or informal proceedings, of any adverse decision relating to a determination in the audit or collections processes, and the right to seek a reasonable administrative stay of enforcement actions while the taxpayer pursues other administrative remedies available under West Virginia law.
(12) The right to have the taxpayer's tax information kept confidential except as otherwise specified in this article.
(13) The right to procedures for retirement of tax obligations by installment payment agreements which recognize both the taxpayer's financial condition and the best interests of the state, provided the taxpayer gives accurate, current information and meets all other tax obligations when they are due.
(14) The right to procedures for requesting cancellation, release or modification of liens recorded by the tax division and for requesting that any lien which is filed in error be so noted on the lien release recorded by the tax division, in public notice, and in a notice to any credit agency at the taxpayer's request.
(15) The right to procedures which assure that theindividual employees of the tax division are not paid, evaluated or promoted on the basis of the amount of assessment or collections from taxpayers.
(16) The right to have uncontested timely filed claims for refund of taxes administered under this article promptly refunded to the taxpayer and to be paid interest when such refunds are not promptly paid.
(17) The right to an action at law, within the limitations of sovereign immunity, to recover damages against the state or the tax division for injury caused by the wrongful or negligent act or omission of a tax division officer or employee.
(18) The right of the taxpayer or the division, as the prevailing party in a judicial or administrative action brought or maintained without the support of justifiable issues of fact or law, to recover all costs of the administrative or judicial action, including reasonable attorney's fees, and of the tax division and taxpayer to settle such claims through negotiations.
(19) The right to have the division begin and complete its audits in a timely and expeditious manner after notification of intent to audit provided taxpayer, or taxpayer's representative, does not unreasonably delay or hinder the audit.
§11-10-1b. Taxpayer problem resolution program.

(a) General. -- A taxpayer problem resolution program shall be available to taxpayers to facilitate the prompt review and resolution of taxpayer complaints and problems which have not been addressed or remedied through normal administrative proceedings or operating procedures and to assure that taxpayerrights as safeguarded and protected during determination and collection processes.
(b) Taxpayers' rights advocate. -- The tax commissioner shall designate a taxpayers' rights advocate and adequate staff to administer the taxpayer problem resolution program.
(c) Taxpayer assistance orders. -- (1) The taxpayers' rights advocate may, with or without formal written request from the taxpayer, issue a taxpayer assistance order that suspends or stays actions or proposed actions by the tax division when a taxpayer suffers or is about to suffer a significant hardship as a result of a tax determination, collection or enforcement process.
(2) Relief or remedy may be granted by a taxpayer assistance order only as an extraordinary measure. The process shall not be used to contest the merits of a tax liability or as a substitute for informal protest procedures or normal administrative or judicial proceedings for the review of a tax assessment or collection action of denial of a claim for refund or credit.
(d) Tolling of period of limitations. -- (1) When the request for a taxpayer assistance order relates to an impending assessment and the request for such order is made within thirty days of the running of the period of limitations on assessments, the running of such period of limitations shall be tolled from the date of a taxpayer's request for a taxpayer assistance order until either the date the request is denied or the date specified in the taxpayer assistance order, whichever is applicable.
(2) When the request for a taxpayer assistance order relatesto an impending collection process and the request for such order is made within thirty days of the running of the period of limitations on collections, the running of such period of limitations shall be tolled from the date of a taxpayer's request for a taxpayer assistance order until either the date the request is denied or the date specified in the taxpayer assistance order, whichever is applicable.
§11-10-4. Definitions.

For the purpose of this article, the term:
(a) "Audit" means the examination of a taxpayer's return or return information as defined in section five-d of this article, or the inspection of a taxpayer's books, records, memoranda or accounts, for the purpose of determining liability for a tax (or fee) administered under this article.
(b) "Fee" or "fees" includes within the meaning thereof any fee expressly administered under this article, including additions, penalties and interest imposed by this article with respect to such fee or fees, unless the intention to give the same a more limited meaning is disclosed by the context in which the term is used.
(c) "Delegate" when used in the phrase "tax commissioner or his or her delegate" means any officer, employee or agency 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 function mentioned or described in the context; and when used with reference to any other officer of this state, it shall be similarly construed.
(d) "Feepayer" means any person required to file a return for any fee administered under this article or any person liable for the payment of any fee administered under this article.
(e) "Fiduciary" means a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person.
(f) "Officer or employee of this state" includes, but shall not be limited to, any former officer or employee of the state of West Virginia.
(g) "Person" includes, but is not limited to, any individual, firm, partnership, limited partnership, limited liability partnership, limit liability company, copartnership, joint adventure, association, corporation, municipal corporation, organization, receiver, estate, trust, guardian, executor, administrator and also any officer, employee or member of any of the foregoing who, as such officer, employee or member, is under a duty to perform or is responsible for the performance of an act prescribed by the provisions of this article or by the provisions of any other article or section of this code which imposes a tax (or fee) administered by the tax commissioner under this article, unless the intention to give a more limited or broader meaning is disclosed by the context of this article or any of the other articles of this code which impose taxes (or fees) administered by the tax commissioner under this article.
(h) "Secretary" or "secretary of tax and revenue". --
(1) "Secretary of tax and revenue" means the secretary of the West Virginia department of tax and revenue, personally, andshall not include any delegate of the secretary.
(2) "Secretary" means the secretary of the department of tax and revenue or his or her delegate.
(i) "State" means any state of the United States or the District of Columbia.
(j) "Tax" or "taxes" includes within the meaning thereof taxes specified in section three of this article, additions to tax, penalties and interest, unless the intention to give the same a more limited meaning is disclosed by the context in which the term is used. "Tax" also includes any other tax imposed by this code that is expressly administered under this article.
(k) "Tax commissioner" or "commissioner" means the tax commissioner of the state of West Virginia or his or her delegate.
(l) "Taxpayer" means any person required to file a return for any tax administered under this article or any person liable for the payment of any tax administered under this article.
(m) "Tax administered under this article" means any tax to which this article applies as set forth in section three of this article and includes any fee imposed by this code that is expressly administered under this article.
(n) "Tax division" means the division of the West Virginia department of tax and revenue previously known as the state tax department.
(o) "This code" means the code of West Virginia, one thousand nine hundred thirty-one, as amended.
(p) "This state" means the state of West Virginia.
§11-10-5a. Audits and investigations.

(a) In general. -- For the purpose of: (1) Ascertaining the correctness of any tax (or fee) return or assessment; (2) making an estimate of any person's liability for any tax (or fee) administered under this article; or (3) collecting any tax (or fee) due and payable under this article; and for the further purpose of conducting the hearings provided for in section nine or nine-a of this article, the tax commissioner shall have the power to examine or cause to be examined, by any agent or representative designated by the tax commissioner, any books, papers, records, memoranda, inventory or equipment bearing upon the matters required to be included in a required return, may make test checks of tax yield, and may require the attendance of the person rendering the return or the attendance of any other person having knowledge of the matters contained therein, and may take testimony and may require material proof, with power to administer oaths to such person or persons.
(b) Time and place of examination. -- The time and place of examination shall be such time and place as may be fixed by the tax commissioner and as are reasonable under the circumstances. The person being examined shall be given reasonable notice of the date, time and place of the examination and may request and be granted changes to the noticed date, time and place of the examination, as necessary.
(c) Restrictions on examination of taxpayer. -- No person shall be subject to unnecessary examination or investigation under this section.
(d) Procedures involving taxpayer interviews. --
(1) Recording of interviews by taxpayer. -- Any officer or employee of the tax division in connection with any in-person interview with any taxpayer (or feepayer) relating to the determination or collection of any tax (or fee) administered under this article shall, upon request of such person, allow such person or his or her representative to make an audio recording of such interview at his or her own expense and with his or her own equipment.
(2) Explanation of process. -- An officer or employee of the tax division shall at least ten days before the initial interview provide to the taxpayer (or feepayer):
(A) In the case of an in-person interview with the taxpayer (or feepayer) relating to the determination of any tax (or fee), an explanation of the audit process and the taxpayer's (or feepayer's) rights under such process; or
(B) In the case of an in-person interview with the taxpayer (or feepayer) relating to the collection of any tax (or fee), an explanation of the collection process and the taxpayer's (or feepayer's) rights under such process.
(C) Right of consultation. -- If the taxpayer (or feepayer) clearly states to an officer or employee of the tax division during any interview (other than an interview initiated by a subpoena or subpoena duces tecum issued under section five-b of this article) that the taxpayer wishes to consult with an attorney, certified public accountant or other person permitted to represent the taxpayer before the United States InternalRevenue Service, such officer or employee shall suspend such interview whether or not the taxpayer (or feepayer) may have answered one or more questions.
(e) Representatives holding power of attorney. -- Any attorney, certified public accountant or other tax practitioner who has a written power of attorney executed by the taxpayer (or feepayer) may be authorized by such person to represent the taxpayer (or feepayer) in any interview under this section. An officer or employee of the tax division may not require the taxpayer (or feepayer) to accompany the representative in the absence of a subpoena or subpoena duces tecum issued to the taxpayer (or feepayer) under section five-b of this article. This subsection shall not be construed as authorizing anyone to engage in the unauthorized practice of law before the tax commissioner.
(f) Criminal investigations exception. -- Subsections (d) and (e) of this section shall not apply to criminal investigations or investigations relating to the integrity of any officer or employee of the tax division.
§11-10-5t. Disclosure of rights of taxpayers.

(a) In general. -- The commissioner shall, as soon as practicable, prepare a brief but comprehensive statement in simple and nontechnical language which explains:
(1) The rights of the taxpayer (or feepayer) and the obligations of the tax commissioner during an audit;
(2) The procedures by which a taxpayer (or feepayer) may appeal any adverse decision of the tax commissioner;
(3) The procedures for filing and prosecuting claims for refund and for filing taxpayer complaints; and
(4) The procedures which the tax commissioner may use in enforcing the taxes and fees administered under this article (including assessment, jeopardy assessment, levy and distraint, and enforcement of liens).
(b) This statement shall be provided to taxpayers (or feepayers) with the initial notice of audit, the notice of proposed assessment, the notice of assessment; and prior to initiating collection under section eleven, twelve or thirteen of this article. The tax commissioner shall take such actions as the commissioner deems appropriate to ensure that such distribution does not result in multiple statements being sent to any one taxpayer (or feepayer).
§11-10-6a. Notice of proposed assessment.

(a) In general. -- If the tax commissioner determines that there is a deficiency with respect to any tax (or fee) administered under this article, then, except as provided in subsection (c) of this section, at least thirty days prior to making an assessment under section seven of this article, the tax commissioner shall notify the taxpayer (or feepayer) in writing of the amount of the deficiency and that the commissioner proposes to make an assessment. This notice shall be served by regular mail or by personal service.
(b) Adjustments to proposed assessment. -- The tax commissioner shall consider all returns, payments, other information and documentation submitted by the taxpayer inresponse to the notice of proposed assessment and shall make any adjustment(s) that the commissioner deems to be appropriate to the amount of the proposed assessment.
(c) Exceptions. -- The provisions of this section shall not apply:
(1) To assessment of deficiencies due to mathematical or clerical errors, the procedure for which is provided in subsection (a), section six of this article;
(2) To collection of the balance due shown on a mathematically correct return filed by the taxpayer (or feepayer), the procedure for which is provided in subsection (b), section six of this article;
(3) To jeopardy assessments; or
(4) To amended assessments.
(d) Suspension of running of period for issuance of assessment. -- Issuance of a notice of proposed assessment within sixty days before expiration of the period prescribed in section fifteen of this article for issuance of a notice of assessment, shall automatically extend for ninety days the period within which notice of assessment may be issued.
§11-10-6b. Explanation of proposed assessment and appeal rights to accompany notice of proposed assessment and notice of assessment.

General rule. -- Whenever a notice of proposed assessment is given under section six-a of this article, or notice of assessment is given under section seven of this article, the tax commissioner shall provide to the taxpayer (or feepayer):
(1) A written explanation of the reason(s) for the notice and the reasons for imposition of interest, additions to tax (or fee) or penalties;
(2) A written explanation of the taxpayer's (or feepayer's) right to protest the notice, including the steps required to request administrative review by the tax commissioner.
(3) A written explanation of the collection remedies available to the tax commissioner if the taxpayer does not file a timely petition for reassessment and does not timely pay an assessment.
§11-10-7b. Abatement of interest attributable to errors and delays by tax division.

(a) In general. -- In the case of any interest due on:
(1) Any deficiency attributable, in whole or in part, to any error or delay determined by the tax commissioner to have been caused by an officer or employee of the tax division (acting in his or her official capacity) in performing a ministerial act; or
(2) Any payment of any tax (or fee) assessed under section seven of this article to the extent that any error or delay in such payment is determined by the tax commissioner to be attributable to an officer or employee of the tax division (acting in his or her official capacity) being erroneous or dilatory in performing a ministerial act, the tax commissioner may abate all or any part of such interest for any period. For purposes of the preceding sentence, an error or delay shall be taken into account only if no significant aspect of such error or delay can be attributable to the taxpayer (or feepayer) involved,and after the tax division has contacted the taxpayer (or feepayer) in writing with respect to such deficiency or payment.
(b) Interest abated with respect to erroneous refund check. -- The tax commissioner may abate the interest that accrued under section seventeen of this article on any erroneous refund until the date demand for repayment is made, unless the taxpayer (or a related party) has in any way caused such erroneous refund.
§11-10-7c. Abatement of any penalty or addition to tax attributable to written advice by tax commissioner.

(a) In general. -- The tax commissioner shall abate any portion of any penalty or addition to tax (or fee) attributable to erroneous advice furnished to the taxpayer (or feepayer) in writing by an officer or employee of the tax division, acting in such officer's or employee's official capacity.
(b) Limitations. -- (1) Subsection (a) of this section shall apply only if the tax commissioner finds that all of the following conditions are satisfied:
(1) The written advice was reasonably relied upon by the taxpayer (or feepayer) and was in response to a specific written request of the taxpayer (or feepayer); and
(2) The portion of the penalty or addition to tax (or fee) did not result from a failure by the taxpayer (or feepayer) to provide adequate or accurate information.
(c) Any person seeking relief under this section shall file with the commissioner all of the following:
(1) A copy of the person's written request to the commissioner and a copy of the commissioner's written advice;
(2) A statement signed under penalty of perjury setting forth the facts on which the claim is based;
(3) Any other information which the commissioner may require.
§11-10-8. Notice of assessment; petition for reassessment within sixty days; finality of assessment; payment of assessment; effective date.

(a) Notice of assessment. -- The tax commissioner shall give the taxpayer written notice of any assessment, or any 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 shall not be subject to either administrative or judicial review under the provisions of section nine or nine-a of this article and section ten of this article unless the taxpayer to whom a notice of assessment, or notice of 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 of this article) either of the following:
(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 taxpayer's duly authorized agent having knowledge of the facts, setting forth with particularity the items of the assessment objected to, together with the reason for such objections; or
(2) Payment of assessment. -- Personally, or by certifiedmail, remits to the tax commissioner the total amount of the assessment, or the 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. -- Except for jeopardy assessments, the amount of an assessment, or an amended or supplemental assessment, shall be due and payable on the day following the date upon which the assessment, or the amended or supplemental assessment, becomes final. Payment of the amount of the assessment, or the amended or supplemental assessment, as provided in subdivision (2) above within sixty days after service of notice of such assessment, or such amended or supplemental assessment, shall not prohibit or otherwise bar the taxpayer from filing a claim for refund, or credit, under the provisions of section fourteen of this article within two years after the date the tax was paid.
(c) Payment of assessment after petition for reassessment filed. -- A taxpayer who has timely filed a petition for reassessment may, at any time prior to issuance of the administrative decision under section nine or nine-a of this article, pay under protest the amount of the assessment, or the amended or supplemental assessment, including any additions to tax or penalties that may have been assessed, and the amount of interest due. 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 hascommenced 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 amended in the year one thousand nine hundred eighty-six, shall apply to all assessments (including amended and supplemental assessments) which are issued 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) This section, as amended in the year one thousand nine hundred ninety-four, shall take effect on the first day of July of such year.
§11-10-8a. Review of jeopardy levy or jeopardy assessment procedures.

(a) Administrative review. --
(1) Information to taxpayer. -- At the time a jeopardy assessment is made under subsection (b), section seven of this article, or a jeopardy levy is made under subsection (a), section thirteen of this article, the tax commissioner shall provide the taxpayer (or feepayer) with a written statement of the information upon which the tax commissioner relies in making the jeopardy assessment or jeopardy levy.
(2) Request for review. -- Within thirty days after the dayon which the taxpayer (or feepayer) is furnished the written statement described in subdivision (1) of this subsection, the taxpayer (or feepayer) may request the tax commissioner to review the action taken and redetermine whether or not collection of the tax (or fee) will be jeopardized by delay.
(3) Redetermination by tax commissioner. -- After a request for review is made under subdivision (2) of this subsection, the tax commissioner shall redetermine:
(A) Whether or not:
(i) The making of the jeopardy assessment under section seven is reasonable under the circumstances; and
(ii) The amount of the jeopardy assessment is appropriate under the circumstances; or
(B) Whether or not the making of the jeopardy levy is reasonable under the circumstances.
(b) Independent review. --
(1) Proceedings permitted. -- Within ninety days after the earlier of:
(A) The day the tax commissioner notifies the taxpayer (or feepayer) of the tax commissioner's determination described in subdivision (3), subsection (a)of this section; or
(B) The sixteenth day after the request described in subdivision (2), subsection (a) of this section was made, the taxpayer (or feepayer) may appeal directly to the secretary of tax and revenue for a determination under this subsection.
(2) Determination by secretary of tax and revenue. -- Within twenty days after an appeal is filed under subdivision (1) ofthis subsection, the secretary of tax and revenue shall determine:
(A) Whether or not: (i) The making of the jeopardy assessment under section seven of this article is reasonable under the circumstances; and (ii) the amount so assessed or demanded as a result of the action taken is appropriate under the circumstances; or
(B) Whether or not the making of a jeopardy levy is reasonable under the circumstances.
If the secretary determines the proper service was not made on the tax commissioner, within five days after the date the appeal was filed with the secretary, then the running of the twenty-day period set forth in the preceding sentence shall not begin before the day on which proper service was made on the tax commissioner.
(3) Order of secretary of tax and revenue. -- (A) If the secretary of tax and revenue determines that the making of a jeopardy assessment is unreasonable or that the amount of the jeopardy assessment is inappropriate, the secretary may order the tax commissioner to abate the jeopardy assessment or to take such other action with respect to the jeopardy assessment as the secretary finds appropriate.
(B) If the secretary determines that the making of a jeopardy levy is unreasonable, the secretary may order the tax commissioner to release the levy or to take such other action as the secretary finds appropriate.
(c) Extension of twenty-day period where taxpayer sorequests. -- If the taxpayer (or feepayer) requests an extension of the twenty-day period set forth in subdivision (2), subsection (b) of this section and establishes reasonable grounds why such extension should be granted, the secretary of tax and revenue may grant an extension of not more than forty additional days.
(d) Computation of days. -- For purposes of this section, Saturday, Sunday or a legal holiday in this state shall not be counted as the last day of any period.
(e) Burden of proof. --
(1) Reasonableness of levy, termination of jeopardy assessment. -- In a proceeding under subsection (b) of this section involving the issue of whether the making of a jeopardy levy or the making of a jeopardy assessment is reasonable under the circumstances, the burden of proof in respect to such issue shall be upon the tax commissioner.
(2) Reasonableness of amount of assessment. -- In a proceeding under subsection (b) of this section involving the issue of whether the amount of the jeopardy assessment is appropriate under the circumstances, the tax commissioner shall provide a written statement which contains any information with respect to which his or her determination of the amount assessed was based, but the burden of proof in respect of such issue shall be upon the taxpayer.
§11-10-9b. Explanation of appeal rights to accompany administrative decision.

(a) Whenever an administrative decision is issued under section nine of this article, the tax commissioner shall provideto the taxpayer:
(1) A written explanation of the steps required to perfect an appeal of the administrative decision.
(2) A written explanation of the collection remedies available to the tax commissioner if taxpayer does not perfect an appeal and does not pay timely the amount due under the administrative decision.
(b) The failure of the tax commissioner to comply with a provision of this section shall neither excuse a taxpayer from payment of any taxes nor cure any procedural defect in a taxpayer's case, provided the commissioner is able to demonstrate that such provision generally is enforced or implemented by the commissioner.
§11-10-11a. Explanation of collection remedies and taxpayer rights.

(a) Prior to initiating collection under section eleven, twelve or thirteen of this article, the tax commissioner shall provide to the taxpayer a written explanation of the collection actions that may be taken, why such action may be taken and taxpayer's rights.
(b) The failure of the tax commissioner to comply with a provision of this section shall neither excuse a taxpayer from payment of any taxes nor cure any procedural defect in a taxpayer's case, provided the commissioner is able to demonstrate that such provision generally is enforced or implemented by the commissioner.
§11-10-11b. Agreements for payment of tax liability in
installments.
(a) Authorization of agreements. -- The tax commissioner is authorized to enter into written agreements with any taxpayer under which such taxpayer is allowed to satisfy liability for payment of any tax (or fee) administered under this article in installment payments if the tax commissioner determines that such agreement will facilitate collection of such liability.
(b) Extent to which agreements remain in effect. --
(1) In general. -- Except as otherwise provided in this subsection, any agreement entered into by the tax commissioner under subsection (a) of this section shall remain in effect for the term of the agreement.
(2) Inadequate information or jeopardy. -- The tax commissioner may terminate any agreement entered into by the commissioner under subsection (a) of this section if:
(A) Information which the taxpayer provided to the tax commissioner prior to the date such agreement was entered into was inaccurate or incomplete; or
(B) The tax commissioner believes that collection of any tax to which an agreement under this section relates is in jeopardy.
(3) Subsequent change in financial condition. --
(A) In general. -- If the tax commissioner makes a determination that the financial condition of a taxpayer with whom the tax commissioner has entered into an agreement under subsection (a) of this section has significantly changed, the tax commissioner may alter, modify or terminate such agreement.
(B) Notice. -- Action may be taken by the tax commissionerunder paragraph (A) of this subdivision only if:
(i) Notice of such determination is provided to the taxpayer no later than thirty days prior to the date of such action; and
(ii) Such notice includes the reasons why the tax commissioner believes a significant change in the financial condition of the taxpayer has occurred.
(4) Failure to pay an installment or any other tax liability when due or to provide requested financial information. -- The tax commissioner may alter, modify or terminate an agreement entered into under subsection (a) of this section in the case of the failure of the taxpayer:
(A) To pay any installment at the time such installment payment is due under such agreement;
(B) To pay any other tax liability at the time such liability is due; or
(C) To provide a financial condition update as requested by the tax commissioner.
§11-10-11c. Extension of time for paying tax.

(a) Amount determined on return. -- Except as listed below, the tax commissioner may extend the time for payment of the amount of the tax (or fee) shown, or required to be shown, on any return required by any article or section of this code administered under this article (or any periodic installment payment), for a reasonable period not to exceed six months from the date fixed for payment thereof.
(b) Amount determined as deficiency. -- Under regulations prescribed by the tax commissioner, the tax commissioner mayextend the time for the payment of the amount determined as a deficiency of the taxes (or fees) administered by this article for a period not to exceed eighteen months from the date fixed for payment of the deficiency. In exceptional cases, a further period of time not to exceed twelve months may be granted. An extension under this subsection may be granted only when it is shown to the satisfaction of the tax commissioner that payment of a deficiency on the date fixed for the payment thereof will result in undue hardship to the taxpayer.
(c) No extension for certain deficiencies. -- No extension shall be granted under this section for any deficiency in payment of trust fund taxes (or fees) actually collected by taxpayer (or feepayer), or for payment if the deficiency is due to negligence, to intentional disregard of rules and regulations or to fraud with intent to evade tax.
(d) Claims in cases of bankruptcy or in receivership proceedings. -- Extensions of time for payment of any portion of a claim for any tax (or fee) administered under this article allowed under Title 11 of the United States Code or in receivership proceedings, which is unpaid, may be had in the same manner and subject to the same provisions and limitations as provided in subsection (c) of this section with respect to a deficiency in tax.
§11-10-12. Liens, release; subordination; foreclosure.

(a) General. -- Any tax, additions to tax, penalties or interest due and payable under this article or any of the other articles of this chapter to which this article is applicableshall be a debt due this state. It shall be a personal obligation of the taxpayer and shall be a lien upon the real and personal property of the taxpayer: Provided, That such lien shall not attach to personal property of the taxpayer which is sold to a bona fide purchaser for valuable consideration without notice of the existence of the lien. A lien created by this section, when recorded, shall have priority over all other subsequently recorded liens authorized by this code.
(b) Duration of lien. -- The lien created by this section shall continue until the liability for the tax, additions to tax, penalties and interest is satisfied or upon the expiration of ten years from the date the tax, additions to tax, penalties and interest are due and payable under section eight of this article or the date the tax return is filed, whichever is later.
(c) Recordation. -- The lien created by this section shall be subject to the restrictions and conditions embodied in article ten-c, chapter thirty-eight of this code and any amendment made or which may hereafter be made thereto: Provided, That the notice of lien shall indicate the date the tax, additions to tax, penalties and interest are due and payable under section eight of this article or the date the tax return was filed.
(d) Release or subordination. -- The tax commissioner, pursuant to rules or regulations prescribed by him, may issue his certificate of release of any lien created pursuant to this section when the debt is adequately secured by bond or other security. He shall issue his certificate of release when the debt secured has been satisfied. The certificate of releaseshall be issued in duplicate. One copy shall be forwarded to the taxpayer, and the other copy shall be forwarded to the clerk of the county commission of the county wherein the lien is recorded. The clerk of the county commission shall record the release without payment of any fee and such recordation shall constitute a release and full discharge of the lien. The tax commissioner may issue his certificate of release of any such lien as to all or any part of the property subject to the lien, or may subordinate such lien to any other lien or interest, but only if there is paid to the state an amount not less than the value of the interest of the state in such property, or if the interest of the state in such property has no value.
(e) Foreclosure. -- The tax commissioner may enforce any lien created and recorded under this section, against any property subject to such lien by civil action in the circuit court of the county wherein such property is located, in order to subject such property to the payment of the tax secured by such lien. All persons having liens upon or having any interest in the property shall be made parties to such action. The court may appoint a receiver or commissioner who shall ascertain and report all liens, claims and interests in and upon the property, the validity, amount and priority of each. The court shall, after notice to all parties, proceed to adjudicate all matters involved therein, shall determine the validity, amount and priorities of all liens, claims and interests in and upon the property and shall decree a sale of such property by the sheriff or any commissioner to whom the action is referred, and shall decreedistribution of the proceeds of such sale according to the findings of the court in respect to the interests of the parties.
(f) Discharge of lien. -- A sale of property against which the state has a lien under this section, made pursuant to an instrument creating a lien on such property, or made pursuant to a statutory lien on such property, or made pursuant to a judicial order to enforce any judgment in any civil action, shall be made subject to and without disturbing the state tax lien if the state tax lien was recorded more than thirty days before such sale, unless:
(1) The tax commissioner is made a party to such civil action; or
(2) The tax commissioner consents to such sale. In order to consent to the sale, the tax commissioner shall be given written notice which shall contain the name of the owner of the property, the social security number or federal employer identification number of the owner, a complete description of the property to be sold, and the amount of the lien to be discharged by such sale.
(g) Third party liability. -- The date upon which a lien created by this section establishes third party liability is as follows:
(1) For officers, responsible employees and members of any person which is a taxpayer and against which a lien is created by this section, on the date the lien arises against the taxpayer;
(2) For the successor of any such taxpayer against which a lien is created by this section, on the date such person becomes the successor; and
(3) For the nominee of any taxpayer against which a lien is created by this section, on the date such person becomes the nominee.
(h) Procedural rules. -- The tax commissioner may, in accordance with article three, chapter twenty-nine-a of this code, promulgate procedural rules to provide for the administrative appeal of state tax liens established under this section.
§11-10-12a. Administrative appeal of liens.

(a) In general. -- In such form and at such time as the tax commissioner shall prescribe by regulations, any person shall be allowed to appeal to the tax commissioner after the filing of a notice of lien under this article on the property or the rights to property of such person for a release of such lien alleging an error in the filing of the notice of such lien.
(b) Certificate of release. -- If the tax commissioner determines that the filing of the notice of any lien was erroneous, the tax commissioner shall within fourteen days after such determination issue a certificate of release of such lien and shall include in such certificate a statement that such filing was erroneous.
§11-10-13. Levy and distraint.

(a) Authority of tax commissioner. -- If any tax (or fee) administered under this article is shown to be due on a return, it is required to be paid at the time the return is filed and if any portion of tax (or fee) is not so paid, or if an assessment of tax (or fee) is made by the tax commissioner and noticethereof is given as required by this article and such assessment has become final and is not subject to administrative or judicial review, then, if any person liable to pay any tax (or fee) administered under this article neglects or refuses to pay the same within thirty days after notice and demand, it shall be lawful for the tax commissioner (or his delegate) to collect such tax (or fee) (and such further sum as is sufficient to cover the expense of the levy) by levy upon all property and rights to property belonging to such person or on which there is a lien provided in this article, or any article administered under this article, for payment of the tax (or fee). If the tax commissioner makes a finding that the collection of such tax (or fee) is in jeopardy, notice and demand for immediate payment of such tax (or fee) may be given by the tax commissioner (or his delegate) and, upon failure or refusal to pay such tax (or fee), collection thereof by levy shall be lawful without regard to the thirty-day period provided in this section.
(b) "Levy" defined. -- The term "levy" as used in this section includes the power of distraint and seizure by any means. Except as otherwise provided in this section, a levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the tax commissioner, or his delegate, may levy upon property or rights to property, he may seize and sell such property or right to property, whether such property be real or personal, tangible or intangible.
(c) Successive seizures. -- Whenever any property or a right to property upon which levy has been made by virtue of subsection(a) of this section is not sufficient to satisfy the claim of the state of West Virginia for which levy is made, the tax commissioner may, thereafter, and as often as may be necessary, proceed to levy in like manner upon any other property liable to levy of the person against whom such claim exists, until the amount due from him, together with all expenses, is fully paid.
(d) Distress warrant. -- The tax commissioner may issue a distress warrant to the sheriff of any county of this state, or to any officer or employee of the state tax division, commanding him to levy upon and sell any such property or rights to property subject to levy in accordance with the provisions of this article. A distress warrant shall be executed within sixty days from the date the warrant was issued. The sheriff shall return the warrant and any money collected to the tax commissioner within sixty-five days from the date the warrant was issued. The provisions of articles four, five and six, chapter thirty-eight of this code shall not apply to the issuance or execution of any distress warrant issued under this subsection.
(e) Requirement of notice before levy. --
(1) In general. -- Levy may be made under subsection (a) of this section upon the salary or wages or other property or rights to property of any person with respect to any unpaid tax (or fee) only after the tax commissioner has notified such person in writing of the commissioner's intention to make such levy.
(2) Thirty day requirement. -- The notice required under subdivision (1) of this subsection shall be: (A) Given in person; or (B) left at the dwelling or usual place of business ofsuch person; or (C) sent by certified mail to such person's last known address, no less than thirty days prior to the day of levy: Provided, That no notice need be given if the tax commissioner has made a finding under the last sentence of subsection (a) of this section that collection of the tax (or fee) is in jeopardy.
(3) Information included with notice. -- The notice required under subdivision (1) of this subsection shall include a brief statement which sets forth in simple and nontechnical terms:
(A) The provisions of this article relating to levy and sale of property;
(B) The procedures applicable to the levy and sale of property under this article;
(C) The administrative appeals available with respect to such levy and sale and the procedures relating to such appeals;
(D) The alternatives available to taxpayers (or feepayers) which could prevent levy on the property including installment payment agreements under section eleven-b of this article;
(E) The provisions of this article relating to the redemption of property; and
(F) The procedures applicable to the redemption of property and the release of a lien on property under this article.
(f) Continuing levy on salary and wages. -- The effect of a levy on salary or wages payable to or received by a taxpayer (or feepayer) shall be continuous from the date such levy is first made until such levy is released under section thirteen-k of this article.
(g) Uneconomical levy. -- No levy may be made on anyproperty if the amount of expenses which the tax commissioner estimates at the time of levy would be incurred by the tax commissioner with respect to the levy and sale of the property exceeds the fair market value of such property at the time of levy.
(h) Levy on appearance date of subpoena. -- (1) In general. -- No levy may be made on the property of any person on any day on which such person (or officer or employee of such person) is required to appear in response to a subpoena issued by the tax commissioner for the purpose of collecting any underpayment of a tax (or fee) administered under this article.
(2) No application in case of jeopardy. -- This subsection shall not apply if the tax commissioner finds that the collection of the tax (or fee) is in jeopardy.
§11-10-13a. Property exempt from levy.

(a) Enumeration. -- There shall be exempt from levy:
(1) Wearing apparel and school books. -- Items of wearing apparel and school books that are necessary for the taxpayer (or feepayer) or for members of his or her family.
(2) Fuel, provisions, furniture and personal effects. -- If the taxpayer (or feepayer) is the head of a family, so much of the fuel, provisions, furniture and personal effects in his or her household and of the arms for personal use, livestock and poultry of the taxpayer (or feepayer) as does not exceed two thousand dollars in value; if the taxpayer (or feepayer) is an individual who is not the head of a household, this exemption shall not exceed two thousand dollars.
(3) Books and tools of a trade, business or profession. -- So many of the books and tools necessary for the trade, business or profession of the taxpayer (or feepayer) as do not exceed in the aggregate one thousand one hundred dollars in value.
(4) Unemployment benefits. -- Any amount payable to an individual with respect to his or her unemployment (including any portion thereof payable with respect to dependents) under an unemployment compensation law of the United States or of this state or any other state.
(5) Undelivered mail. -- Mail, addressed to any person, which has not been delivered to the addressee.
(6) Annuity and pension payments. -- Annuity or pension payments under any pension or retirement plan, including social security payments.
(7) Workers' compensation. -- Any amount payable to an individual as workers' compensation (including any portion thereof payable with respect to dependents) under a workers' compensation law of the United States or of this state or any other state.
(8) Judgments for support of minor children. -- If the taxpayer is required by a judgment of a court of competent jurisdiction, entered prior to the date of levy, to contribute to the support of his or her other minor children, so much of his or her salary, wages or other income as is necessary to comply with such judgment.
(9) Public assistance. -- Any amount payable from a public assistance or relief fund created under the law of the UnitedStates or of this state or of any other state.
(10) Minimum exemption for wages, salary, and other income. -- Any amount payable or received by an individual as wages or salary for services provided by an employee to his or her employer, or as income derived from other sources, during any period, to the extent that the total of such amounts payable or received by him or her during such period does not exceed the applicable exempt amount determined under subsection (d) of this section.
(11) Certain service-connected disability payments. -- Any amount payable to an individual as a service-connected (within the meaning of Section 101(16) of Title 38, United States Code) disability benefit under:
(A) Subchapter II, III, IV, V or VI of chapter 11 of such Title 38; or
(B) Chapter 13, 21, 23, 31, 32, 34, 35, 37 or 39 of such Title 38.
(12) Assistance under job training partnership act. -- Any amount payable to a participant under the Job Training Partnership Act (29 U.S.C. 1501 et seq.) from funds appropriated pursuant to such act.
(13) Homestead. -- If the taxpayer (or feepayer) owns a homestead located in this state, the first five thousand dollars thereof shall be exempt from levy.
(b) Appraisal. -- The officer seizing property of the type described in subsection (a) of this section shall appraise and set aside to the owner the amount of such property declared to beexempt. If the taxpayer objects at the time of the seizure to the valuation fixed by the officer making the seizure, the tax commissioner shall summon three disinterested individuals who shall make the valuation.
(c) No other property exempt. -- Notwithstanding any other law of this state, no property or rights to property shall be exempt from levy other than property specifically made exempt by subsection (a) of this section.
(d) Exempt amount of wages, salary, or other income. --
(1) Individuals on weekly basis. -- In the case of an individual who is paid or receives all of his or her wages, salary and other income on a weekly basis, the amount of the wages, salary and other income payable to or receivable by the person during any week which is exempt from levy under subdivision (10), subsection (a) of this section shall be:
(A) Thirty times the state minimum wage per hour; plus
(B) Twenty-five dollars for each additional dependent of the taxpayer (or feepayer).
(2) Individual on basis other than weekly. -- In the case of any individual not described in subdivision (1)of this subsection, the amount of the wages, salary and other income payable to or received by him or her during any applicable pay period or other fiscal period (as determined under regulations prescribed by the tax commissioner) which is exempt under subdivision (10), subsection (a) of this section shall be an amount (determined under such regulations) which as nearly as possible will result in the same total exemptions from such levyfor such individual over a period of time as he or she would have under subdivision (1) of this subsection if (during such period of time) he or she were paid or received such wages, salary and other income on a regular weekly basis.
§11-10-13c. Sale of seized property.

(a) Notice of seizure. -- As soon as practicable after seizure of property, notice in writing shall be given by the tax commissioner to the owner of the property (or, in the case of personal property, the possessor thereof), or shall be left at his usual place of abode or business if he has such within the county where the seizure is made. If the owner cannot be readily located, or has no dwelling or place of business within such county, the notice may be mailed to his last known address. Such notice shall specify the sum demanded and shall contain, in the case of personal property, an account of the property seized and, in the case of real property, a description with reasonable certainty of the property seized.
(b) Notice of sale. -- The tax commissioner may sell any property seized under section thirteen of this article. As soon as practicable after the seizure of the property, the tax commissioner shall give notice to the owner, in the manner prescribed in subsection (a) of this section, and shall cause a notice of sale to be published as a Class II legal advertisement in some newspaper published or generally circulated within the county wherein such seizure is made, or the county where the property is located, the last date of publication being not less than five days prior to sale, this notice shall identify theproperty to be sold and the date, time, place, manner and conditions of the sale thereof, all of which shall be at the discretion of the tax commissioner. The sale shall be conducted by public auction or by public sale under sealed bids. Before the sale, the tax commissioner may determine a minimum price for which the property shall be sold, and if no person offers for such property at the sale, the amount of the minimum price, the property shall be declared to be purchased at such price for the state of West Virginia; otherwise the property shall be declared to be sold to the highest bidder. In determining the minimum price, the tax commissioner shall take into account the expense of making the levy and sale.
(c) Sale of indivisible property. -- If any property liable to levy is not divisible, so as to enable the tax commissioner by sale of a part thereof to raise the whole amount of the tax and expense of making the levy and sale, the whole of such property shall be sold. However, where the property sold is co-owned or jointly owned by the taxpayer and an innocent third party, the proceeds of sale shall be divided, based on the respective interests of the persons owning the property immediately prior to the levy and sale, and the proceeds attributable to the interest of the innocent owner or owners shall be distributed to them: Provided, That where the property to be sold is so co-owned or jointly owned by an innocent third party, having no delinquent tax liability attempted to be collected under such levy and sale, such innocent party may petition the circuit court of the county in which the property is located for relief, includingpostponement of the sale, in order that the court can determine if the property can be partitioned, so as to avoid sale of the innocent party's portion or grant and afford other relief by the court protective of the rights and interests of such innocent party.
(d) Time and place of sale. -- The time of sale shall not be less than ten nor more than forty days from the time of giving public notice under subsection (b) of this section. The place of sale shall be within the county in which the property is seized, except by special order of the tax commissioner.
(e) Manner and conditions of sale. --
(1) In general. --
(A) Determinations relating to minimum price. -- Before the sale of property seized by levy, the tax commissioner shall determine:
(i) A minimum price for which such property shall be sold (taking into account the expense of making the levy and conducting the sale); and
(ii) Whether, on the basis of criteria prescribed by the tax commissioner, the purchase of such property by the state of West Virginia at such minimum price would be in the best interest of the state.
(B) Sale to highest bidder at or above minimum price. -- If, at the sale, one or more persons offer to purchase such property for not less than the amount of the minimum price, the property shall be declared sold to the highest bidder.
(C) Property deemed sold to state at minimum price incertain cases. -- If no person offers the amount of the minimum price for such property at the sale and the tax commissioner has determined that the purchase of such property by the state would be in the best interest of the state, the property shall be declared to be sold to the state at such minimum price.
(D) Release to owner in other cases. -- If, at the sale, the property is not declared sold under paragraph (B) or (C) of this subsection, the property shall be released to the owner thereof and the expense of the levy and sale shall be added to the amount of tax for the collection of which the levy was made. Any property released under this subparagraph shall remain subject to any lien imposed by this article.
(2) Additional rules applicable to sale. -- The tax commissioner shall prescribe the manner and other conditions of the sale of property seized by levy. If one or more alternative methods or conditions are permitted by regulations, the tax commissioner shall select the alternatives applicable to the sale. The tax commissioner shall provide:
(A) That the sale shall not be conducted in any manner other than:
(i) By public auction; or
(ii) By public sale under sealed bids.
(B) In the case of the seizure of several items of property, whether such items shall be offered separately, in groups or in the aggregate; and whether such property shall be offered both separately (or in groups) and in the aggregate, and sold under whichever method produces the highest aggregate amount.
(C) Whether the announcement of the minimum price determined by the tax commissioner may be delayed until the receipt of the highest bid.
(D) Whether payment in full shall be required at the time of acceptance of a bid, or whether a part of such payment may be deferred for such period (not to exceed one month) as may be determined by the tax commissioner to be appropriate.
(E) The extent to which methods (including advertising) in addition to those prescribed in subsection (b) of this section may be used in giving notice of the sale.
(F) Under what circumstances the tax commissioner may adjourn the sale from time to time (but such adjournments shall not be for a period to exceed, in all, one month).
(3) Payment of amount bid. -- If payment in full is required at the time of acceptance of a bid and is not then and there paid, the tax commissioner shall forthwith proceed to again sell the property in the manner provided in this subsection. If the conditions of the sale permit part of the payment to be deferred, and if such part is not paid within the prescribed period, suit may be instituted against the purchaser for the purchase price or such part thereof as has not been paid, together with interest at the rate of eight percent per annum from the date of the sale; or, in the discretion of the tax commissioner, the sale may be declared by the tax commissioner to be null and void for failure to make full payment of the purchase price and the property may again be advertised and sold as provided in subsections (b) and (c) of this section. In the event of such readvertisement andsale, any new purchaser shall receive such property or rights to property, free and clear of any claim or right of the former defaulting purchaser, of any nature whatsoever, and the amount paid upon the bid price by such defaulting purchaser shall be forfeited.
(f) Right to request sale of seized property within sixty days. -- The owner of any property seized by levy may request that the tax commissioner sell such property within sixty days after such request (or within such longer period as may be specified by the owner). The tax commissioner shall comply with such request unless the tax commissioner determines (and notifies the owner within such period) that such compliance would not be in the best interests of the state.
§11-10-13k. Authority to release levy and return property.

(a) Release of levy. --
(1) In general. -- The tax commissioner shall release the levy upon all or part of the property or rights to property levied upon and shall promptly notify the person upon whom such levy was made (if any) that such levy has been released if:
(A) The liability for which such levy was made is satisfied or becomes unenforceable by reason of lapse of time;
(B) The tax commissioner determines that release of such levy will facilitate the collection of the liability;
(C) The taxpayer (or feepayer) has entered into an agreement under section eleven-b of this article to satisfy such liability by means of installment payments, unless such agreement otherwise provides;
(D) The commissioner has determined that the levy is creating an economic hardship due to the financial condition of the taxpayer (or feepayer); or
(E) The commissioner determines that the fair market value of the property exceeds the liability and release of the levy on a part of such property could be made without hindering the collection of such liability.
For purposes of paragraph (C) of this subdivision, the tax commissioner is not required to release such levy if such release would jeopardize the secured creditor status of the tax commissioner.
(2) Expedited determination on certain business property. -- In the case of any tangible personal property essential in carrying on the trade or business of the taxpayer (or feepayer), the tax commissioner shall provide for an expedited determination under subdivision (1)of this subsection if the levy on such tangible personal property would prevent the taxpayer (or feepayer) from carrying on such trade or business.
(3) Subsequent levy. -- The release of levy on any property under subdivision (1) of this subsection shall not operate to prevent a subsequent levy on such property.
(b) Return of property. -- If the tax commissioner determines that property has been wrongly levied upon, it shall be lawful for the tax commissioner to return:
(1) The specific property levied upon;
(2) An amount of money equal to the amount of money levied upon; or
(3) An amount of money equal to the amount of money received by the state of West Virginia from a sale of such property. Property may be returned at any time. An amount equal to the amount of money levied upon or received from such sale may be returned at any time before the expiration of nine months from the date of such levy. For purposes of this subdivision, if property is declared purchased by the state of West Virginia at a sale pursuant to section thirteen-c of this article (relating to manner and conditions of sale), the state of West Virginia shall be treated as having received an amount of money equal to the minimum price determined pursuant to such section or (if larger) the amount received by the state of West Virginia from the resale of such property.
(c) The tax commissioner shall, upon written request, make public the names and persons in whose favor a release of levy or return of property has been made in subsections (a) and (b) of this section.
(d) Interest. -- Interest shall be allowed and paid at an annual rate established under section seventeen-a of this article:
(1) In a case described in subdivision (2), subsection (b) of this section, from the date the tax commissioner receives the money to a date (to be determined by the tax commissioner) preceding the date of return by not more than thirty days; or
(2) In a case described in subdivision (3), subsection (b), of this section, from the date of the sale of the property to a date (to be determined by the tax commissioner) preceding thedate of return by not more than thirty days.
§11-10-13l. Reimbursement of bank and merchant charges due to erroneous levy.

(a) In general. -- A taxpayer may file a claim with the commissioner for reimbursement of bank and merchant charges incurred by the taxpayer as the direct result of an erroneous levy by the commissioner. Bank charges include a financial institution's customary charge for complying with the levy instructions and reasonable charges for overdrafts that are a direct consequence of the erroneous levy. Merchant charges include the reasonable charge for overdrafts that are a direct consequence of the erroneous levy. The charges are those paid by the taxpayer and not waived or reimbursed by the financial institution. Each claimant applying for reimbursement shall file a claim with the commissioner in a form prescribed by the commissioner.
(b) Other charges. -- A taxpayer may file a claim with the commissioner for reimbursement of any legal fees and costs including expert witness fees, court costs and other costs incurred by the taxpayer as the direct result of an erroneous levy by the commissioner. Each claimant applying for reimbursement shall file a claim with the commissioner in a form prescribed by the commissioner.
(c) Limitation. -- The commissioner may grant a claim only if the commissioner determines that both of the following two conditions have been satisfied:
(1) The erroneous levy was caused by commissioner's error;
(2) Before the levy, the taxpayer responded to all contacts by the commissioner and provided the commissioner with any requested information or documentation sufficient to establish the taxpayer's position. The conditions stated in this subdivision may be waived by the commissioner for reasonable cause.
(d) Time for filing claim. -- A claim pursuant to this section must be filed within ninety days from the date of the levy. Within thirty days from the date the claim is received, the commissioner shall respond to the claim. If the commissioner denies the claim, the taxpayer must be notified in writing of the reasons for the denial of the claim.
§11-10-14. Overpayments; credits; refunds and limitations.

(a) Refunds or credits of overpayments. -- In the case of overpayment of any tax (or fee), additions to tax, penalties or interest imposed by this article, or any of the other articles of this chapter, or of this code, to which this article is applicable, the tax commissioner shall, subject to the provisions of this article, refund to the taxpayer the amount of the overpayment or, if the taxpayer so elects, apply the same as a credit against the taxpayer's liability for such tax for other periods. The refund or credit shall include any interest due the taxpayer under the provisions of section seventeen of this article.
(b) Refunds or credits of gasoline and special fuel excise tax or motor carrier road tax. -- Any person who seeks a refund or credit of gasoline and special fuel excise taxes under theprovisions of section ten, eleven or twelve, article fourteen of this chapter, or section nine or eleven, article fourteen-a of this chapter, shall file his claim for refund or credit in accordance with the provisions of such sections. The ninety-day time period for determination of claims for refund or credit provided in subsection (d) of this section shall not apply to these claims for refund or credit.
(c) Claims for refund or credit. -- No refund or credit shall be made unless the taxpayer has timely filed a claim for refund or credit with the tax commissioner. A person against whom an assessment or administrative decision has become final shall not be entitled to file a claim for refund or credit with the tax commissioner as prescribed herein. The tax commissioner shall determine the taxpayer's claim and notify the taxpayer in writing of his determination.
(d) Petition of refund or credit; hearing. -- (1) If the taxpayer is not satisfied with the tax commissioner's determination of taxpayer's claim for refund or credit, or if the tax commissioner has not determined the taxpayer's claim within ninety days after such claim was filed, or six months in the case of claims for refund or credit of the taxes imposed by articles twenty-one, twenty-three and twenty-four of this chapter, after the filing thereof, the taxpayer may file, with the tax commissioner, either personally or by certified mail, a petition for refund or credit: Provided, That no petition for refund or credit may be filed more than sixty days after the taxpayer is served with notice of denial of taxpayer's claim.
(2) The petition for refund or credit shall be in writing, verified under oath by the said taxpayer, or by taxpayer's duly authorized agent having knowledge of the facts, and shall set forth with particularity the items of the determination objected to, together with the reasons for the objections.
(3) When a petition for refund or credit is properly filed, the procedures for hearing and for decision applicable when a petition for reassessment is timely filed shall be followed.
(e) Appeal. -- An appeal from the tax commissioner's administrative decision upon the petition for refund or credit may be taken by the taxpayer in the same manner and under the same procedure as that provided for judicial review of an administrative decision on a petition for reassessment, but no bond shall be required of the taxpayer.
(f) Decision of the court. -- Where the appeal is to review an administrative decision on a petition for refund or credit, the court may determine the legal rights of the parties but in no event shall it enter a judgment for money.
(g) Refund made or credit established. -- The tax commissioner shall promptly issue his requisition on the treasury or establish a credit, as requested by the taxpayer, for any amount finally administratively or judicially determined to be an overpayment of any tax (or fee) administered under this article. The auditor shall issue his warrant on the treasurer for any refund requisitioned under this subsection payable to the taxpayer entitled to the refund, and the treasurer shall pay such warrant out of the fund into which the amount so refunded wasoriginally paid: Provided, That refunds of personal income tax may also be paid out of the fund established pursuant to section ninety-three, article twenty-one of this chapter.
(h) Forms for claim for refund or a credit; where return shall constitute claim. -- The tax commissioner may prescribe by rule or regulation the forms for claims for refund or credit. Notwithstanding the foregoing, where the taxpayer has overpaid the tax imposed by article twenty-one, twenty-three or twenty- four of this chapter, a return signed by the taxpayer which shows on its face that an overpayment of such tax has been made shall constitute a claim for refund or credit.
(i) Remedy exclusive. -- The procedure provided by this section shall constitute the sole method of obtaining any refund, or credit, or any tax (or fee) administered under this article, it being the intent of the Legislature that the procedure set forth in this article shall be in lieu of any other remedy, including the uniform declaratory judgments act embodied in article thirteen, chapter fifty-five of this code, and the provisions of section two-a, article one of this chapter.
(j) Applicability of this section. -- The provisions of this section shall apply to refunds or credits of any tax (or fee), additions to tax, penalties or interest imposed by this article, or any article of this chapter, or of this code, to which this article is applicable.
(k) Erroneous refund or credit. -- If the tax commissioner believes that an erroneous refund has been made or an erroneous credit has been established, he may proceed to investigate andmake an assessment or institute civil action to recover the amount of such refund or credit, within two years from date the erroneous refund was paid or the erroneous credit was established.
(l) Limitation on claims for refund or credit. -- (1) General rule. -- Whenever a taxpayer claims to be entitled to a refund or credit of any tax (or fee), additions to tax, penalties or interest imposed by this article, or any article of this chapter, or of this code, administered under this article, paid into the treasury of this state, such taxpayer shall, except as provided in subsection (d) of this section, file his a claim for refund, or credit, within three years after the due date of the return in respect of which the tax (or fee) was imposed, determined by including any authorized extension of time for filing such return, or within two years from the date the tax, (or fee), was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within two years from the time the tax (or fee) was paid, and not thereafter.
(2) Extensions of time for filing claim by agreement. -- The tax commissioner and the taxpayer may enter into a written agreement to extend the period within which the taxpayer may file a claim for refund or credit, which period shall not exceed two years. The period so agreed upon may be extended for additional periods not in excess of two years each by subsequent agreements in writing made before expiration of the period previously agreed upon.
(3) Special rule where agreement to extend time for makingan assessment. -- Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, if an agreement is made under the provisions of section fifteen of this article extending the time period in which an assessment of tax can be made, then the period for filing a claim for refund or credit for overpayment of the same tax made during the periods subject to assessment under the extension agreement shall also be extended for the period of the extension agreement plus ninety days.
(4) Overpayment of federal tax. -- Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, in the event of a final determination by the United States internal revenue service or other competent authority of an overpayment in the taxpayer's federal income tax liability, the period of limitation upon claiming a refund reflecting such final determination in taxes imposed by articles 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) Tax paid to the wrong state. -- Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, when an individual, or the fiduciary of an estate, has in good faith erroneously paid personal income tax, estate tax or sales tax, to this state on income or a transaction which was lawfully taxable by another state and, therefore, not taxable by this state, and no dispute exists as to the jurisdiction to which the tax should have been paid, then the time period for filing a claim for refund, or credit, for the tax erroneously paid to this stateshall not expire until ninety days after the tax was lawfully paid to the other state.
(6) Exception for gasoline and special fuel excise tax and motor carrier road tax. -- This subsection shall not apply to refunds of gasoline and special fuel excise tax or motor carrier road tax sought under the provisions of article fourteen or fourteen-a of this chapter.
(m) Effective date. -- This section, as amended in the year one thousand nine hundred ninety-four, shall apply to claims for refund or credit filed on or after the first day of July, one thousand nine hundred ninety-four.
§11-10-14c. Prompt payment of refunds of personal income taxes.

(a) General rule. -- The net amount of a lawful, mathematically correct, uncontested claim for refund of any tax imposed by article twenty-one of this chapter shall be refunded to the taxpayer within ninety days after such a claim for refund is filed with the tax commissioner. If such refund is not made to a taxpayer within such ninety days, the tax commissioner shall pay interest, at the rate specified in section seventeen-a of this article, for the period commencing with the date such claim for refund was received by the tax commissioner until the date the state warrant for the refund amount is issued, notwithstanding any provisions of section seventeen of this article to the contrary.
(b) Definitions. -- For purposes of this section:
(1) A claim for refund is "filed with the tax commissioner" on the date it is physically received by the state tax division.
(2) A "lawful, mathematically correct, uncontested claim for refund" is one that is timely filed; is signed by the appropriate taxpayer or taxpayers; is mathematically correct; is supported by any necessary documentation; and appears on its face to be correct.
(c) The payment of a claim for refund under this section shall not bar the tax commissioner from later issuing an assessment to recover any amount erroneously refunded, plus statutory interest and any applicable additions to tax, within two years after the date the refund was made: Provided, That if the refund or any part thereof was obtained by fraud, the assessment may be made at any time.
(d) This section shall apply only to claims for refund of personal income taxes filed after the first day of January, one thousand nine hundred ninety-five.
§11-10-14d. Prompt payment of refunds of corporation net income taxes.

(a) General rule. -- The net amount of a lawful, mathematically correct, uncontested claim for refund of any tax imposed by article twenty-four of this chapter shall be refunded to the taxpayer within six months after such a claim for refund is filed with the tax commissioner. If such refund is not made to a taxpayer within such period, the tax commissioner shall pay interest, at the rate specified in section seventeen-a of this article, for the period commencing with the date such claim for refund was received by the tax commissioner until the date the state warrant for the refund amount is issued, notwithstandingany provisions of section seventeen of this article to the contrary.
(b) Definitions. -- For purposes of this section:
(1) A claim for refund is "filed with the tax commissioner" on the date it is physically received by the state tax division.
(2) A "lawful, mathematically correct, uncontested claim for refund" is one that is timely filed; is signed by the appropriate taxpayer or taxpayers; is mathematically correct; is supported by any necessary documentation; and appears on its face to be correct.
(c) The payment of a claim for refund under this section shall not bar the tax commissioner from later issuing an assessment to recover any amount erroneously refunded, plus statutory interest and any applicable additions to tax, within two years after the date the refund was made: Provided, That if the refund or any part thereof was obtained by fraud, the assessment may be made at any time.
(d) This section shall apply only to claims for refund of personal income taxes filed after the first day of January, one thousand nine hundred ninety-five.
ARTICLE 11. ESTATE TAXES.

§11-11-3. Imposition of tax.

Whenever a federal estate tax is payable to the United States, there is hereby imposed a West Virginia estate tax equal to the portion, if any, of the maximum allowable amount of federal credit for state death taxes which is attributable to property located in this state, or within its taxingjurisdiction. In no event, however, shall the estate tax hereby imposed result in a total death tax liability to this state and the United States in excess of the death tax liability to the United States which would result if this article were not in effect: Provided, That the estate tax hereby imposed shall not be affected by other credits properly allowable in computing the federal estate tax except that the unified credit established in Section 2010 of the Internal Revenue Code of 1986, as amended, shall be applied before calculating the West Virginia estate tax.
§11-11-17. Special lien for estate tax.

(a) Lien created. -- Unless the tax imposed by this article is sooner paid in full, or becomes unenforceable by reason of lapse of time, it shall be a lien for ten years after the death of the decedent upon all property, real or personal, of such decedent located in this state, except as provided in subsection (d) of this section.
(b) Liability of transferees and others. -- If the tax imposed by this article is not paid when due, then the transferee, trustee (except the trustee of an employees' trust which meets the requirements of Section 401(a) of the Internal Revenue Code of 1986, as amended), surviving tenant, person in possession of the property by reason of the exercise, nonexercise, or release of a power of appointment, or beneficiary who receives, or possesses on the date of the decedent's death, property included in the gross estate, to the extent of the value at the time of the decedent's death of such property, shall be personally liable for such tax. Any part of such propertytransferred by (or transferred by a transferee of) such transferee, trustee, surviving tenant, person in possession, or beneficiary, to a purchaser or holder of a security interest shall be divested of the lien provided in subsection (a) of this section and a like lien shall attach to all the property of such spouse, transferee, trustee, surviving tenant, person in possession, or beneficiary, or transferee of any such person, except any part transferred to a purchaser or a holder of a security interest.
(c) Continuance after discharge of fiduciary. -- The provisions of section twenty of this article eleven (relating to discharge of fiduciary from personal liability) shall not operate as a release of any part of the gross estate from the lien provided in subsection (a) of this section for any deficiency that may thereafter be determined to be due, unless such part of the gross estate (or any interest therein) has been transferred to a purchaser or a holder of a security interest, in which case such part (or such interest) so transferred shall not be subject to a lien or to any claim or demand for any such deficiency, but such lien shall attach to the consideration received from such purchaser or holder of a security interest, by the heirs, legatees, devisees, or distributees.
(d) Exceptions. --
(1) Such part of the property of the decedent as may at the time be subject to the lien provided for in subsection (a) of this section shall be divested of such lien to the extent used for payment of charges against the estate or expenses of itsadministration allowed by the county commission or court having jurisdiction thereof.
(2) Such part of the personal property of the decedent as may at the time be subject to the lien provided for in subsection (a) of this section shall be divested of such lien upon the conveyance or transfer of such property to a bona fide purchaser or holder of a security interest for an adequate and full consideration in money or money's worth. Such liens shall then attach to the consideration received for such property from such purchaser or holder of a security interest.
(e) Release of lien. -- Subject to such regulations as the tax commissioner may prescribe, the tax commissioner shall issue a certificate of release of any lien arising under this section not later than thirty days after the day on which the tax commissioner finds that the liability for the amount assessed, together with all interest and applicable penalties and additions to tax in respect thereof, has been fully satisfied or has become legally unenforceable.
(f) Certificate of discharge. -- Subject to such regulations as the tax commissioner may prescribe, the tax commissioner may issue a certificate of discharge of any or all of the property subject to the lien imposed by this section if the tax commissioner finds that the liability secured by such lien has been fully satisfied or provided for.
(g) Effect of certificate. --
(1) Conclusiveness. -- Except as provided in subdivisions (2) and (3) of this subsection, if a certificate is issuedpursuant to subsection (f) of this section by the tax commissioner and is filed in the same office as the notice of lien to which it relates (if such notice of lien has been filed), such certificate shall have the following effect:
(A) In the case of a certificate of release, such certificate shall be conclusive that the lien referred to in such certificate is extinguished;
(B) In the case of a certificate of discharge, such certificate shall be conclusive that the property covered by such certificate is discharged from the lien; and
(C) In the case of a certificate of nonattachment, such certificate shall be conclusive that the lien of the state of West Virginia does not attach to the property of the person referred to in such certificate.
(2) Revocation of certification of release or nonattachment. -- If the tax commissioner determines that a certificate of release or nonattachment of a lien imposed by this section was issued erroneously or improvidently, or if a certificate of release of such lien was issued pursuant to a collateral agreement entered into in connection with a compromise under section five-q, article ten of this chapter, which has been breached, and if the period of limitation on collection after assessment has not expired, the tax commissioner may revoke such certificate and reinstate such lien:
(A) By mailing notice of such revocation to the person against whom the tax was assessed at his or her last known address; and
(B) By filing notice of such revocation in the same office in which notice of lien to which it relates was filed (if such notice of lien had been filed).
Such reinstated lien: (i) Shall be effective on the date the notice of revocation is mailed to the taxpayer in accordance with the provisions of the foregoing paragraph (A), but not earlier than the date on which any required filing of notice of revocation is filed in accordance with the provisions of the foregoing paragraph (B); and (ii) shall have the same force and effect (as of such date), until the expiration of the period of limitation on collection after assessment, as a lien imposed by section eleven, article ten of this chapter, (relating to lien for taxes).
(3) Certificates void under certain conditions. -- Notwithstanding any other provision of this article, any lien imposed by this section shall attach to any property with respect to which a certificate of discharge has been issued if the person liable for payment of the tax reacquires such property after such certificate has been issued.
§11-11-17a. Discharge of nonresident decedent's real property in absence of ancillary administration.

(a) The domiciliary personal representative of a nonresident decedent may apply to the tax commissioner for a certificate releasing all real property situate in this state included in decedent's gross estate from any lien imposed by section seventeen of this article. In the absence of ancillary administration in this state, the tax commissioner may considerreliable and satisfactory evidence furnished by the personal representative regarding the value of such real property and the amount of tax due under this article, or that no tax liability exists under this article with respect to any such real property.
(b) If the tax commissioner determines that such reliable and satisfactory evidence exists, an affidavit of value submitted by the personal representative made pursuant to and in conjunction with such evidence shall be marked as inspected by the commissioner and shall be filed by the estate in the county or counties of this state where the real property is situate.
(c) In determining tax liability, the tax commissioner may also consider an appraisal of the real property submitted in writing to the tax commissioner, paid for by the personal representative and made at the personal representative's request. Such appraisal shall be performed by a licensed real estate appraiser acceptable to the tax commissioner and it shall be filed in the county or counties where such real property is situate.
(d) If the tax commissioner is satisfied that no tax liability exists, or that the tax liability of the estate has been fully discharged, the tax commissioner may issue a certificate under subsection (f), section seventeen of this article.
§11-11-19. Final accounting delayed until liability for tax determined.

(a) If a personal representative is required to file a federal estate tax return for the estate of a decedent, then nofinal account of that personal representative shall be allowed or approved in any probate proceeding with respect to that estate, by the county commission, or the clerk thereof, before whom such proceeding is pending, unless the county commission finds that the tax imposed on the transfer of property by this article has been paid in full, or that no such tax is due.
(b) No final account of a personal representative of an estate shall be allowed by any county commission, or clerk thereof, unless such account shows and the county commission, or clerk thereof, finds that all taxes imposed by this article upon such personal representative, which have become payable, have been paid.
(c) The certificate of release, discharge or nonattachment issued to the personal representative by the tax commissioner under section seventeen of this article shall be conclusive in such proceeding as to the liability or the payment of tax, to the extent provided in such certificate.
§11-11-20. Liability of personal representatives; etc.

(a) Personal representative. -- Any personal representative who distributes any property of an estate without first paying, securing another's payment of, or furnishing security for payment of the taxes due under this article, is personally liable for payment of the taxes due, to the extent of the value of any property that may come or that may have come into the possession of the personal representative. Security for payment of taxes due under this article shall be in an amount equal to or greater than the value of all property that is or has come into thepossession of the personal representative, determined as of the time the security is furnished.
(b) Other person having control, custody or possession of property. -- Any person in this state who has control, custody or possession of any property includible in the gross estate of a decedent for federal estate tax purposes, and who delivers any of such property to the personal representative or other legal representative of the decedent outside this state without first paying, securing another's payment of, or furnishing security for payment of the taxes due under this article, is liable for the taxes due under this article to the extent of the value of the property delivered. Security for payment of the taxes due under this article shall be in an amount equal to or greater than the value of all property delivered to the personal representative or other legal representative of the decedent outside this state by such a person.
(c) Persons not having control. -- For the purpose of this section, persons do not have control, custody or possession of a decedent's property if they are not responsible for paying the tax due under this article, such as transferees, which term includes, but is not limited to, stockbrokers or stock transfer agents, banks and other depositories of checking and savings accounts, safe deposit companies and life insurance companies.
(d) Reliance upon tax commissioner's certificates. -- For the purposes of this section, any person in this state who has the control, custody or possession of any property includible in the gross estate of the decedent for federal estate tax purposes,and who delivers any of the such property to the personal representative or other legal representative of the decedent, may rely upon the release or certificate furnished by the tax commissioner under section seventeen of this article to the personal representative as evidence of compliance with the requirements of this article, and make such deliveries and transfers as the personal representative may direct without being liable for any taxes due under this article with respect to any such property.
(e) Discharge of personal liability for federal estate taxes. -- If a personal representative receives a discharge from personal liability for federal estate taxes pursuant to Section 2204 of the Internal Revenue Code of 1986, as amended, and if the personal representative makes written application to the tax commissioner for determination of the amount of the tax due under this article and for discharge from personal liability, the tax commissioner, within two months after receiving satisfactory evidence of the Section 2204 discharge, but not after the expiration of the period for issuance of a deficiency assessment, shall notify the personal representative of the amount of the tax due under this article, including the amount of any interest, additions to tax or penalties that are due. The personal representative, upon payment of the amount of which he is notified (other than any portion for which an extension of time for payment has been granted), and upon furnishing any bond that may be required by the tax commissioner to secure payment of any amount for which the time for payment has been extended, shall bedischarged from personal liability for any deficiency in tax thereafter found to be due and shall be entitled to a receipt or writing showing the discharge.
§11-11-27. Prima facie liability for tax.

(a) The estate of each decedent whose property is subject to the laws of this state and which is required to file a federal estate tax return shall be deemed prima facie liable for payment of estate taxes under this article and shall be subject to a lien therefor in such amount as may be later determined to be due and payable on such estate as provided in this article.
(b) This presumption of liability shall begin on the date of the death of the decedent and shall continue until the full settlement of all taxes which may be found to be due under this article, the settlement to be shown by receipts for payment of all taxes due under this article, to be issued by the tax commissioner as provided for in this article.
(c) Whenever the tax commissioner determines that an estate described in subsection (a) of this section is not liable for payment of tax under this article, the tax commissioner shall issue to the personal representative a certificate in writing to that effect, showing such nonliability to tax, which certificate of nonliability shall have the same force and effect as a receipt showing payment of tax. This certificate of nonliability may be recorded and shall be admissible in evidence in like manner as receipts showing payment of taxes due under this article.
§11-11-43. Effective date.

The amendments to this article made by this act shall takeeffect as provided in the constitution of this state and, upon such effective date, these amendments shall apply to the estates of all decedents dying after the thirtieth day of June, one thousand nine hundred eighty-five, for which no estate tax lien release has been issued by the tax commissioner prior to the effective date of these amendments in the year one thousand nine hundred ninety-four, and to estates of all decedents dying after the effective date of these amendments.
CHAPTER 38. LIENS.

ARTICLE 10C. STATE AND LOCAL TAX LIENS.

§38-10C-1. Recordation necessary for priority of liens in favor of state, political subdivision or municipality.

No lien in favor of the state of West Virginia, or any political subdivision thereof or of any municipality therein, whether heretofore or hereafter accruing, except the lien for taxes accruing under the provisions of article eight, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, shall be enforceable as against a purchaser (including lien creditor) of real estate or personal property for a valuable consideration, without notice, unless docketed, as hereinafter provided, in the office of the clerk of the county commission of the county wherein such real estate or personal property is, before a deed therefor to such purchaser is delivered for record to the clerk of the county commission of such county: Provided, That when docketed in accordance with section two of this article, such lien shall have priority over all other subsequently filed liens authorized by this code. Theterm "purchaser" as used herein shall be construed to include lien creditors whose liens were acquired and perfected prior to such docketing.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2021 West Virginia Legislature **


X

Print On Demand

Name:
Email:
Phone:

Print