ENGROSSED
Senate Bill No. 542
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[Originating in the Committee on Finance;
reported March 22, 1993.]
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A BILL to repeal sections five, six and eight, article four-b,
chapter nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to repeal sections nine, ten
and twelve, article four-c of said chapter; to repeal
sections fourteen, twenty-two, twenty-three and twenty-four,
article thirteen-a, chapter eleven of said code; to repeal
section eight, article twenty-one of said chapter; to repeal
section eighteen, article twenty-six of said chapter; to
amend and reenact section thirteen, article fifteen, chapter
seven of said code; to amend article two, chapter nine of
said code by adding thereto two new sections, designated
sections nine and ten; to amend and reenact sections one and
four, article four-b of said chapter; to amend and reenact
sections one, two and seven, article four-c of said chapter;
to amend article five of said chapter by adding thereto a
new section, designated section seventeen; to amend and
reenact sections one, two, three, three-c, four, nine,
twenty-five and twenty-eight, article thirteen, chapter
eleven of said code; to further amend said article by adding
thereto four new sections, designated sections two-a, four-
a, twenty-seven-a and thirty-two; to amend and reenact
sections one, two, three, seven, eight, nine, ten, eleven,
twelve, thirteen, nineteen, twenty and twenty-one, article
thirteen-a of said chapter; to further amend said article by
adding thereto four new sections, designated sections three-
a, three-b, twenty-a and twenty-five; to amend article
twenty-six of said chapter by adding thereto a new section,
designated section twenty; to further amend said chapter by
adding thereto a new article, designated article twenty-
seven, all relating to repeal of the physician provider
medicaid enhancement fund; repeal of enhanced medicaid
reimbursements for any physician provider; repeal of the
abrogation provision of article four-b; repeal of provider
medicaid enhancement funds; repeal of enhanced medicaid
reimbursements for any other health care provider; repeal of
the abrogation provision of article four-c; repeal of the
severance tax credit for coal coking facilities; repeal of
the severance tax credit for consumers sales and service tax
and use tax paid; repeal of the business and occupation tax
credit as against personal income tax; repeal of the
abrogation provision of article twenty-six; medicaid tax
revenue; limitation of tax credit for business investment
and job expansion to qualified investment property purchased
or placed into service or use after the first day of April,
one thousand nine hundred and ninety-three, as against the
business and occupation tax; conforming health care provider
tax to requirements of applicable federal law; taxation ofambulance authorities; requiring secretary to initiate
managed care system and other reforms; requiring nonprofit
agency or facility in receipt of medicaid moneys to provide
annual accounting of gross receipts and disbursements,
including salaries; provide for utilization in-state health
care facilities for inpatient treatment when available;
collection of copayments by health care providers;
penalties; deleting tax imposed solely on medicaid
reimbursements; deleting hold-harmless provisions; deleting
abrogation provisions; definitions; changing composition of
general medicaid board; requiring that medicaid
reimbursement schedules be developed within limits of
available funding; creation of general medicaid board to
recommend fee schedules of health care providers to single
state agency; creation of physician provider board to
recommend fee schedules of physicians to single state
agency; providing for quarterly review and reporting of fee
schedules to the Legislature; establishing a business and
occupation privilege tax imposed on certain gross income of
certain health care providers; limitations on municipalities
to tax health care providers; establishing a severance and
business privilege tax imposed on certain gross income of
certain health care providers; establishing a broad based
health care provider tax imposed on certain gross patient
revenues of certain health care providers; and transition
rules.
Be it enacted by the Legislature of West Virginia:
That sections five, six and eight, article four-b, chapternine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that sections nine, ten and
twelve, article four-c of said chapter be repealed; that sections
fourteen, twenty-two, twenty-three and twenty-four, article
thirteen-a, chapter eleven of said code be repealed; that section
eight, article twenty-one of said chapter be repealed; that
section eighteen, article twenty-six of said chapter be repealed;
that section thirteen, article fifteen, chapter seven of said
code be amended and reenacted; that article two, chapter nine of
said code be amended by adding thereto two new sections,
designated sections nine and ten; that sections one and four,
article four-b of said chapter be amended and reenacted; that
sections one, two and seven, article four-c of said chapter be
amended and reenacted; that article five of said chapter be
amended by adding thereto a new section, designated section
seventeen; that sections one, two, three, three-c, four, nine,
twenty-five and twenty-eight, article thirteen, chapter eleven of
said code be amended and reenacted; that said article be further
amended by adding thereto four new sections, designated sections
two-a, four-a, twenty-seven-a and thirty-two; that sections one,
two, three, seven, eight, nine, ten, eleven, twelve, thirteen,
nineteen, twenty and twenty-one, article thirteen-a of said
chapter be amended and reenacted; that said article be further
amended by adding thereto four new sections, designated sections
three-a, three-b, twenty-a and twenty-five; that article twenty-
six of said chapter be amended by adding thereto a new section,
designated section twenty; and that said chapter be further
amended by adding thereto a new article, designated articletwenty-seven, all to read as follows:
CHAPTER 7. TRAINING PROGRAMS FOR COUNTY EMPLOYEES, ETC.;
COMPENSATION OF ELECTED COUNTY OFFICIALS; COUNTY ASSISTANTS,
DEPUTIES AND EMPLOYEES, THEIR NUMBER AND COMPENSATION.
ARTICLE 15. EMERGENCY AMBULANCE SERVICE ACT OF 1975.
§7-15-13. Exemption from taxation.
It is hereby found, determined and declared that the
creation of any authority and the carrying out of its purposes is
in all respects for the benefit of the people of this state in
general and of the participating governments in particular and is
a public purpose; and that the authority will be performing an
essential governmental function in the exercise of the powers
conferred upon it by the provisions of this article. Accordingly,
each authority and, without limitation, its revenues, properties,
operations and activities shall be exempt from the payment of any
taxes or fees to the state or any of its political subdivisions:
Provided, That this exemption shall not apply to the tax imposed
by section three, article thirteen-a, chapter eleven of this code
on gross receipts derived from transporting patients. Interest
on obligations and all evidences of indebtedness of any such
authority shall be exempt from taxation, except inheritance and
transfer taxes:
Provided, however, That this exemption shall not
apply to the tax imposed by section three, article thirteen-a,
chapter eleven of this code on gross receipts derived from
transporting patients.
CHAPTER 9. HUMAN SERVICES.
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES AND OFFICE
OF COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND
RESPONSIBILITIES GENERALLY.
§9-2-9. Secretary to develop medicaid monitoring and case
management.
On or before the first day of September, one thousand nine
hundred ninety-three, the secretary of the department of health
and human resources shall develop a managed care system to
monitor the services provided by the medicaid program to
individual clients, develop an independent referral service
including the review of individual cases for abuses of the
program and develop a schedule for implementation of the managed
care system. The managed care system shall focus on, but not be
limited to, the behavioral health and mental health services. In
addition thereto, in accordance with applicable federal medicaid
laws, the secretary shall prepare recommendations, to be
submitted to the joint committee on government and finance on or
before the first day of September, one thousand nine hundred
ninety-three, concerning the following:
(i) A policy of prior authorization for certain identified
health care procedures;
(ii) A policy for identifying excessive use of certain
health care procedures by individuals and providers;
(iii) A policy of utilization caps for certain health care
procedures;
(iv) A policy concerning disallowance of reimbursement rates
for cosmetic procedures;
(v) A policy concerning higher reimbursement rates for basic
primary health care services; and
(vi) The secretary is to utilize in-state health carefacilities for inpatient treatment when such facilities are
available. Prior authorization, consistent with applicable
federal law, will be required for out-of-state inpatient
treatment when such in-state inpatient health care facilities are
not available.
§9-2-10. Collection of copayments by health care providers;
penalties.
(a) The secretary is hereby directed to institute procedures
to enforce the collection of copayments as required by Chapter
42, Section 447.53 of the Code of Federal Regulations. Any
individual or entity receiving reimbursement from the state under
the medical assistance program of the Social Security Act is
required to collect such copayments and report the collection
thereof to the single state agency:
Provided, That pursuant to
Chapter 42, Section 447.15 of the Code of Federal Regulations, no
such individual or entity shall refuse care or services to any
medicaid-eligible individual because of the individual's
inability to pay such copayment. In the event the copayment is
not collected, the failure to collect the copayment and reasons
therefor shall likewise be reported.
(b) Any person, firm, corporation or other entity which
willfully, by means of a false statement or representation, or by
concealment of any material fact, or by other fraudulent scheme,
device or artifice on behalf of himself, itself or others, fails
to collect the copayment as mandated by Chapter 42, Section
447.53 of the Code of Federal Regulations, shall be liable to the
department of health and human resources in the amount of five
hundred dollars for each occurrence of failure to collect saidcopayment and shall be liable for payment of reasonable attorney
fees and all other fees and costs of litigation.
(c) A civil action under this section may be prosecuted and
maintained on behalf of the department of health and human
resources by the office of the attorney general or by any
attorney employed by the department of health and human resources
to provide such representation.
ARTICLE 4B. PHYSICIAN PROVIDER MEDICAID ACT.
§9-4B-1. Definitions.
The following words when used in this article have meanings
ascribed to them in this section, except in those instances where
the context clearly indicates a different meaning:
(a) "Board" means the physician provider medicaid board
created to develop, review and recommend the physician provider
fee schedule.
(b) "Fund" means the physician provider medicaid fund
established to receive moneys collected from physician providers,
individuals and corporations which will be matched with federal
medicaid funds pursuant to Title XIX of the United States Social
Security Act and expended in accordance with the provisions of
this article.
(c) "Physician provider" means a person engaged in
delivering services within the scope of practice of medicine or
osteopathy by or under the personal supervision of a person
licensed to practice as an allopathic or osteopathic physician,
regardless of location, rendering services within or without this
state and receiving reimbursement, directly as an individual
provider or indirectly as an employee or agent of a medicalclinic, partnership or other business entity.
(d) "Single state agency" means the single state agency for
medicaid in this state.
§9-4B-4. Powers and duties.
(a) The board shall:
(1) Develop and recommend a reasonable physician provider
fee schedule so that the schedule conforms within the limits of
funds available, to usual and customary charges in accordance
with federal medicaid laws. In developing the fee schedule, the
board shall refer to a nationally published fee schedule selected
by the secretary of the department of health and human resources.
The board may consider identified health care priorities in
developing its fee schedule to the extent permitted by applicable
federal medicaid laws, and may recommend higher reimbursement
rates for basic primary and preventive health care services than
for other services. In identifying basic primary and preventive
health care services and in accordance with applicable federal
medicaid laws, the board may consider factors, including, but not
limited to, services defined and prioritized by the basic
services task force of the health care planning commission in its
report issued in December of the year one thousand nine hundred
ninety-two; and minimum benefits and coverages for policies of
insurance as set forth in section fifteen, article fifteen and
section four, article sixteen-c, chapter thirty-three of this
code and rules of the insurance commissioner promulgated
thereunder. If the single state agency approves the adjustments
to the fee schedule, it shall implement the physician provider
fee schedule;
(2) Review the fee schedule on a quarterly basis and
recommend to the single state agency any adjustments it considers
necessary. If the single state agency approves the board's
adjustments, it shall immediately implement the adjustments and
shall report the same to the joint committee on government and
finance on a quarterly basis;
(3) Meet and confer with representatives from each medical
specialty area so that equity in reimbursement increases may be
achieved to the greatest extent possible;
(4) Assist and enhance communications between participating
physician providers and the department of health and human
resources; and
(5) Review reimbursements in relation to those physician
providers who provide early and periodic screening diagnosis and
treatment.
(b) The board may carry out any other powers and duties as
prescribed for it by the secretary.
(c) Nothing in this section gives the board the authority to
interfere with the discretion and judgment given to the single
state agency that administers the state's medicaid program. If
the single state agency disapproves the recommendations or
adjustments to the fee schedule, in accordance with applicable
medicaid laws, it is expressly authorized to make any
modifications to fee schedules as are necessary to ensure that
total financial requirements of the agency for the current fiscal
year with respect to the state's medicaid plan are met and shall
report the same to the joint committee on government and finance
on a quarterly basis. The purpose of the board is to assist andenhance the role of the single state agency in carrying out its
mandate by acting as a means of communication between the
medicaid provider community and the agency.
(d) On a quarterly basis, the single state agency shall
report to the joint committee on government and finance the
status of the fund, adjustments to the fee schedule and the fee
schedule for each health care provider group identified in
section one of this article.
ARTICLE 4C. HEALTH CARE PROVIDER MEDICAID ACT.
§9-4C-1. Definitions.
The following words when used in this article have the
meanings ascribed to them in this section, except in those
instances where the context clearly indicates a different
meaning:
(a) "Ambulance service provider" means a person, regardless
of location, rendering ambulance services within or without this
state and receiving reimbursement, directly as an individual
provider or indirectly as an employee or agent of a medical
clinic, partnership or other business entity.
(b) "Dentist provider" means a dentist, regardless of
location, rendering services within or without this state and
receiving reimbursement, directly as an individual provider or
indirectly as an employee or agent of a medical clinic,
partnership or other business entity.
(c) "General health care provider" means an advanced nurse
practitioner, an audiologist, a chiropractor, a nurse-midwife, an
occupational therapist, an optician, an optometrist, a physical
therapist, a podiatrist, a psychologist, a speech therapist, abehavioral health center, a community care provider, regardless
of location, rendering services within or without this state and
receiving reimbursement, directly as an individual provider or
indirectly as an employee or agent of a medical clinic,
partnership or other business entity.
(d) "Inpatient hospital service provider" means a hospital,
regardless of location, maintained primarily for the care and
treatment of patients with disorders other than mental diseases,
providing services for the care and treatment of inpatients. As
used in this definition, "services" may include inpatient
psychiatric services.
(e) "Outpatient hospital service provider" means a hospital,
regardless of location, providing preventative, diagnostic,
therapeutic, rehabilitative or palliative services that are
furnished to outpatients.
(f) "Secretary" means the secretary of the department of
health and human resources.
(g) "Single state agency" means the single state agency for
medicaid in this state.
§9-4C-2. General medicaid board.
There is hereby created the general medicaid board to
consist of fifteen members who shall be appointed by the
governor, including two lay persons and one representative from
each of the following thirteen groups: Advanced nurse
practitioner, an audiologist, a chiropractor, a nurse-midwife, an
occupational therapist, an optician, an optometrist, a physical
therapist, a podiatrist, a psychologist, a speech therapist, a
behavioral health center, a community care provider. In additionto the fifteen members appointed by the governor, the secretary,
or his or her designee, shall serve as an ex officio, nonvoting
member of the board. The governor shall make all appointments
within twenty days from the effective date of this article.
After the initial appointment of the board, any appointment to
fill a vacancy shall be for the unexpired term only, shall be
made in the same manner as the initial appointment, and the terms
of all members shall expire on the first day of July, one
thousand nine hundred ninety-four.
§9-4C-7. Powers and duties.
(a) Each board created pursuant to this article shall:
(1) Develop and recommend a reasonable provider fee
schedule, in relation to its respective provider group, so that
the schedule conforms, within the limits of available funding, to
usual and customary charges in accordance with federal medicaid
laws. In developing the fee schedule the board shall refer to a
nationally published fee schedule, if available, as selected by
the secretary in accordance with section eight of this article.
The board may consider identified health care priorities in
developing its fee schedule to the extent permitted by applicable
federal medicaid laws, and may recommend higher reimbursement
rates for basic primary and preventative health care services
than for other services. In identifying basic primary and
preventative health care services, the board may consider
factors, including, but not limited to, services defined and
prioritized by the basic services task force of the health care
planning commission in its report issued in December of the year
one thousand nine hundred ninety-two; and minimum benefits andcoverages for policies of insurance as set forth in section
fifteen, article fifteen and section four, article sixteen-c,
chapter thirty-three of this code and rules of the insurance
commissioner promulgated thereunder. If the single state agency
approves the adjustments to the fee schedule, it shall implement
the provider fee schedule;
(2) Review its respective provider fee schedule on a
quarterly basis and recommend to the single state agency any
adjustments it considers necessary. If the single state agency
approves a board's adjustment, it shall immediately implement the
adjustments and shall report the same to the joint committee on
government and finance on a quarterly basis;
(3) Assist and enhance communications between participating
providers and the department of health and human resources;
(4) Meet and confer with representatives from each specialty
area within its respective provider group so that equity in
reimbursement increases may be achieved to the greatest extent
possible and when appropriate to meet and confer with other
provider boards; and
(5) Appoint a chairperson to preside over all official
transactions of the board.
(b) Each board may carry out any other powers and duties as
prescribed to it by the secretary.
(c) Nothing in this section gives any board the authority to
interfere with the discretion and judgment given to the single
state agency that administers the state's medicaid program. If
the single state agency disapproves the recommendations or
adjustments to the fee schedule, it is expressly authorized tomake any modifications to fee schedules as are necessary to
ensure that total financial requirements of the agency for the
current fiscal year with respect to the state's medicaid plan are
met and shall report to the joint committee on government and
finance on a quarterly basis. The purpose of each board is to
assist and enhance the role of the single state agency in
carrying out its mandate by acting as a means of communication
between the health care provider community and the agency.
(d) In addition to the duties specified in subsection (a) of
this section, the ambulance service provider medicaid board shall
work with the health care cost review authority to develop a
method for regulating rates charged by ambulance services. The
health care cost review authority shall report its findings to
the Legislature by the first day of January, one thousand nine
hundred ninety-four. The costs of the report shall be paid by
the health care cost review authority. In this capacity only,
the chairperson of the health care cost review authority shall
serve as an ex officio, nonvoting member of the board.
(e) On a quarterly basis, the single state agency shall
report the status of the fund, adjustments to the fee schedule
and the fee schedule to the joint committee on government and
finance for each health care provider identified in section two
of this article.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-17. Nonprofit agency or facility, in receipt of medicaid
moneys, shall provide annual accounting of gross receipts
and disbursements including salaries.
Any nonprofit health care agency or facility which receivesmedicaid moneys shall as a condition of the receipt of same,
provide an annual accounting of that facility's or provider's
receipts and disbursements, including the total salaries of all
employees and administrators, with one copy of same to be
submitted to the joint committee on government and finance and
one copy submitted to health care cost review authority on or
before the fifteenth day of the first month of the year, for the
preceding year.
CHAPTER 11. TAXATION.
ARTICLE 13. BUSINESS AND OCCUPATION TAX.
§11-13-1. Definitions.
(a)
General. -- When used in this article, or in the
administration of this article, the terms defined in subsections
(b) and (c) shall have the meanings ascribed to them by this
section, unless a different meaning is clearly required by either
the context in which the term is used or by specific definition.
(b)
Terms defined. --
(1) "Person" or the term "company", herein used
interchangeably, includes any individual, firm, copartnership,
joint adventure, association, corporation, trust or any other
group or combination acting as a unit, and the plural as well as
the singular number, unless the intention to give a more limited
meaning is disclosed by the context.
(2) "Sale", "sales" or "selling" includes any transfer of or
title to property or electricity, whether for money or in
exchange for other property.
(3) "Taxpayer" means any person liable for any tax
hereunder.
(4) "Gross income" means the gross receipts of the taxpayer,
received as compensation for personal services and the gross
receipts of the taxpayer derived from trade, business, commerce
or sales and the value proceeding or accruing from the sale of
tangible property (real or personal), or service, or both, and
all receipts by reason of the investment of the capital of the
business engaged in, including rentals, royalties, fees,
reimbursed costs or expenses or other emoluments however
designated and including all interest, carrying charges, fees or
other like income, however denominated, derived by the taxpayer
from repetitive carrying of accounts, in the regular course and
conduct of his business, and extension of credit in connection
with the sale of any tangible personal property or service, and
without any deductions on account of the cost of property sold,
the cost of materials used, labor costs, taxes, royalties paid in
cash or in kind or otherwise, interest or discount paid or any
other expenses whatsoever.
(5) "Gross proceeds of sales" means the value, whether in
money or other property, actually proceeding from the sale of
tangible property without any deduction on account of the cost of
property sold or expenses of any kind.
(6) "Business" shall include all activities engaged in or
caused to be engaged in with the object of gain or economic
benefit, either direct or indirect. "Business" shall include the
rendering of gas storage service by any person for the gain or
economic benefit of any person, including, but not limited to,
the storage operator. "Business" also includes activities,
whether engaged in for profit, or not for profit, or by agovernmental entity:
Provided, That "business" does not include
services rendered by an employee within the scope of his or her
contract of employment. Employee services, services by a partner
on behalf of his or her partnership, and services by a member of
any other business entity on behalf of that entity, are the
business of the employer, or partnership, or other business
entity, as the case may be, and reportable as such for purposes
of the taxes imposed by this article.
(7) "Gas" means either natural gas unmixed, or any mixture
of natural and artificial gas or any other gas.
(8) "Storage reservoir" means that portion of any
subterranean sand or rock stratum or strata into which gas has
been injected for the purpose of storage prior to the first day
of March, one thousand nine hundred eighty-nine.
(9) "Gas storage service" means the injection of gas into a
storage reservoir, the storage of gas for any period of time in
a storage reservoir, or the withdrawal of gas from a storage
reservoir. Such gas may be owned by the storage operator or any
other person.
(10) "Net number of dekatherms of gas injected" means the
sum of the daily injection of dekatherms of gas in excess of the
sum of the daily withdrawals of dekatherms of gas during a tax
month.
(11) "Net number of dekatherms of gas withdrawn" means the
sum of the daily withdrawal of dekatherms of gas in excess of the
sum of the daily injection of dekatherms of gas during a tax
month.
(12) "Partner" includes a member of such a syndicate, group,pool, joint venture or other organization which is a
"partnership", as defined in this section.
(13) "Partnership" includes a syndicate, group, pool, joint
venture, or other unincorporated organization through or by means
of which any privilege taxable under this article is exercised,
and which is not within the meaning of this article a trust or
estate or corporation. "Partnership" includes a limited
liability company which is treated as a partnership for federal
income tax purposes.
(14) "Gas storage operator" means any person who operates a
storage reservoir or provides a storage service as defined
herein, either as owner or lessee.
(15) "Month" or "tax month" means the calendar month.
(16) "Dekatherm" means the thermal energy unit equal to one
million British thermal units (BTU's) or the equivalent of one
thousand cubic feet of gas having a heating content of one
thousand BTU's per cubic foot.
(17) "Taxable year" means the calendar year, or the fiscal
year ending during such calendar year, upon the basis of which
tax liability is computed under this article. "Taxable year"
means, in case of a return made for a fractional part of a year
under the provisions of this article, or under regulations
promulgated by the tax commissioner, the period for which such
return is made.
(c)
Specific definitions for persons providing health care
items or services. --
(1) "Advanced nurse practitioners" means certified pediatric
nurse practitioners and certified family nurse practitioners asdefined in article seven, chapter thirty of this code and duly
licensed by the board of examiners for registered professional
nurses.
(2) "Audiologist" means a person licensed to practice
audiology in this state.
(3) "Chiropractor" means a person licensed to practice
chiropractic in this state.
(4) "Dentist" means a person licensed to practice dentistry
or dental surgery in this state.
(5) "Nurse-midwife" means a person licensed to practice
nurse-midwifery in this state.
(6) "Occupational therapist" means a person licensed to
practice occupational therapy in this state.
(7) "Optician" means a maker or dealer in optical items or
instruments; or a person who grinds and dispenses prescription
spectacle lenses.
(8) "Optometrist" means a person licensed to practice
optometry in this state.
(9) "Physical therapist" means a person licensed to practice
physical therapy in this state.
(10) "Podiatrist" means a person licensed to practice
podiatry in this state.
(11) "Psychologist" means a person licensed to practice
psychology in this state.
(12) "Speech therapist" means speech-language pathologists
and audiologists as defined in section two, article thirty-two,
chapter thirty of this code.
§11-13-2. Imposition of privilege tax.
(a)
Imposition of tax. -- For the privilege of engaging in
certain business activities in this state, there is hereby levied
and shall be collected from every person engaging in one or more
of such activities during the taxable year an annual privilege
tax. The amount of tax due shall be determined by the
application of rates against the measure of tax as set forth in
sections two-a, two-d, two-e, two-m and two-n of this article, as
appropriate, to the activity or activities of such person during
the taxable year.
(b)
Apportionment of gross income. -- When a business or
other activity taxable under this article is engaged in partially
in this state and partially in another state, the measure of tax
under this article shall be determined under the rules set forth
in this subsection
.
(1) When a service is rendered partially in this state and
partially in another state the gross income attributable to such
service shall be allocated or apportioned in accordance with
uniform rules promulgated by the tax commissioner.
(2) If any person liable for any tax under section two-m
shall ship or transport his products or any part thereof out of
the state without making sale of such products, the value of the
products in the condition or form in which they exist immediately
before transportation out of the state shall be the basis for the
assessment of the tax imposed in such section, except in those
instances in which another measure of the tax is expressly
provided. The tax commissioner shall prescribe equitable and
uniform rules for ascertaining such value.
(3) In determining value, however, as regards sales from oneto another of affiliated companies or persons, or under other
circumstances where the relation between the buyer and seller is
such that the gross proceeds from the sale are not indicative of
the true value of the subject matter of the sale, the tax
commissioner shall prescribe uniform and equitable rules for
determining the value upon which such privilege tax shall be
levied, corresponding as nearly as possible to the gross proceeds
from the sale of similar products of like quality or character
where no common interest exists between the buyer and seller but
the circumstances and conditions are otherwise similar.
(c)
Effective date. -- This section, as amended in the year
one thousand nine hundred ninety-three, shall take effect on the
first day of May, one thousand nine hundred ninety-three, and
apply to taxable years, or portions thereof, ending after the
thirtieth day of April, one thousand nine hundred ninety-three.
With regard to taxable years or portions thereof ending before
the said first day of May, the language of this section as then
in effect for such years or portions thereof is fully and
completely preserved.
§11-13-2a. Certain professional service businesses.
(a) Upon every person engaging or continuing within this
state in certain professional service business activities, the
amount of tax imposed by section two of this article shall be
equal to one and three-fourths percent of the gross income of
such persons derived from the conduct of such professional
service business activity in this state:
Provided, That dentists
shall be taxed at a rate equal to one and one-fourths percent of
the gross income of such professional service business activityin this state.
(b) The measure of tax under this section shall be
determined using the cash method of accounting, whether or not
taxpayer uses that method of accounting for federal income tax
purposes.
(c)
"Certain professional services" defined. -- For purposes
of this section, the term "certain professional services" means,
and is limited to, the health care related activities of advanced
nurse practitioners, audiologists, chiropractors, dentists,
nurse-midwives, occupational therapists, opticians, optometrists,
physical therapists, podiatrists, psychologists and speech
therapists.
(d)
Effective date. -- The tax imposed by section two of
this article, the amount of which is determined under this
section, applies to gross income received after the thirtieth day
of April, one thousand nine hundred ninety-three, regardless of
when the transaction or activity generating the gross income
occurred.
§11-13-3. Annual exemption and periods thereof.
There shall be an exemption in every case of forty-one
dollars and sixty-seven cents per month in amount of tax computed
under the provisions of this article. Only one exemption shall
be allowed to any one person, whether he exercises one or more
privileges taxable hereunder.
§11-13-3c. Tax credit for business investment and jobs
expansion.
(a) There shall be allowed as a credit against the tax
imposed by this article, the amount determined under articlethirteen-c of this chapter, relating to tax credit for business
investment and jobs expansion.
(b) The tax commissioner shall prescribe such regulations as
he deems necessary to carry out the purposes of this section and
article thirteen-c of this chapter.
(c) Notwithstanding any provision of this code to the
contrary, no credit allowed under article thirteen-c of this
chapter may be taken against the taxes imposed by this article
for qualified investment property purchased or placed into
service or use after the thirtieth day of April, one thousand
nine hundred ninety-three.
§11-13-4. Payment of estimated tax in periodic installment
payments.
(a)
General rule. -- Every person subject to a tax imposed
by this article must make estimated tax payments for a taxable
year in which such person's tax liability can reasonably be
expected to exceed fifty dollars per month.
(b)
Small businesses. -- If a person's tax liability is
reasonably expected to be more than fifty dollars per month but
not more than one thousand dollars per month, three fourths of
such person's estimated tax liability must be remitted in
installment payments during the tax year. Installment payments
are due on the last day of the fourth, seventh and tenth months
of the tax year, for gross receipts received during the preceding
quarter of the tax year:
Provided, That any installment payment
due on the thirtieth day of June each year shall be remitted by
the fifteenth day of June. The balance of tax due must be paid
by the last day of the first month following the close of thetaxpayer's tax year.
(c)
All other taxpayers. -- If a person's tax liability can
reasonably be expected to be more than one thousand dollars per
month of the tax year, eleven twelfths of such person's estimated
tax liability must be remitted in monthly installment payments
during that tax year. Installment payments are due on the last
day of the second through the twelfth months of the tax year, for
gross receipts received during the preceding month:
Provided,
That any installment payment due on the thirtieth day of June
each year shall be remitted to the tax commissioner by the
fifteenth day of June. The balance of tax due must be paid by
the last day of the first month following the close of taxpayer's
tax year.
(d)
Remittance form. -- Each installment payment taxpayer
shall file a remittance form executed as provided in section five
of this article. This form shall be prescribed by the tax
commissioner and require such information as the commissioner
deems necessary for the efficient administration of this article.
(e)
Exception -- The above provisions of this section
notwithstanding, the tax commissioner, if he deems it necessary
to ensure payment of the tax, may require the return and payment
under this section for periods of shorter duration than those
prescribed above.
§11-13-4a. Additions to tax for underpayment of estimated tax.
(a)
General rule. -- A taxpayer must remit estimated tax
based on actual gross income received during the period to which
the installment payment relates unless taxpayer elects to use the
method set forth in subsection (b) of this section.
(1) If a person required to make quarterly installment
payments of estimated tax timely pays estimated tax during the
tax year equal to seventy-five percent or more of such person's
actual liability for that tax year, no additions to tax will be
imposed under this section for failure to timely pay estimated
tax. Estimated tax is timely paid if at least one fourth of the
tax due for the year is paid by the due date of each installment
for that year.
(2) If a person required to make monthly installment
payments of estimated tax timely pays estimated tax during the
tax year equal to eleven twelfths or more of such person's actual
tax liability for the tax year, no additions to tax will be
imposed under this section for failure to timely pay estimated
tax. Estimated tax is timely paid if at least one eleventh of
the tax due for the year is paid by the due date of each
installment for that year.
(b)
Estimated tax payments based on last year's gross
receipts. -- A taxpayer may elect to remit estimated tax for the
current tax year using the amount of gross receipts taxpayer
received during the preceding tax year, if that year was a
taxable year of twelve months and if gross receipts were received
in each of those twelve months. If this election is made, then:
(1) If a person required to make quarterly installment
payments of estimated tax timely pays estimated tax during the
tax year equal to seventy-five percent, or more, of the tax
determined using last year's measure of tax and this year's rate
of tax, no additions to tax will be imposed under this section
for failure to timely pay estimated tax. Estimated tax is timelypaid if at least one fourth is paid by the due date of each
installment for the tax year to which the installment relates.
(2) If a person required to make monthly installment
payments of estimated tax timely pays estimated tax during the
tax year equal eleven twelfths, or more, of the tax determined
using last year's measure of tax and this year's rate of tax, no
additions to tax will be imposed for failure to timely pay
estimated tax. Estimated tax is timely paid if at least one
twelfth is paid by the due date of each installment for the tax
year to which the installment relates.
(c)
Additions to tax for underpayment of estimated tax. --
If there is an underpayment of estimated tax, there shall be
added to the tax due under this article for the tax year, an
amount determined by applying the rate established under section
seventeen or seventeen-a, article ten of this chapter, as
appropriate for the tax year (and if two or more such rates
apply, the weighted average thereof), to the amount of
underpayment of estimated tax for the period of underpayment.
(d)
Period of underpayment. -- The period of underpayment of
an installment shall run from the date the installment was
required to be paid (due date) to whichever of the following
dates is the earlier:
(1) The due date of the annual return following the close of
the tax year for which the installment was due (determined
without regard to any extension of time for filing such annual
return); or
(2) With respect to any portion of the underpayment, the
date on which such portion is paid. For purposes of thissubsection, a payment of estimated tax shall be credited against
unpaid required installments in the order in which such
installments are required to be paid.
(e)
Waiver in certain cases. -- No addition to tax shall be
imposed under this section with respect to any underpayment of
estimated tax if and to the extent the tax commissioner
determines that by reason of casualty, disaster or other unusual
circumstances the imposition of such addition would be against
equity and good conscience.
(f)
Short tax years. -- This section shall apply to short
tax years under rules promulgated by the tax commissioner.
(g) Section eighteen-a, article ten of this chapter shall
not apply to the taxes imposed by this article.
§11-13-9. Tax year; methods of accounting.
(a)
Taxable year. -- For purposes of the tax imposed by this
article, a taxpayer's taxable year shall be the same as the
taxpayer's taxable year for federal income tax purposes. If
taxpayer has no taxable year for federal income tax purposes,
then the calendar year shall be taxpayer's taxable year under
this article.
(b)
Change of taxable year. -- If a taxpayer's taxable year
is changed for federal income tax purposes, taxpayer's taxable
year for purposes of this article shall be similarly changed.
The taxpayer shall provide a copy of the authorization from the
Internal Revenue Service for such change with taxpayer's annual
return for the taxable year filed under this article.
(c)
Method of accounting. --
(1)
Same as federal. -- A taxpayer's method of accountingunder this article shall be the same as the taxpayer's method of
accounting for federal income tax purposes, except as provided in
subdivision (2) of this subsection. In the absence of any method
of accounting for federal income tax purposes, the tax under this
article shall be computed under such method that in the opinion
of the tax commissioner clearly reflects such income.
(2)
Exception. -- A person taxed under this article who
provides health care items or services shall, with respect to
gross income derived from such business activity, determine such
person's tax liability using the cash method of accounting,
whether or not that method is used by such person for federal
income tax purposes, unless the tax commissioner, in writing,
consents to use another method.
(d)
Adjustments. -- In computing a taxpayer's liability for
tax for any taxable year under a method of accounting different
from the method under which the taxpayer's liability for tax
under this article for the previous year was computed, there
shall be taken into account those adjustments which are
determined, under regulations prescribed by the tax commissioner,
to be necessary solely by reason of the change in order to
prevent amounts from being duplicated or omitted.
§11-13-25. Cities, towns or villages restricted from imposing
additional tax.
Notwithstanding the provisions of section five, article
thirteen, chapter eight of this code, no city, town or village
shall impose a business and occupation tax:
(a) Upon occupations or privileges taxed under sections two-
a, two-b, two-c, two-d, two-e, two-g, two-h, two-i and two-j ofthis article, in excess of rates in effect under this article on
the first day of January, one thousand nine hundred fifty-nine;
(b) Upon occupations or privileges taxed under section two-k
of this article, in excess of one percent of gross income;
(c) Under section two-l of this article; or
(d) Upon occupations or privileges taxed under section two-m
of this article, in excess of the tax rate applicable to such
occupations or privileges under section two-b of this article on
the first day of January, one thousand nine hundred fifty-nine.
Enactment of section two-a of this article in the year one
thousand nine hundred ninety-three, shall not increase or
decrease the authority of municipalities to impose their tax on
persons exercising such privilege under their service
classification.
§11-13-27a. Crimes and penalties.
Each and every provision of the "West Virginia Tax Crimes
and Penalties Act" set forth in article nine of this chapter
shall apply to the taxes imposed by this article with like effect
as if said act were applicable only to the taxes imposed by this
article and were set forth in extenso in this article.
§11-13-28. Effective date.
This act of the Legislature shall take effect the first day
of May, one thousand nine hundred ninety-three.
§11-13-32. Dedication of tax.
(a) The amount of taxes collected under this article from
providers of health care items or services, including any
interest, additions to tax and penalties collected under article
ten of this chapter, less the amount of allowable refunds and anyinterest payable with respect to such refunds, shall be deposited
into the special revenue fund created in the state treasurer's
office and known as the medicaid tax revenue fund. Said fund
shall have separate accounting for those health care providers as
set forth in articles four-b and four-c, chapter nine of this
code.
(b) The amount of taxes collected under this article from
all other persons, including any interest, additions to tax and
penalties collected under article ten of this chapter, less the
amount of allowable refunds and any interest payable with respect
to such refunds, shall be deposited into the general revenue
fund.
ARTICLE 13A. SEVERANCE AND BUSINESS PRIVILEGE TAXES.
§11-13A-1. Short title; arrangement and classification.
This article may be cited as the "Severance and Business
Privilege Tax Act of 1993". No inference, implication or
presumption of legislative construction shall be drawn or made by
reason of the location or grouping of any particular section or
provision or portion of this article, and no legal effect shall
be given to any descriptive matter of headings relating to any
part, section, subsection, subdivision or paragraph of this
article.
§11-13A-2. Definitions.
(a)
General rule. -- When used in this article, or in the
administration of this article, the terms defined in subsection
(b), (c) or (d) shall have the meanings ascribed to them by this
section, unless a different meaning is clearly required by the
context in which the term is used, or by specific definition.
(b)
General terms defined. -- Definitions in this subsection
apply to all persons subject to the taxes imposed by this
article.
(1) "Business" includes all activities engaged in, or caused
to be engaged in, with the object of gain or economic benefit,
direct or indirect, and whether engaged in for profit, or not for
profit, or by a governmental entity:
Provided, That "business"
does not include services rendered by an employee within the
scope of his or her contract of employment. Employee services,
services by a partner on behalf of his or her partnership, and
services by a member of any other business entity on behalf of
that entity, are the business of the employer, or partnership, or
other business entity, as the case may be, and reportable as such
for purposes of the taxes imposed by this article.
(2) "Corporation" includes associations, joint-stock
companies and insurance companies. It also includes governmental
entities when and to the extent such governmental entities engage
in activities taxable under this article.
(3) "Delegate" in the phrase "or his delegate", when used in
reference to the tax commissioner, means any officer or employee
of the state 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 this article or regulations
promulgated thereunder.
(4) "Fiduciary" means and includes, a guardian, trustee,
executor, administrator, receiver, conservator or any person
acting in any fiduciary capacity for any person.
(5) "Gross proceeds" means the value, whether in money or
other property, actually proceeding from the sale or lease of
tangible personal property, or from the rendering of services,
without any deduction for the cost of property sold or leased, or
expenses of any kind.
(6) "Includes" and "including" when used in a definition
contained in this article shall not be deemed to exclude other
things otherwise within the meaning of the term being defined.
(7) "Partner" includes a member of such a syndicate, group,
pool, joint venture or other organization which is a
"partnership" as defined in this section.
(8) "Partnership" includes a syndicate, group, pool, joint
venture or other unincorporated organization through or by means
of which any privilege taxable under this article is exercised,
and which is not within the meaning of this article a trust or
estate, or corporation. "Partnership" includes a limited
liability company which is treated as a partnership for federal
income tax purposes.
(9) "Person" means any individual, partnership, association,
company, corporation or other entity engaged in activity taxable
under this article.
(10) "Sale" includes any transfer of the ownership or title
to property, whether for money or in exchange for other property
or services, or any combination thereof. "Sale" includes a lease
of property, whether the transaction be characterized as a
rental, lease, hire, bailment or license to use. "Sale" also
includes rendering services for a consideration, whether direct
or indirect.
(11) "Service" includes all activities engaged in by a
person for a consideration, which involve the rendering of a
service as distinguished from the sale of tangible personal
property:
Provided, That "service" does not include: (A) Services
rendered by an employee to his or her employer under a contract
of employment; (B) contracting; or (C) severing or processing
natural resources.
(12) "Tax" means any tax imposed by this article and, for
purposes of administration and collection of such tax, it
includes any interest, additions to tax or penalties imposed with
respect thereto under article ten of this chapter.
(13) "Tax commissioner" or "commissioner" means the tax
commissioner of the state of West Virginia, or his delegate.
(14) "Taxable year" means the calendar year, or the fiscal
year ending during such calendar year, upon the basis of which
the tax imposed by this article is computed. In the case of a
return made under this article, or regulations of the tax
commissioner, for a fractional part of a year, the term "taxable
year" means the period for which such return is made.
(15) "Taxpayer" means any person subject to any tax imposed
by this article.
(16) "This code" means the code of West Virginia, one
thousand nine hundred thirty-one, as amended.
(17) "This state" means the state of West Virginia.
(18) "Withholding agent" means any person required by law to
deduct and withhold any tax imposed by this article, or under
regulations promulgated by the tax commissioner.
(c)
Specific definitions for producers of natural resources.--
(1) "Coal" means and includes any material composed
predominantly of hydrocarbons in a solid state.
(2) "Economic interest" for the purpose of this article is
synonymous with the economic interest ownership required by
Section 611 [26 U.S.C. 611] of the Internal Revenue Code in
effect on the thirty-first day of December, one thousand nine
hundred eighty-five, entitling the taxpayer to a depletion
deduction for income tax purposes:
Provided, That a person who
only receives an arm's length royalty shall not be considered as
having an economic interest.
(3) "Extraction of ores or minerals from the ground"
includes extraction by mine owners or operators of ores or
minerals from the waste or residue of prior mining.
(4) "Gross value" in the case of natural resources means the
market value of the natural resource product, in the immediate
vicinity, where severed, determined after application of post
production processing generally applied by the industry to obtain
commercially marketable or usable natural resource products. For
all natural resources, "gross value" is to be reported as
follows:
(A) For natural resources severed or processed (or both
severed and processed) and sold during a reporting period, gross
value is the gross proceeds received or receivable by the
taxpayer.
(B) In a transaction involving related parties, gross value
shall not be less than the fair market value for natural
resources of similar grade and quality.
(C) In the absence of a sale, gross value shall be the fair
market value for natural resources of similar grade and quality.
(D) If severed natural resources are purchased for the
purpose of processing and resale, the gross value is the amount
of gross proceeds received or receivable during the reporting
period reduced by the amount paid or payable to the taxpayer
actually severing the natural resource.
(E) If natural resources are severed outside the state of
West Virginia and brought into the state of West Virginia by or
for the producer for the purpose of processing and sale, the
gross value is the amount of gross proceeds received or
receivable during the reporting period reduced by the fair market
value of natural resources of similar grade and quality and in
the same condition immediately preceding the processing of the
natural resources in this state.
(F) If severed natural resources are purchased for the
purpose of processing and consumption, the gross value is the
fair market value of processed natural resources of similar grade
and quality reduced by the amount paid or payable to the taxpayer
actually severing the natural resource. If severed natural
resources are severed outside the state of West Virginia and
brought into the state of West Virginia by the taxpayer for the
purpose of processing and consumption, the gross value is the
fair market value of processed natural resources of similar grade
and quality reduced by the fair market value of natural resources
of similar grade and quality and in the same condition
immediately preceding the processing of the natural resources.
(G) In all instances, the gross value shall not be reducedby any state or federal taxes, royalties, sales commissions or
any other expense.
(H) For natural gas, gross value is the value of the natural
gas at the wellhead immediately preceding transportation and
transmission.
(I) For limestone or sandstone quarried or mined, gross
value is the value of such stone immediately upon severance from
the earth.
(5) "Mining" includes not merely the extraction of ores or
minerals from the ground but also those treatment processes
necessary or incidental thereto.
(6) "Natural resources" means all forms of minerals
including, but not limited to, rock, stone, limestone, coal,
shale, gravel, sand, clay, natural gas, oil and natural gas
liquids which are contained in or on the soils or waters of this
state, and includes standing timber.
(7) "Processed" or "processing" as applied to:
(A) Oil and natural gas shall not include any conversion or
refining process; and
(B) Limestone or sandstone quarried or mined shall not
include any treatment process or transportation after the
limestone or sandstone is severed from the earth.
(8) "Related parties" means two or more persons,
organizations or businesses owned or controlled directly or
indirectly by the same interests. Control exists if a contract
or lease, either written or oral, is entered into whereby one
party mines or processes natural resources owned or held by
another party and the owner or lessor participates in thesevering, processing or marketing of the natural resources or
receives any value other than an arm's length passive royalty
interest. In the case of related parties, the tax commissioner
may apportion or allocate the receipts between or among such
persons, organizations or businesses if he determines that such
apportionment or allocation is necessary to more clearly reflect
gross value.
(9) "Severing" or "severed" means the physical removal of
the natural resources from the earth or waters of this state by
any means:
Provided, That "severing" or "severed" shall not
include the removal of natural gas from underground storage
facilities into which the natural gas has been mechanically
injected following its initial removal from earth:
Provided,
however, That "severing" or "severed" oil and natural gas shall
not include any separation process of oil or natural gas commonly
employed to obtain marketable natural resource products.
(10) "Stock" includes shares in an association, joint-stock
company or corporation.
(11) "Taxpayer" means and includes any individual,
partnership, joint venture, association, corporation, receiver,
trustee, guardian, executor, administrator, fiduciary or
representative of any kind engaged in the business of severing or
processing (or both severing and processing) natural resources in
this state for sale or use. In instances where contracts (either
oral or written) are entered into whereby persons, organizations
or businesses are engaged in the business of severing or
processing (or both severing and processing) a natural resource
but do not obtain title to or do not have an economic interesttherein, the party who owns the natural resource immediately
after its severance or has an economic interest therein is the
taxpayer.
(d)
Specific definitions for persons providing health care
items or services. --
(1) "Behavioral health center" means behavioral health
center as defined in section one, article two-a, chapter twenty-
seven of said code or section one, article nine of said chapter.
(2) "Community care provider" means a provider of home and
community care services furnished pursuant to an individual plan
of care which also includes senior citizens groups which provide
said services but does not include home health agencies.
(3) "Ambulance or ambulance services" means ambulance or
ambulance services as defined in section three, article four-c,
chapter sixteen of this code.
§11-13A-3. Privilege of severing certain natural resources and
furnishing certain health care items or services.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of severing,
extracting, reducing to possession and producing for sale, profit
or commercial use coal, limestone, sandstone, natural gas or oil,
or in the business of furnishing certain health care services and
not taxed under articles thirteen and twenty-seven of this
chapter, there is hereby levied and shall be collected from every
person exercising such privilege an annual privilege tax.
(b)
Rate and measure of tax. -- The tax imposed in
subsection (a) of this section shall be five percent of the gross
value of the natural resource produced or the health care serviceprovided, as shown by the gross income derived from the sale
thereof by the producer or the provider of the health care
service, except as otherwise provided in this article. In the
case of coal, this five percent rate of tax includes the thirty-
five one hundredths of one percent additional severance tax on
coal imposed by the state for the benefit of counties and
municipalities as provided in section six of this article.
(c)
"Certain health care services" defined. -- For purposes
of this section, the term "certain health care services" means,
and is limited to, health care transportation, behavioral health
centers and community care providers.
(d)
Tax in addition to other taxes. -- The tax imposed by
this section, shall apply to all persons severing or processing
(or both severing and processing) in this state natural resources
enumerated in subsection (a) of this section, and to all persons
providing certain health care services in this state as
enumerated in subsection (c) of this section, except as provided
in subsection (a) of this section, and shall be in addition to
all other taxes imposed by law.
(e)
Effective date. -- This section as amended in the year
one thousand nine hundred ninety-three, shall apply to gross
proceeds received after the thirtieth day of April of such year.
The language of section three of this article, as in effect on
the first day of January of such year, shall apply to gross
proceeds received prior to the first day of May of such year and,
with respect to such gross proceeds shall be fully and completely
preserved.
§11-13A-3a. Privilege of severing timber.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of severing timber
for sale, profit or commercial use, there is hereby levied and
shall be collected from every person exercising such privilege an
annual privilege tax.
(b)
Rate and measure of tax. -- The tax imposed in
subsection (a) of this section shall be three and twenty-two
hundredth percent of the gross value of the timber produced, as
shown by the gross proceeds derived from the sale thereof by the
producer, except as otherwise provided in this article.
(c)
Tax in addition to other taxes. -- The tax imposed by
this section shall apply to all persons severing timber in this
state, and shall be in addition to all other taxes imposed by
law.
(d)
Effective date. -- This section as amended in the year
one thousand nine hundred ninety-three, shall apply to gross
proceeds received after the thirtieth day of April of such year.
The language of section three of this article, as in effect on
the first day of January of such year, shall apply to gross
proceeds received prior to the first day of May of such year and,
with respect to such gross proceeds shall be fully and completely
preserved.
§11-13A-3b. Privilege of severing other natural resources.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of severing,
extracting, reducing to possession and producing for sale, profit
or commercial use any other natural resource product or product
not taxed under section three or four of this article, there ishereby levied and shall be collected from every person exercising
this privilege and annual privilege tax.
(b)
Rate and measure of tax. -- The tax imposed in
subsection (a) of this section shall be four percent of the gross
value of the natural resource produced, as shown by the gross
proceeds derived from the sale thereof by producer, except as
otherwise provided in this article:
Provided, That beginning the
first day of July, one thousand nine hundred ninety-three, the
tax imposed by this section shall be levied and collected at the
rate of four and one-half percent, and beginning the first day of
July, one thousand nine hundred ninety-four, the tax imposed by
this section shall be levied and collected at the rate of five
percent.
(c)
Tax in addition to other taxes. -- The tax imposed by
this section shall apply to all persons severing timber in this
state, and shall be in addition to all other taxes imposed by
law.
(d)
Effective date. -- This section as amended in the year
one thousand nine hundred ninety-three, shall apply to gross
proceeds received after the thirtieth day of April of such year.
The language of this section as in effect on the first day of
January of such year, shall apply to gross proceeds received
prior to the first day of May of such year and, with respect to
such gross proceeds shall be fully and completely preserved
.
§11-13A-7. Accounting periods and methods of accounting.
(a)
General rule. -- For purposes of the taxes imposed by
this article, a taxpayer's taxable year shall be the same as the
taxpayer's taxable year for federal income tax purposes. Iftaxpayer has no taxable year for federal income tax purposes,
then the calendar year shall be taxpayer's taxable year under
this article.
(b)
Change of taxable year. -- If a taxpayer's taxable year
is changed for federal income tax purposes, taxpayer's taxable
year for purposes of this article shall be similarly changed.
The taxpayer shall provide a copy of the authorization from the
Internal Revenue Service for such change with taxpayer's annual
return for the taxable year filed under this article.
(c)
Methods of accounting. --
(1)
Same as federal. -- A taxpayer's method of accounting
under this article shall be the same as the taxpayer's method of
accounting for federal income tax purposes, except as provided in
subdivision (2) of this subsection. In the absence of any method
of accounting for federal income tax purposes, the accrual method
of accounting shall be used, except as provided in said
subdivision, unless the tax commissioner, in writing, consents to
use of another method.
(2)
Exception. -- A person taxable under this article who
provides health care items or services shall, with respect to
gross proceeds derived from such business activity, determine
such person's tax liability using the cash method of accounting,
whether or not that method is used by such person for federal
income tax purposes, unless the tax commissioner, in writing,
consents to use of another method.
(3)
Change of accounting methods. -- If a taxpayer's method
of accounting is changed for federal income tax purposes, the
taxpayer's method of accounting for purposes of this articleshall similarly be changed, except as provided in subdivision (2)
of this subsection. The taxpayer shall provide a copy of the
authorization for such change from the Internal Revenue Service
with its annual return for the taxable year filed under this
article.
§11-13A-8. Time for filing annual returns and other documents.
On or before the expiration of one month after the end of
the taxable year, every taxpayer subject to a tax imposed by this
article shall make and file an annual return for the entire
taxable year showing such information as the tax commissioner may
require and computing the amount of taxes due under this article
for the taxable year. Returns made on the basis of a calendar
year shall be filed on or before the thirty-first day of January
following the close of the calendar year. Returns made on the
basis of a fiscal year shall be filed on or before the last day
of the first month following the close of the fiscal year.
§11-13A-9. Payment of estimated tax in periodic installment
payments.
(a)
General rule. -- Every person subject to a tax imposed
by this article must make estimated tax payments for a taxable
year in which such person's tax liability can reasonably be
expected to exceed fifty dollars per month.
(b)
Small businesses. -- If a person's tax liability is
reasonably expected to be more than fifty dollars per month but
not more than one thousand dollars per month, three fourths of
such person's estimated tax liability must be remitted in
installment payments during the tax year. Installment payments
are due on the last day of the fourth, seventh and tenth monthsof the tax year, for gross receipts received during the preceding
quarter of the tax year:
Provided, That any installment payment
due on the thirtieth day of June each year shall be remitted by
the fifteenth day of June. The balance of tax due must be paid
by the last day of the first month following the close of the
taxpayer's tax year.
(c)
All other taxpayers. -- If a person's tax liability can
reasonably be expected to be more than one thousand dollars per
month of the tax year, eleven twelfths of such person's estimated
tax liability must be remitted in monthly installment payments
during that tax year. Installment payments are due on the last
day of the second through the twelfth months of the tax year for
gross receipts received during the preceding month:
Provided,
That any installment payment due on the thirtieth day of June
each year shall be remitted to the tax commissioner by the
fifteenth day of June. The balance of tax due must be paid by
the last day of the first month following the close of taxpayer's
tax year.
(d)
Remittance form. -- Each installment payment taxpayer
shall file a remittance form as shall be prescribed by the tax
commissioner and require such information as the commissioner
deems necessary for the efficient administration of this article.
(e)
Exception. -- Notwithstanding the provisions of
subsections (a) and (b) of this section, the tax commissioner, if
the commissioner deems it necessary to ensure payment of the tax,
may require the return and payment under this section for periods
of shorter duration than those required in subsection (a), (b) or
(c) of this section.
§11-13A-10. Time for paying tax; annual tax credit.
(a)
General rule. -- A person required to make an annual
return under this article shall pay to the tax commissioner any
tax shown to be due by such return, without assessment, notice or
demand to the tax commissioner on or before the date fixed for
filing the annual return (determined without regard to any
extension of time for filing the return).
(b)
Credit. -- Every taxpayer subject to any tax imposed by
this article shall be allowed one annual credit of five hundred
dollars against the taxes due under this article, to be applied
at the rate of forty-one dollars and sixty seven cents per month
for each month the taxpayer was engaged in business in this state
exercising a privilege taxable under this article. Persons
providing health care items or services who become subject to a
tax imposed by this article beginning on the first day of May,
one thousand nine hundred ninety-three, shall be allowed a
proportional credit under this subsection for months in their tax
year that begin on or after the first day of May, one thousand
nine hundred ninety-three.
§11-13A-11. Extension of time for filing returns and other
documents.
The tax commissioner may, upon written request received on
or prior to the due date of the annual return or other document,
grant a reasonable extension of time for filing any return or
other document required by this article, upon such terms as the
commissioner may by regulation prescribe, or by contract require,
if good cause satisfactory to the tax commissioner is provided by
the taxpayer. No such extension shall be for more than sixmonths.
§11-13A-12. Extension of time for paying tax.
(a)
Amount determined on return. -- The tax commissioner may
extend the time for payment of the amount of tax shown, or
required to be shown, on any return required by this article (or
any periodic installment payment), for a reasonable period not to
exceed six months from the date fixed by statute for the payment
thereof.
(b)
Amount determined as deficiency. -- Under regulations
prescribed by the tax commissioner, the commissioner may extend
the time for payment of the amount determined as a deficiency of
the taxes imposed by this article for a period not to exceed
eighteen months from the due date 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 where it is shown to the satisfaction of the tax
commissioner that payment of a deficiency upon the date fixed for
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 if the
deficiency is due to negligence, to intentional disregard of
rules and regulations, or to fraud with intent to evade tax.
§11-13A-13. Place for filing returns and other documents.
Tax returns, statements or other documents, or copies
thereof, required by this article or by regulations shall be
filed with the tax commissioner by delivery in person, or by mail
postage prepaid, to the tax commissioner's office in Charleston,
West Virginia:
Provided, That the tax commissioner may, byregulation, prescribe the place for filing such returns,
statements or other documents, or copies thereof.
§11-13A-19. General procedure and administration.
Each and every provision of the "West Virginia Tax Procedure
and Administration Act" set forth in article ten of this chapter
shall apply to the taxes imposed by this article, except as
otherwise expressly provided in this article, with like effect as
if said act were applicable only to the taxes imposed by this
article and were set forth in extenso in this article.
§11-13A-20. Crimes and penalties.
Each and every provision of the "West Virginia Tax Crimes
and Penalties Act" set forth in article nine of this chapter
shall apply to the taxes imposed by this article with like effect
as if said act were applicable only to the taxes imposed by this
article and were set forth in extenso in this article.
§11-13A-20a. Dedication of tax.
(a) The amount of taxes collected under this article from
providers of health care items or services, including any
interest, additions to tax and penalties collected under article
ten of this chapter, less the amount of allowable refunds and any
interest payable with respect to such refunds, shall be deposited
into the special revenue fund created in the state treasurer's
office and known as the medicaid tax revenue fund. Said fund
shall have separate accounting for those health care providers as
set forth in articles four-b and four-c, chapter nine of this
code.
(b) The amount of taxes collected under this article from
all other persons, including any interest, additions to tax andpenalties collected under article ten of this chapter, less the
amount of allowable refunds and any interest payable with respect
to such refunds, shall be deposited into the general revenue
fund.
§11-13A-21. Severability.
If any provision of this article or the application thereof
shall for any reason be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect,
impair or invalidate the remainder of said article, but shall be
confined in its operation to the provision thereof directly
involved in the controversy in which such judgment shall have
been rendered, and the applicability of such provision to other
persons or circumstance shall not be affected thereby.
§11-13A-25. Effective date.
This act of the Legislature shall take effect the first day
of May, one thousand nine hundred ninety-three.
ARTICLE 26. HEALTH CARE PROVIDER MEDICAID TAX.
§11-26-20. Transition rules; effective date.
(a) The tax imposed by this article shall not apply to
medicaid reimbursement payments received by health care providers
after the thirtieth day of April, one thousand nine hundred
ninety-three, as amended.
(b) All persons subject to the tax imposed by this article
prior to the first day of May, one thousand nine hundred
ninety-three, shall make and file a final return with the tax
commissioner on or before the last day of May, one thousand nine
hundred ninety-three, reporting such information as the tax
commissioner may require. With this return, shall be remittedthe balance of any tax due under this article with respect to
medicaid reimbursement payments received before the said first
day of May.
(c) When a health care provider bills the department of
health and human resources before the first day of June, one
thousand nine hundred ninety-three, for medicaid services
rendered before the first day of May, one thousand nine hundred
ninety-three, the secretary is directed to reimburse the health
care provider using the appropriate fee schedule in effect at the
time the medicaid service was rendered. If a health care
provider bills the department of health and human resources after
the thirty-first day of May, one thousand nine hundred
ninety-three, for services rendered before the first day of May,
one thousand nine hundred ninety-three, the amount of the
reimbursement payment shall be determined based upon fee
schedules in effect on the thirty-first day of December, one
thousand nine hundred ninety-one, or, funds permitting and in the
discretion of the secretary, under fee schedules in effect when
the department receives the bill for medicaid services.
(d) Any medicaid tax owed to the tax commissioner which is
not remitted by the first day of June, one thousand nine hundred
ninety-three, becomes delinquent as of the second day of June,
one thousand nine hundred ninety-three, notwithstanding any
provision of this article or article ten of this chapter to the
contrary. Any delinquent medicaid taxes shall be remitted to the
tax commissioner by the fifteenth day of June, one thousand nine
hundred ninety-three.
(e) Any person required to pay medicaid tax under thisarticle who fails to pay the amount due by the fifteenth day of
June, one thousand nine hundred ninety-three, shall be subject to
a civil penalty equal to two hundred percent of the delinquent
medicaid tax owed by such person.
(f) The provisions of this section shall take effect on the
first day of May, one thousand nine hundred ninety-three.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-1. Legislative findings.
The Legislature finds and declares that:
(a) Medicaid provides access to basic medical care for our
citizens who are not physically, mentally or economically able to
provide for their own care.
(b) Inadequate compensation of health care providers
rendering medicaid services is a barrier to indigent persons
obtaining access to health care services.
(c) Without adequate compensation for the provision of
medicaid services, this state cannot attract or retain a
sufficient number of health care providers necessary to serve our
indigent population.
(d) While participation by a state in the medicaid program
created by Title XIX of the Social Security Act is voluntary, the
reality is that states, and particularly this state, have no
choice but to participate. The alternative is to deprive
indigent citizens and particularly the children of indigent
families of basic medical services.
(e) The federal government sets the criteria for eligibility
to obtain medicaid services. The federal government also
requires that certain services be provided as part of a state'smedicaid program.
(f) Enactment by the United States Congress in 1991 of
Public Law 102-234, amending Section 1903 of the Social Security
Act, places limitations and restrictions on the flexibility
states have to raise state share for its medical assistance
program.
(g) The tax enacted in this article is intended to conform
with the requirements of Public Law 105-234.
§11-27-2. Short title; arrangement and classification.
This article may be cited as the "West Virginia Health Care
Provider Tax Act of 1993". No inference, implication or
presumption of legislative construction shall be drawn or made by
reason of the location or grouping of any particular section,
provision or portion of this article. No legal effect shall be
given to any descriptive matter or heading relating to any part,
section, subdivision or paragraph of this article.
§11-27-3. Definitions.
(a)
General. -- When used in this article, words defined in
subsection (b) of this section have the meaning ascribed to them
in this section, except in those instances where a different
meaning is distinctly expressed or the context in which the word
is used clearly indicates that a different meaning is intended.
(b)
Definitions. --
(1) "Business" includes all health care activities engaged
in, or caused to be engaged in, with the object of gain or
economic benefit, direct or indirect, and whether engaged in for
profit, or not for profit, or by a governmental entity:
Provided, That "business" does not include services rendered byan employee within the scope of his or her contract of
employment. Employee services, services by a partner on behalf
of his or her partnership, and services by a member of any other
business entity on behalf of that entity, are the business of the
employer, or partnership, or other business entity, as the case
may be, and reportable as such for purposes of the taxes imposed
by this article.
(2) "Broad-based health care related tax" means a broad-
based health care related tax as defined in Section 1903 of the
Social Security Act.
(3) "Contractual allowances" means gross patient revenues
less the actual amount received from third party payors.
(4) "Corporation" includes associations, joint-stock
companies and insurance companies. It also includes governmental
entities when and to the extent such governmental entities
engaged in activities taxable under this article.
(5) "Gross patient revenues" means the value, at the
provider's full established rate, or services rendered and goods
sold to patients during a given time period.
(6) "Gross receipts" means and includes the gross receipts
of a taxpayer received as compensation, in whole or in part, from
taxpayer's exercise of the privilege taxable under this article,
whether such compensation is received in money or any other form
of consideration, without deduction for any expenses or other
costs incurred in exercising the taxable privilege.
(7) "Includes" and "including" when used in a definition
contained in this article shall not be deemed to exclude other
things otherwise within the meaning of the term being defined.
(8) "Inpatient hospital services" means those services that
are inpatient hospital services for purposes of Section 1903(w)
of the Social Security Act.
(9) "Intermediate care facility services for the mentally
retarded" means those services that are intermediate care
facility services for purposes of Section 1903(w) of the Social
Security Act.
(10) "Nursing facility services" means those services that
are nursing facility services for purposes of Section 1903(w) of
the Social Security Act.
(11) "Outpatient hospital services" means those services
that are outpatient hospital services for purposes of Section
1903(w) of the Social Security Act.
(12) "Partner" includes a member in a "partnership", as
defined in this section.
(13) "Partnership" includes a syndicate, group, pool, joint
venture or other unincorporated organization through or by means
of which any privilege taxable under this article is exercised,
and which is not within the meaning of this article a trust or
estate or corporation.
(14) "Person" means any individual, partnership,
association, company, corporation or other entity providing
services.
(15) "Physicians' services" means those services of a
physician that are physicians' services for purposes of Section
1903(w) of the Social Security Act.
(16) "Social Security Act" means the Social Security Act of
the United States, as amended by Public Law 102-234, and codifiedin Title 42, Section 1396b of the United States Code.
(17) "Tax" means any tax imposed by this article and, for
purposes of administration and collection of such tax, includes
any interest, additions to tax or penalties imposed with respect
thereto under article ten of this chapter.
(18) "Taxable year" means the calendar year, or the fiscal
year ending during such calendar year, upon the basis of which
the tax imposed by this article is computed. In the case of a
return made under this article, or regulations of the tax
commissioner, for a fractional part of a year, the term taxable
year means the period for which such return is made.
(19) "Taxpayer" means any person subject to any tax imposed
by this article.
(20) "Code" means the code of West Virginia, one thousand
nine hundred thirty-one, as amended.
(21) "State" means the state of West Virginia.
(22) "Withholding agent" means any person required to deduct
and withhold the tax imposed by this article under regulations
promulgated by the tax commissioner.
§11-27-4. Imposition of tax on providers of inpatient hospital
services.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of providing
inpatient hospital services, there is hereby levied and shall be
collected from every person rendering such service an annual
broad-based health care related tax.
(b)
Rate and measure of tax. -- The tax imposed in
subsection (a) of this section shall be two and one-half percentof the gross receipts, excluding medicare revenues, received by
the taxpayer during the taxable year from rendering inpatient
hospital services. This measure of tax shall be determined using
the cash method of accounting.
(c)
Effective date. -- The tax imposed by this section shall
apply to gross receipts received after the thirtieth day of
April, one thousand nine hundred ninety-three, regardless of when
the transaction or activity generating the gross receipts
occurred.
§11-27-5. Imposition of tax on providers of outpatient hospital
services.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of providing
outpatient hospital services, there is hereby levied and shall be
collected from every person rendering such service an annual
broad-based health care related tax.
(b)
Rate and measure of tax. -- The tax imposed in
subsection (a) of this section shall be two and one-half percent
of the gross receipts, excluding medicare revenues, received by
the taxpayer during the taxable year from rendering outpatient
hospital services. This measure of tax shall be determined using
the cash method of accounting.
(c)
Effective date. -- The tax imposed by this section shall
apply to gross receipts received after the thirtieth day of
April, one thousand nine hundred ninety-three, regardless of when
the transaction or activity generating the gross receipts
occurred.
§11-27-6. Imposition of tax on providers of nursing facility
services other than services of intermediate care facilities
for the mentally retarded.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of providing nursing
facility services (other than services of intermediate care
facilities for the mentally retarded), there is hereby levied and
shall be collected, from every person rendering such service an
annual broad-based health care related tax.
(b)
Rate and measure of tax. --
The tax imposed in
subsection (a) of this section shall be five and one-half percent
of the gross patient revenues, excluding medicare revenues, prior
to contractual allowances, derived by the taxpayer during the
taxable year from providing nursing facility services, other than
services of intermediate care facilities for the mentally
retarded. This measure of tax shall be determined using the
accrual method of accounting.
(c)
Effective date. --
The tax imposed by this section shall
apply to gross patient revenues received after the thirtieth day
of April, one thousand nine hundred ninety-three, regardless of
when the transaction or activity generating the gross receipts
occurred.
§11-27-7. Imposition of tax on providers of intermediate care
facility services for the mentally retarded.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of providing
intermediate care facility services for the mentally retarded,
there is hereby levied and shall be collected, from every person
rendering such service, an annual broad-based health care relatedtax.
(b)
Rate and measure of tax. --
The tax imposed in
subsection (a) of this section shall be five and one-half percent
of the gross receipts derived by the taxpayer during the taxable
year from providing intermediate care facility services for the
mentally retarded. This measure of tax shall be determined using
the cash method of accounting.
(c)
Effective date. --
The tax imposed by this section shall
apply to gross receipts received after the thirtieth day of
April, one thousand nine hundred ninety-three, regardless of when
the transaction or activity generating the gross receipts
occurred.
§11-27-8. Imposition of tax on providers of physicians' services.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of providing
physicians' services, there is hereby levied and shall be
collected from every person rendering such service an annual
broad-based health care related tax.
(b)
Rate and measure of tax. -- The tax imposed in
subsection (a) of this section shall be two percent of the gross
receipts, excluding medicare revenues, derived by the taxpayer
during the taxable year from rendering physicians' services.
This measure of tax shall be determined using the cash method of
accounting.
(c)
Effective date. -- The tax imposed by this section shall
apply to gross receipts received after the thirtieth day of
April, one thousand nine hundred ninety-three, regardless of when
the transaction or activity giving rise to the gross receiptsoccurred.
§11-27-9. Apportionment of gross receipts.
When a service is rendered partially in this state and
partially in another state, gross receipts attributable to such
service shall be allocated or apportioned in accordance with
uniform rules promulgated by the tax commissioner.
§11-27-10. Accounting periods and methods of accounting.
(a)
General rule. -- For purposes of the tax imposed by this
article, a taxpayer's taxable year shall be the same as
taxpayer's taxable year for federal income tax purposes. If
taxpayer has no taxable year for federal income tax purposes,
then the calendar year shall be taxpayer's taxable year under
this article.
(b)
Change of taxable year. -- If a taxpayer's taxable year
is changed for federal income tax purposes, taxpayer's taxable
year for purposes of this article shall be similarly changed.
The taxpayer shall be provided a copy of the authorization from
the Internal Revenue Service for such change with taxpayer's
annual return for the taxable year filed under this article.
(c)
Cash method of accounting required. -- A taxpayer's
method of accounting under this article shall be the cash method
of accounting, whether or not taxpayer uses that method of
accounting for federal income tax purposes.
§11-27-11. Time for filing returns and other documents.
(a)
Annual return. -- Every person subject to a tax imposed
by this article shall file an annual return with the tax
commissioner. Returns made on the basis of a calendar year shall
be filed on or before the thirty-first day of January followingthe close of the calendar year. Returns made on the basis of a
fiscal year shall be filed on or before the last day of the first
month following the close of the fiscal year.
(b)
Extension of time for filing return. -- The tax
commissioner may, upon written request received on or before the
due date of the annual return or other document, grant a
reasonable extension of time for filing any return, declaration
or statement, or other document required to be filed by this
article or by regulations, upon such terms as the commissioner
may by rule prescribe, or by contract require, if good cause
satisfactory to the tax commissioner is provided by the taxpayer.
No such extension shall be for more than six months.
§11-27-12. Payment of estimated tax; withholding.
(a)
General rule. -- Every person subject to a tax imposed
by this article must make estimated tax payments for a taxable
year in which such person's tax liability can reasonably be
expected to exceed fifty dollars per month.
(b)
Small businesses. -- If a person's tax liability is
reasonably expected to be more than fifty dollars per month but
not more than one thousand dollars per month, three fourths of
such person's estimated tax liability must be remitted in
installment payments during the tax year. Installment payments
are due on the fifteenth day of the fourth, seventh and tenth
months of the tax year, for gross receipts received during the
preceding quarter of the tax year. The balance of tax due must
be paid by the last day of the first month following the close of
the taxpayer's tax year.
(c)
All other taxpayers. -- If a person's tax liability canreasonably be expected to be more than one thousand dollars per
month of the tax year, eleven twelfths of such person's estimated
tax liability must be remitted in monthly installment payments
during that tax year. Installment payments are due on the
fifteenth day of the second through the twelfth months of the tax
year for gross receipts received during the preceding month. The
balance of tax due must be paid by the last day of the first
month following the close of taxpayer's tax year.
(d)
Withholding. -- The tax commissioner may establish, by
procedural rule, a program for the withholding of any tax imposed
by this article from medicaid reimbursement payments made to such
health care providers by the department of health and human
resources, or by any other state agency. The percentage of tax
withheld shall be uniform as to all persons who pay any tax
imposed by this article, but the percentage may vary from tax to
tax as long as all persons who pay a particular tax are treated
alike for purposes of that tax. In no case shall the percentage
of withholding for a tax imposed by this article exceed that
percentage of medicaid reimbursement payments generally paid to
that class of health care provider which represents the state
revenue portion of such reimbursement payments.
§11-27-13. Additions to tax for underpayment of estimated tax.
(a)
General rule. -- A taxpayer must remit estimated tax
based on actual gross income received during the period to which
the installment payment relates unless taxpayer elects to use the
method set forth in subsection (b) of this section.
(1) If a person required to make quarterly installment
payments of estimated tax timely pays estimated tax during taxyear equal to seventy-five percent or more of such person's
actual liability for that tax year, no additions to tax will be
imposed under this section for failure to pay estimated tax.
Estimated tax is timely paid if at least one fourth of the tax
due for the year is paid by the due date of each installment for
that year.
(2) If a person required to make monthly installment
payments of estimated tax timely pays estimated tax during the
tax year equal to eleven twelfths or more of such person's actual
tax liability for the taxable year, no additions to tax will be
imposed under this section for failure to timely pay estimated
tax. Estimated tax is timely paid if at least one eleventh of
the tax due for the year is paid by the due date of each
installment for that year.
(b)
Estimated tax payments based on last year's gross
receipts. -- A taxpayer may elect to remit estimated tax for the
current tax year using the amount of gross receipts taxpayer
received during the preceding tax year, if that year was a
taxable year of twelve months and if gross receipts were received
in each of those twelve months. If this election is made, then:
(1) If a person required to make quarterly installment
payments of estimated tax timely pays estimated tax during the
tax year equal to seventy-five percent, or more, of the tax
determined using last year's gross receipts and this year's rate
of tax, no additions to tax will be imposed under this section
for failure to timely pay estimated tax. Estimated tax is timely
paid if at least one fourth is paid by the due date of each
installment for the tax year to which the installment relates.
(2) If a person required to make monthly installment
payments of estimated tax timely pays estimated tax during the
tax year equal eleven twelfths, or more, of the tax determined
using last year's gross receipts and this year's rate of tax, no
additions to tax will be imposed for failure to timely pay
estimated tax. Estimated tax is timely paid if at least one
twelfth is paid by the due date of each installment for the tax
year to which the installment relates.
(c)
Addition to tax for underpayment of estimated tax. -- If
there is an underpayment of estimated tax, there shall be added
to the tax due under this article for the tax year, an amount
determined by applying the rate established under section
seventeen or seventeen-a, article ten of this chapter, as
appropriate for the tax year (and if two or more such rates
apply, the weighted average thereof), to the amount of
underpayment of estimated tax for the period of underpayment.
(d)
Period of underpayment. -- The period of underpayment of
an installment shall run from the date the installment was
required to be paid (due date) to whichever of the following
dates is the earlier:
(1) The due date of the annual return following the close of
the tax year for which the installment was due (determined
without regard to any extension of time for filing such annual
return); or
(2) With respect to any portion of the underpayment, the
date on which such portion is paid. For purposes of this
subdivision, a payment of estimated tax shall be credited against
unpaid required installments in the order in which suchinstallments are required to be paid.
(e)
Application when tax is withheld. -- For purposes of
applying this section, the amount of any tax imposed by this
article that is withheld from taxpayer pursuant to section twelve
of this article, shall be deemed a payment of estimated tax, and
an equal part of such amount shall be deemed a payment of
estimated tax on each installment payment due date, unless
taxpayer establishes the specific dates on which all amounts were
actually withheld, in which case the amounts so withheld shall be
deemed payments of estimated tax on the dates on which such
amounts were actually withheld.
(f)
Waiver in certain cases. -- No addition to tax shall be
imposed under this section with respect to any underpayment of
estimated tax if and to the extent the tax commissioner
determines that by reason of casualty, disaster or other unusual
circumstances the imposition of such addition would be against
equity and good conscience.
(g)
Short tax years. -- This section shall apply to short
tax years under rules promulgated by the tax commissioner.
(h) Section eighteen-a, article ten of this chapter shall
not apply to the taxes imposed by this article.
§11-27-14. Time for paying tax.
(a)
General rule. -- The person required to make an annual
return under this article shall, without assessment or notice and
demand from the tax commissioner, pay such tax at the time and
place fixed for filing the annual return, determined without
regard to any extension of time for filing such return.
(b)
Extension of time for paying tax. -- The taxcommissioner may extend the time for payment of the amount of tax
shown, or required to be shown, on any annual return required by
this article (or any periodic installment payment), for a
reasonable period not to exceed six months from the date fixed by
statute for the payment thereof.
(c)
Amount determined as deficiency. -- Under rules
prescribed by the tax commissioner, the commissioner may extend
the time for payment of the amount determined as a deficiency of
the taxes imposed by this article for a period not to exceed
eighteen months from the due date of the deficiency. In
exceptional cases, a further period of time, not to exceed twelve
months may be granted. The tax commissioner may grant an
extension of time under this subsection only where it is shown to
the tax commissioner's satisfaction that payment of a deficiency
upon the date fixed for payment thereof will result in undue
hardship to the taxpayer.
(d)
No extension in certain circumstances. -- The tax
commissioner may not grant an extension of time under this
section if the failure to timely pay tax, or if the deficiency in
payment of tax, is due to negligence, to intentional disregard of
rules or regulations, or to fraud.
§11-27-15. Place for filing returns and other documents.
Tax returns, statements or other documents, or copies
thereof, required by this article or by rules shall be filed with
the tax commissioner by delivery, in person or by mail, postage
prepaid, to the tax commissioner's office in Charleston, West
Virginia:
Provided, That the tax commissioner may, by rule,
prescribe the place for filing such returns, statements or otherdocuments, or copies thereof, at one or more other locations.
§11-27-16. Signing of returns and other documents.
(a)
General. -- Any return, statement or other document
required to be made under the provisions of this article shall be
signed in accordance with instructions or regulations prescribed
by the tax commissioner.
(b)
Signing of corporation returns. -- The president, vice
president, treasurer, assistant treasurer, chief accounting
officer or any other duly authorized officer shall sign the
return of a corporation. In the case of a return made for a
corporation by a fiduciary, the fiduciary shall sign the return.
The fact that an individual's name is signed on the return is
prima facie evidence that the individual is authorized to sign
the return on behalf of the corporation.
(c)
Signing of partnership returns. -- Any one of the
partners shall sign the return of a partnership. The fact that
a partner's name is signed on the return is prima facie evidence
that that partner is authorized to sign the return on behalf of
the partnership.
(d)
Signature presumed authentic. -- The fact that an
individual's name is signed to a return, statement or other
document is prima facie evidence for all purposes that the
return, statement or other document was actually signed by him or
her.
(e)
Verification of returns. -- Except as otherwise provided
by the tax commissioner, any return, declaration or other
document required to be made under this article shall contain or
be verified by a written declaration that it is made under thepenalties of perjury.
§11-27-17. Records.
(a) Every person liable for reporting or paying any tax
under this article shall keep such records, receipts, invoices
and other pertinent papers in such forms as the tax commissioner
may require.
(b) Every person liable for reporting or paying any tax
under this article shall keep such records for not less than
three years after the annual return required under this article
is filed, unless the tax commissioner, in writing, authorizes
their earlier destruction. An extension of time for making an
assessment shall automatically extend the time period for keeping
the records for all years subject to audit covered in the
agreement for extension of time.
§11-27-18. General procedure and administration.
Each and every provision of the "West Virginia Tax Procedure
and Administration Act" set forth in article ten of this chapter
applies to the taxes imposed by this article, except as otherwise
expressly provided in this article, with like effect as if that
act were applicable only to the taxes imposed by this article and
were set forth in extenso in this article.
§11-27-19. Crimes and penalties.
Each and every provision of the "West Virginia Tax Crimes
and Penalties Act" set forth in article nine of this chapter
applies to the taxes imposed by this article with like effect as
if that act were applicable only to the taxes imposed by this
article and were set forth in extenso in this article.
§11-27-20. Dedication of tax.
The amount of taxes collected under this article including
any interest, additions to tax and penalties collected under
article ten of this chapter, less the amount of allowable refunds
and any interest payable with respect to such refunds, shall be
deposited into the special revenue fund created in the state
treasurer's office and known as the medicaid tax revenue fund.
Said fund shall have separate accounting for those health care
providers as set forth in articles four-b and four-c, chapter
nine of this code.
§11-27-21. Abrogation.
This tax abrogates and is of no further force and effect,
without any further action by the Legislature, upon the earliest
of the following dates:
(a) The date upon which an act of Congress becomes effective
which prohibits the inclusion of revenue from these broad-based
health care related taxes in state share when obtaining matching
federal dollars:
Provided, That: (A) If such act specifies a
later date on which such prohibition takes effect, that later
effective date controls; and (B) if such act prohibits the
inclusion revenue from some but not all of the broad-based health
care related taxes imposed by this article, then only those
sections of this article imposing taxes which cannot be used to
obtain federal matching dollars shall abrogate on such date, and
the remaining tax or taxes shall remain in effect.
(b) The date upon which a judgment or order of a court of
competent jurisdiction becomes final prohibiting the inclusion of
revenue from these broad-based health care related taxes when
determining the amount of state expenditures that are claimableas medical assistance for purposes of obtaining federal matching
dollars:
Provided, That: (A) If such judgment or order specifies
a later date on which the prohibition takes effect, that later
effective date controls; and (B) if such judgment or order
prohibits the inclusion revenue from some but not all of the
broad-based health care related taxes imposed by this article,
then only those sections of this article imposing taxes which
cannot be used to obtain federal matching dollars shall abrogate
on such date, and the remaining tax or taxes shall remain in
effect.
(c) The date upon which any federal administrative rule or
regulation promulgated in conformity with federal law becomes
effective which negates the effect or purposes of this article:
Provided, That: (A) If such rule or regulation specifies a later
date on which the prohibition takes effect, that later effective
date controls; and (B) if such rule or regulation prohibits the
inclusion of revenue from some but not all of the broad-based
health care related taxes imposed by this article when
determining the amount of state expenditures that are claimable
as medical assistance of purposes of obtaining federal matching
dollars, then only those sections of this article imposing taxes
which cannot be used to obtain federal matching dollars shall
abrogate on such date, and the remaining tax or taxes shall
remain in effect.
§11-27-22. Severability.
If any provision of this article or the application thereof
shall for any reason be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect,impair or invalidate the remainder of said article, but shall be
confined in its operation to the provision thereof directly
involved in the controversy in which such judgment shall have
been rendered, and the applicability of such provision to other
persons or circumstances shall not be affected thereby.
§11-27-23. Effective date.
This act of the Legislature shall take effect upon its
passage in the year one thousand nine hundred ninety-three:
Provided, That the taxes imposed by this article shall not be
levied on gross receipts received before the first day of May,
one thousand nine hundred ninety-three, and shall be levied on
gross receipts received on or after that date.
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