ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 545
(Senator Helmick, original sponsor)
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[Passed March 8, 2008; in effect ninety days from passage.]
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AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto two new sections, designated §11-10-5z and
§11-10-7d; to amend and reenact §11-12-5 of said code; to
amend said code by adding thereto a new section, designated
§11-15-9j; to amend and reenact §11-15-16 of said code; and to
amend and reenact §11-21-74 of said code, all relating to tax
administration efficiency and technical advancements;
requiring electronic filing of tax returns when the taxpayer
meets a certain threshold amount of taxes due; authorizing
combined tax assessments; authorizing promulgation of rules to
determine the application of partial payments of taxes;
authorizing the limitation on assessments to apply separately
to each tax in a combined assessment; authorizing the
recordation of one lien for all taxes in a combined
assessment; allowing assertion of the consumers sales and use tax exemptions authorized under section nine-i, article
fifteen, chapter eleven of the Code of West Virginia to be
asserted by use of a direct pay permit; prohibiting filing
incomplete business registration certificate; specifying the
time period for which the business registration certificate is
granted; specifying authority of the Tax Commissioner to
suspend or cancel certificate; eliminating the periodic
biennial business registration certificate renewal
requirement; specifying a penalty applied upon issuance,
renewal or reinstatement of the business registration
certificate pursuant to involuntary cancellation, revocation
or suspension of the business registration certificate;
prohibiting filing incomplete returns for consumers sales and
service tax and use tax; requiring the Tax Commissioner to
design a combined reporting form; requiring taxpayers to use
the form specified by the Tax Commissioner; authorizing the
Tax Commissioner to promulgate necessary rules; and
prohibiting filing incomplete filing of withholding tax
returns.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §11-10-5z and
§11-10-7d; that §11-12-5 of said code be amended and reenacted;
that said code be amended by adding thereto a new section, designated §11-15-9j; that §11-15-16 of said code be amended and
reenacted; and that §11-21-74 of said code be amended and
reenacted, all to read as follows:
ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-5z. Electronic filing for certain persons.
(a) For tax years beginning on or after the first day of
January, two thousand nine, any person required to file a return
for a tax administered under the provisions of this article and who
had total annual remittance for any single tax equal to or greater
than one hundred thousand dollars during the immediately preceding
taxable year shall file electronically all returns for all taxes
administered under this article.
(b) The Tax Commissioner shall implement the provisions of
this section using any combination of notices, forms, instructions
and rules that he or she determines necessary. All rules shall be
promulgated pursuant to article three, chapter twenty-nine-a of
this code.
§11-10-7d. Combining assessments.
(a) The Tax Commissioner may, subsequent to any investigation
authorized by subsection (a), section seven of this article that
results in an assessment in each of two or more taxes administered
pursuant to this article, combine those assessments into a combined
single assessment. In order to complete any investigation, the Tax
Commissioner may review and combine returns for the taxes that are the subject of the investigation.
(b) If the Tax Commissioner has combined two or more returns
as authorized by subsection (a) of this section, the tax remitted
shall be applied against taxes in the order provided in a rule
promulgated by the Tax Commissioner under the authority of article
three, chapter twenty-nine-a of this code.
(c) If the Tax Commissioner issues a combined single
assessment as authorized in subsection (a) of this section, the
limitations on assessment provided in section fifteen of this
article shall apply separately to each tax liability included in
the single assessment.
(d) If the Tax Commissioner issues a single assessment as
authorized in subsection (a) of this section and the assessment
becomes final pursuant to the provisions of section eight of this
article, the Tax Commissioner is authorized to pursue collection of
the tax resulting from the combined assessment as authorized by
this article, including, but not limited to, sections eleven and
thirteen of this article, and to record one lien, pursuant to
section twelve of this article, that includes all unpaid amounts of
all finalized tax liabilities included in that combined assessment.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-5. Time for which registration certificate granted; power
of Tax Commissioner to suspend or cancel certificate;
certificate to be permanent until cessation of business for which certificates are granted or
revocation, suspension or cancellation by the Tax
Commissioner; penalty for involuntary loss of license
due to failure to pay required fees and taxes
relating to business.
(a)
Registration period. -- All business registration
certificates issued under the provisions of section four of this
article are for the period of one year beginning the first day of
July and ending the thirtieth day of the following June:
Provided,
That beginning on or after the first day of July, one thousand nine
hundred ninety-nine, all business registration certificates issued
under the provisions of section four of this article shall be
issued for two fiscal years of this state, subject to the following
transition rule. If the first year for which a business was issued
a business registration certificate under this article began on the
first day of July of an even-numbered calendar year, then the Tax
Commissioner may issue a renewal certificate to that business for
the period beginning the first day of July, one thousand nine
hundred ninety-nine, and ending the thirtieth day of June, two
thousand, upon receipt of fifteen dollars for each such one-year
certificate. Notwithstanding any other provisions of this code to
the contrary, any certificate of registration granted on or after
the first day of July, two thousand ten, shall not be subject to
the foregoing requirement that it be renewed, but shall be permanent until cessation of the business for which the certificate
of registration was granted or until it is suspended, revoked or
cancelled by the Tax Commissioner. Notwithstanding any provision
of this code to the contrary, on or after the first day of July,
two thousand ten, reference to renewal of the business registration
certificate shall refer to the issuance of a new business
registration certificate pursuant to expiration, cancellation or
revocation of a prior business registration certificate or to
reinstatement of a business registration certificate or to
reinstatement of a business certificate previously suspended by the
Tax Commissioner. On or after the first day of July, two thousand
ten, the business registration certificate shall be issued upon
payment of a tax of thirty dollars to the Tax Commissioner for new
issuances of the business registration certificate or for issuances
of the business registration certificate pursuant to expiration,
cancellation or revocation of a prior business registration
certificate or for reinstatement of a business registration
certificate previously suspended by the Tax Commissioner, along
with any applicable delinquent fees, interest, penalties and
additions to tax.
(b)
Revocation or suspension of certificate. --
(1) The Tax Commissioner may cancel or suspend a business
registration certificate at any time during a registration period
if:
(A) The registrant filed an application for a business
registration certificate, or an application for renewal thereof,
that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a
tax return or to report information required by the Tax
Commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any
tax, additions to tax, penalties or interest, or any part thereof,
when they became due and payable under this chapter, determined
with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the Tax
Commissioner on or before its due date, determined with regard to
any authorized extension of time for payment, any tax imposed by
this chapter which the registrant collects from any person and
holds in trust for this state.
(E) The registrant abused the privilege afforded to it by
article fifteen or fifteen-a of this chapter to be exempt from
payment of the taxes imposed by such articles on some or all of the
registrant's purchases for use in business upon issuing to the
vendor a properly executed exemption certificate, by failing to
timely pay use tax on taxable purchase for use in business or by
failing to either pay the tax or give a properly executed exemption
certificate to the vendor.
(F) The registrant has failed to pay in full delinquent personal property taxes owing for the calendar year.
(2) On or after the first day of July, two thousand ten, a
prospective registrant or a former registrant for which a business
registration certificate has been suspended, cancelled or revoked
pursuant to the provisions of this article may apply for a new
business registration certificate or for reinstatement of a
suspended business registration certificate upon payment of all
outstanding delinquent fees, taxes, interest, additions to tax and
penalties, in addition to payment to the Tax Commissioner of a
penalty in the amount of one hundred dollars. The Tax Commissioner
may issue a new business registration certificate or reinstate a
suspended business registration certificate if the prospective or
former registrant has provided security acceptable to and
authorized by the Tax Commissioner, payable to the Tax
Commissioner, sufficient to secure all delinquent fees, taxes,
interest, additions to tax and penalties owed by the prospective
registrant. The Tax Commissioner may issue a new business
registration certificate or reinstate a suspended business
registration certificate if the prospective or former registrant
has entered into a payment plan approved by the Tax Commissioner by
which liability for all delinquent fees, taxes, interest, additions
to tax and penalties will be paid in due course and without
significant delay. Failure of any registrant to comply with a
payment plan pursuant to this provision shall be grounds for immediate suspension or revocation of the registrant's business
registration certificate.
(3) On and after the first day of July, two thousand ten, a
prospective registrant or a former registrant for which a business
registration certificate has been suspended, cancelled or revoked
pursuant to the provisions of any article of this code other than
this article may apply for a new business registration certificate
or for reinstatement of a suspended business registration
certificate only if the prospective or former registrant has
complied with all applicable statutory and regulatory requirements
for renewal, issuance or reinstatement of the business registration
certificate and upon payment to the Tax Commissioner of a penalty
in the amount of one hundred dollars.
(4) Except pursuant to exceptions specified in this code,
before canceling, revoking or suspending any business registration
certificate, the Tax Commissioner shall give written notice of his
or her intent to suspend, revoke or cancel the business
registration certificate of the taxpayer, the reason for the
suspension, revocation or cancellation, the effective date of the
cancellation, revocation or suspension and the date, time and place
where the taxpayer may appear and show cause why such business
registration certificate should not be canceled, revoked or
suspended. This written notice shall be served on the taxpayer in
the same manner as a notice of assessment is served under article ten of this chapter, not less than twenty days prior to the
effective date of the cancellation, revocation or suspension. The
taxpayer may appeal cancellation, revocation or suspension of its
business registration certificate in the same manner as a notice of
assessment is appealed under article ten-a of this chapter. The
filing of a petition for appeal does not stay the effective date of
the suspension, revocation or cancellation. A stay may be granted
only after a hearing is held on a motion to stay filed by the
registrant upon finding that state revenues will not be jeopardized
by the granting of the stay. The Tax Commissioner may, in his or
her discretion and upon such terms as he or she may specify, agree
to stay the effective date of the cancellation, revocation or
suspension until another date certain.
(5) On or before the first day of July, two thousand five, the
Tax Commissioner shall propose for promulgation legislative rules
establishing ancillary procedures for the Tax Commissioner's
suspension of business registration certificates for failure to pay
delinquent personal property taxes pursuant to paragraph (F),
subdivision (1) of this section. The rules shall at a minimum
establish any additional requirements for the provision of notice
deemed necessary by the Tax Commissioner to meet requirements of
law; establish protocols for the communication and verification of
information exchanged between the Tax Commissioner, sheriffs and
others; and establish fees to be assessed against delinquent taxpayers that shall be deposited into a special fund which is
hereby created and expended for general tax administration by the
Tax Division of the Department of Revenue and for operation of the
Tax Division. Upon authorization of the Legislature, the rules
shall have the same force and effect as if set forth herein. No
provision of this subdivision may be construed to restrict in any
manner the authority of the Tax Commissioner to suspend such
certificates for failure to pay delinquent personal property taxes
under paragraph (C) or (F), subdivision (1) of this section or
under any other provision of this code prior to the authorization
of the rules.
(c)
Refusal to renew. -- The Tax Commissioner may refuse to
issue or renew a business registration certificate if the
registrant is delinquent in the payment of any tax administered by
the Tax Commissioner under article ten of this chapter or the
corporate license tax imposed by article twelve-c of this chapter,
until the registrant pays in full all the delinquent taxes
including interest and applicable additions to tax and penalties.
In his or her discretion and upon terms as he or she specifies, the
Tax Commissioner may enter into an installment payment agreement
with the taxpayer in lieu of the complete payment. Failure of the
taxpayer to fully comply with the terms of the installment payment
agreement shall render the amount remaining due thereunder
immediately due and payable and the Tax Commissioner may suspend or cancel the business registration certificate in the manner provided
in this section.
(d)
Refusal to renew due to delinquent personal property tax.
-- The Tax Commissioner shall refuse to issue or renew a business
registration certificate when informed in writing, signed by the
county sheriff, that personal property owned by the applicant and
used in conjunction with the business activity of the applicant is
subject to delinquent property taxes. The Tax Commissioner shall
forthwith notify the applicant that the commissioner will not act
upon the application until information is provided evidencing that
the taxes due are either exonerated or paid.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-9j. Direct pay permits for health care providers.
Any person having a right or claim to any exemption set forth
in section nine-i of this article shall first pay to the vendor the
tax imposed by this article and then apply to the Tax Commissioner
for a refund or credit or, as provided in section nine-d of this
article and section three-d, article fifteen-a of this chapter,
give to the vendor his or her West Virginia direct pay permit
number.
§11-15-16. Tax return and payment; exception; requiring a combined
return
.
(a)
Payment of tax. -- Subject to the exceptions set forth in
subsection (b) of this section, the taxes levied by this article are due and payable in monthly installments, on or before the
twentieth day of the month next succeeding the month in which the
tax accrued, except as otherwise provided in this article.
(b)
Combined return required. --
(1) The Tax Commissioner shall, no later than the fifteenth
day of June, two thousand eight, design a return that combines
filing of the taxes levied by this article and article fifteen-a of
this chapter.
(2) Beginning the first day of July, two thousand eight, each
person required to file a return required by this article or
article fifteen-a of this chapter, or both this article and article
fifteen-a of this chapter, shall complete and file the return
required by the Tax Commissioner.
(3) The Tax Commissioner may promulgate rules pursuant to
article three, chapter twenty-nine-a of this code and otherwise use
any combination of notices, forms and instructions he or she
determines necessary to implement the use of the form required by
subsection (c) of this section.
(c)
Tax return. -- The taxpayer shall, on or before the
twentieth day of each month, make out and mail to the Tax
Commissioner a return for the preceding month, in the form
prescribed by the Tax Commissioner, showing:
(1) The total gross proceeds of the vendor's business for the
preceding month;
(2) The gross proceeds of the vendor's business upon which the
tax is based;
(3) The amount of the tax for which the vendor is liable; and
(4) Any further information necessary in the computation and
collection of the tax which the Tax Commissioner may require,
except as otherwise provided in this article or article fifteen-b
of this chapter.
(d)
Remittance to accompany return. -- Except as otherwise
provided in this article or article fifteen-b of this chapter, a
remittance for the amount of the tax shall accompany the return.
(e)
Deposit of collected tax. -- Tax collected by the Tax
Commissioner shall be deposited as provided in section thirty of
this article, except that:
(1) Tax collected on sales of gasoline and special fuel shall
be deposited in the state road fund; and
(2) Any sales tax collected by the Alcohol Beverage Control
Commissioner from persons or organizations licensed under authority
of article seven, chapter sixty of this code shall be paid into a
revolving fund account in the State Treasury, designated the Drunk
Driving Prevention Fund, to be administered by the Commission on
Drunk Driving Prevention, subject to appropriations by the
Legislature.
(f)
Return to be signed. -- A return shall be signed by the
taxpayer or the taxpayer's duly authorized agent when a paper return is prepared and filed. When the return is filed
electronically, the return shall include the digital mark or
digital signature, as defined in article three, chapter
thirty-nine-a of this code, or the personal identification number
of the taxpayer, or the taxpayer's duly authorized agent, made in
accordance with any procedural rule that may be promulgated by the
Tax Commissioner.
(g)
Accelerated payment. --
(1) Taxpayers whose average monthly payment of the taxes
levied by this article and article fifteen-a of this chapter during
the previous calendar year exceeds one hundred thousand dollars,
shall remit the tax attributable to the first fifteen days of June
each year on or before the twentieth day of June:
Provided, That on
and after the first day of June, two thousand seven, the provisions
of this subsection that require the accelerated payment on or
before the twentieth day of June of the tax imposed by this article
and article fifteen-a of this chapter are no longer effective and
any such tax due and owing shall be payable in accordance with
subsection (a) of this section.
(2) For purposes of complying with subdivision (1) of this
subsection, the taxpayer shall remit an amount equal to the amount
of tax imposed by this article and article fifteen-a of this
chapter on actual taxable sales of tangible personal property and
custom software and sales of taxable services during the first fifteen days of June or, at the taxpayer's election, the taxpayer
may remit an amount equal to fifty percent of the taxpayer's
liability for tax under this article on taxable sales of tangible
personal property and custom software and sales of taxable services
made during the preceding month of May.
(3) For a business which has not been in existence for a full
calendar year, the total tax due from the business during the prior
calendar year shall be divided by the number of months, including
fractions of a month, that it was in business during the prior
calendar year; and if that amount exceeds one hundred thousand
dollars, the tax attributable to the first fifteen days of June
each year shall be remitted on or before the twentieth day of June
as provided in subdivision (2) of this subsection.
(4) When a taxpayer required to make an advanced payment of
tax under subdivision (1) of this subsection makes out its return
for the month of June, which is due on the twentieth day of July,
the taxpayer may claim as a credit against liability under this
article for tax on taxable transactions during the month of June
the amount of the advanced payment of tax made under subdivision
(1) of this subsection.
ARTICLE 21. PERSONAL INCOME TAX.
PART I. GENERAL.
§11-21-74. Filing of employer's withholding return and payment of
withheld taxes; annual reconciliation; e-filing required for certain tax preparers and employers.
(a)
General. -- Every employer required to deduct and withhold
tax under this article shall, for each calendar quarter, on or
before the last day of the month following the close of the
calendar quarter, file a withholding return as prescribed by the
Tax Commissioner and pay over to the Tax Commissioner the taxes
required to be deducted and withheld. Where the average quarterly
amount deducted and withheld by any employer is less than one
hundred fifty dollars and the aggregate for the calendar year can
reasonably be expected to be less than six hundred dollars, the Tax
Commissioner may by regulation permit an employer to file an annual
return and pay over to the Tax Commissioner the taxes deducted and
withheld on or before the last day of the month following the close
of the calendar year. The Tax Commissioner may, by nonemergency
legislative rules promulgated pursuant to article three, chapter
twenty-nine-a of this code, change the minimum amounts established
by this subsection. The Tax Commissioner may, if he or she
determines necessary for the protection of the revenues, require
any employer to make the return and pay to him or her the tax
deducted and withheld at any time or from time to time.
Notwithstanding the provisions of this subsection, on or after the
first day of January, two thousand nine, every employer required to
deduct and withhold tax under this article shall file a withholding
return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld, in
accordance with the procedures established by the Internal Revenue
Service pursuant to Section 3402 of the Internal Revenue Code.
(b)
Monthly returns and payments of withheld tax on and after
the first day of January, two thousand one. -- Notwithstanding the
provisions of subsection (a) of this section, on and after the
first day of January, two thousand one, every employer required to
deduct and withhold tax under this article shall, for each of the
first eleven months of the calendar year, on or before the
twentieth day of the succeeding month and for the last calendar
month of the year, on or before the last day of the succeeding
month, file a withholding return as prescribed by the Tax
Commissioner and pay over to the Tax Commissioner the taxes
required to be deducted and withheld, if the withheld taxes
aggregate two hundred fifty dollars or more for the month, except
any employer with respect to whom the Tax Commissioner may have by
regulation provided otherwise in accordance with the provisions of
subsection (a) of this section. Notwithstanding the provisions of
this subsection, on and after the first day of January, two
thousand nine, every employer required to deduct and withhold tax
under this article shall file a withholding return as prescribed by
the Tax Commissioner and pay over to the Tax Commissioner the taxes
required to be deducted and withheld. The due dates for returns
and payments shall be established by the Tax Commissioner to match as closely as practicable the due dates in effect for federal
income tax purposes, in accordance with the procedures established
by the Internal Revenue Service pursuant to Section 3402 of the
Internal Revenue Code.
(c)
Annual returns and payments of withheld tax of certain
domestic and household employees. -- Employers of domestic and
household employees whose withholdings of federal income tax are
annually paid and reported by the employer pursuant to the filing
of Schedule H of federal form 1040, 1040A, 1040NR, 1040NR-EZ,
1040SS or 1041 may, on or before the thirty-first day of January
next succeeding the end of the calendar year for which withholdings
are deducted and withheld, file an annual withholding return with
the Tax Commissioner and annually remit to the Tax Commissioner
West Virginia personal income taxes deducted and withheld for the
employees. The Tax Commissioner may promulgate legislative or
other rules pursuant to article three, chapter twenty-nine-a of
this code for implementation of this subsection. Notwithstanding
the provisions of this subsection, on or after the first day of
January, two thousand nine, every employer required to deduct and
withhold tax under this article shall file a withholding return as
prescribed by the Tax Commissioner and pay over to the Tax
Commissioner the taxes required to be deducted and withheld. The
due dates for annual returns and payments shall be established by
the Tax Commissioner to match as closely as practicable the due dates in effect for federal income tax purposes in accordance with
the procedures established by the Internal Revenue Service pursuant
to Section 3402 of the Internal Revenue Code.
(d)
Deposit in trust for Tax Commissioner. -- Whenever any
employer fails to collect, truthfully account for or pay over the
tax, or to make returns of the tax as required in this section, the
Tax Commissioner may serve a notice requiring the employer to
collect the taxes which become collectible after service of the
notice, to deposit the taxes in a bank approved by the Tax
Commissioner, in a separate account, in trust for and payable to
the Tax Commissioner and to keep the amount of the tax in the
separate account until payment over to the Tax Commissioner. The
notice shall remain in effect until a notice of cancellation is
served by the Tax Commissioner.
(e)
Accelerated payment. -- (1) Notwithstanding the provisions
of subsections (a) and (b) of this section, for calendar years
beginning after the thirty-first day of December, one thousand nine
hundred ninety, every employer required to deduct and withhold tax
whose average payment per calendar month for the preceding calendar
year under subsection (b) of this section exceeded one hundred
thousand dollars shall remit the tax attributable to the first
fifteen days of June each year on or before the twenty-third day of
June:
Provided, That on and after the first day of June, two
thousand seven, the provisions of this subsection that require the accelerated payment on or before the twenty-third day of June of
the tax imposed by this article are no longer effective and any tax
due and owing shall be payable in accordance with subsection (a) of
this section.
(2) For purposes of complying with subdivision (1) of this
subsection, the employer shall remit an amount equal to the
withholding tax due under this article on employee compensation
subject to withholding tax payable or paid to employees for the
first fifteen days of June or, at the employer's election, the
employer may remit an amount equal to fifty percent of the
employer's liability for withholding tax under this article on
compensation payable or paid to employees for the preceding month
of May.
(3) For an employer which has not been in business for a full
calendar year, the total amount the employer was required to deduct
and withhold under subsection (b) of this section for the prior
calendar year shall be divided by the number of months, including
fractions of a month, that it was in business during the prior
calendar year and if that amount exceeds one hundred thousand
dollars, the employer shall remit the tax attributable to the first
fifteen days of June each year on or before the twenty-third day of
June, as provided in subdivision (2) of this subsection.
(4) When an employer required to make an advanced payment of
withholding tax under subdivision (1) of this subsection makes out its return for the month of June, which is due on the twentieth day
of July, that employer may claim as a credit against its liability
under this article for tax on employee compensation paid or payable
for employee services rendered during the month of June the amount
of the advanced payment of tax made under subdivision (1) of this
subsection.
(f) The amendments to this section enacted in the year two
thousand six are effective for tax years beginning on or after the
first day of January, two thousand six.
(g) An annual reconciliation of West Virginia personal income
tax withheld shall be submitted by the employer on or before the
twenty-eighth day of February following the close of the calendar
year, together with Tax Division copies of all withholding tax
statements for that preceding calendar year. The reconciliation
shall be accompanied by a list of the amounts of income withheld
for each employee in such form as the Tax Commissioner prescribes
and shall be filed separately from the employer's monthly or
quarterly return.
(h) Any employer required to file a withholding return for two
hundred fifty or more employees shall file its return using
electronic filing as defined in section fifty-four of this article.
An employer that is required to file electronically but does not do
so is subject to a penalty in the amount of twenty-five dollars per
employee for whom the return was not filed electronically, unless the employer shows that the failure is due to reasonable cause and
not due to willful neglect.