Senate Bill No. 578
(By Senators Felton, Plymale, Dittmar, Anderson,
Grubb and Holliday)
____________
[Originating in the Committee on the Judiciary;
reported March 29, 1993.]
____________
A BILL to amend and reenact section two, article nine, chapter
eleven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said
article by adding thereto a new section, designated section
two-a; to amend and reenact sections six, six-a, twelve,
fifteen and twenty-four, article twenty, chapter forty-seven
of said code; to further amend said article by adding
thereto a new section, designated section twelve-a; to amend
and reenact sections seven, fifteen and twenty-two, article
twenty-one of said chapter; and to further amend said
chapter by adding thereto a new article, designated article
twenty-three, all relating to the application of article
nine, chapter eleven, the establishment of a criminal
investigation section in the state tax division; funding of
such section; increasing the annual charitable bingo license
fee from one hundred dollars to five hundred dollars and
disposition of such fees; decreasing the annual charitable
raffle license fee from one thousand dollars to five hundred
dollars and disposition of such fees; allowing a limited
salary to be paid to operators at bingo occasions; requiring
audited financial statements or a compilation and review of
financial statements annually filed by certain licensees;
increasing from ten percent to fifteen percent the portion
of gross proceeds which may be utilized for expenses;
imposing a penalty for failure to file reports; the
establishment of the charitable raffle boards and games act;
providing definitions and fees for the sale of charitable
raffle boards and games; prohibiting fees on charitable
raffle boards or games by municipalities or other
governmental subdivisions; mandating indicia; form of
indicia and custody of same; security for payments; surety
bonds required; release of surety; new bond; how fee paid;
reports required; due date; records to be kept; inspection
of records and stocks; examination of witnesses; summons;
enforcement powers; penalty for failure to file return when
no fee is due; crimes; transportation of unstamped
charitable raffle boards and games; forfeitures and sales of
charitable raffle boards, charitable raffle games and
equipment; criminal sanctions; administration; rules;
severability; and general procedure and administration.
Be it enacted by the Legislature of West Virginia:
That section two, article nine, chapter eleven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said article be further
amended by adding a new section, designated section two-a; that
sections six, six-a, twelve, fifteen and twenty-four, articletwenty, chapter forty-seven of said code, be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section twelve-a; that sections seven,
fifteen and twenty-two, article twenty-one of said chapter be
amended and reenacted; and that said chapter be further amended
by adding thereto a new article, designated article twenty-three,
all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article shall apply to the
following taxes imposed by this chapter: (1) The inheritance and
transfer taxes and estate taxes imposed by article eleven of this
chapter; (2) the business franchise registration tax imposed by
article twelve of this chapter; (3) the annual tax on incomes of
certain carriers imposed by article twelve-a of this chapter; (4)
the business and occupation tax imposed by article thirteen of
this chapter; (5) the gasoline and special fuels excise tax
imposed by article fourteen of this chapter; (6) the motor
carrier road tax imposed by article fourteen-a of this chapter;
(7) the consumers sales and service tax imposed by article
fifteen of this chapter; (8) the use tax imposed by article
fifteen-a of this chapter; (9) the cigarette tax imposed by
article seventeen of this chapter; (10) the soft drinks tax
imposed by article nineteen of this chapter; (11) the personal
income tax imposed by article twenty-one of this chapter; and
(12) the corporation net income tax imposed by article twenty-
four of this chapter.
(b) The provisions of this article shall also apply to the
West Virginia tax procedure and administration act in article ten
of this chapter, and to any other articles of this chapter when
such application is expressly provided for by the Legislature.
(c) The provisions of this article shall also apply to the
charitable bingo fee imposed by sections six and six-a, article
twenty, chapter forty-seven of this code; the charitable raffle
fee imposed by section seven, article twenty-one of said chapter;
and the charitable raffle boards and games fees imposed by
section three, article twenty-three of said chapter.
(d) Each and every provision of this article shall apply to
the articles of this chapter listed in subsections (a), (b) and
(c), with like effect, as if the provisions of this article were
applicable only to such tax and were set forth in extensio in
such article.
§11-9-2a. Criminal investigation section established; funding
of same.
A criminal investigation section consisting of no more than
ten investigators plus necessary support staff is hereby
established within the state tax division for the purpose of
assuring compliance with laws, rules and regulations pertaining
to the taxes or credits established by articles eleven, eleven-a,
eleven-b, twelve, twelve-a, twelve-b, thirteen, thirteen-a,
thirteen-b, thirteen-c, thirteen-d, thirteen-e, thirteen-f,
thirteen-g, thirteen-h, fourteen, fourteen-a, fifteen, fifteen-a,
sixteen, seventeen, eighteen, nineteen, twenty-three, twenty-four
and twenty-six of this chapter, and articles twenty, twenty-one
and twenty-three, chapter forty-seven of this code. Charitablebingo fees imposed under sections six and six-a, article twenty
of said chapter; charitable raffle fees imposed under section
seven, article twenty-one of said chapter; and charitable raffle
boards and games fees imposed under section three, article
twenty-three of said chapter shall be deposited in a special
revenue account established in the office of the treasurer and
shall be used to support compliance expenditures relating to the
establishment, maintenance and support of such criminal
investigation section. At the close of the fiscal year, any
moneys in the special revenue account in excess of twenty
thousand dollars shall be transferred to the general revenue
fund.
Any employee of the criminal investigation section so
designated by the tax commissioner who shall have a background in
accounting and who shall be certified as a law-enforcement
officer pursuant to article twenty-nine, chapter thirty of this
code, or its equivalent, shall have all the lawful powers
delegated to members of the department of public safety except
the power to carry firearms to enforce the provisions of this
article in any county or municipality of this state. The
commissioner shall establish such additional standards as he or
she deems applicable or necessary. Any such employee shall,
before entering upon the discharge of his or her duties, execute
a bond with security in the sum of three thousand five hundred
dollars, payable to the state of West Virginia, conditioned for
the faithful performance of his or her duties, as such, and such
bond shall be approved as to form by the attorney general, and
the same shall be filed with the secretary of state and preservedin his or her office. The department of public safety, any
county sheriff, or deputy sheriff, or any municipal police
officer, upon request by the tax commissioner, is hereby
authorized to assist the tax commissioner in enforcing the
provisions of this article and the criminal penalty provisions of
this article or any article of this chapter administered under
this article.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 20. CHARITABLE BINGO.
§47-20-6. License fee and exemption from taxes.
(a) A license fee shall be paid to the tax commissioner for
annual licenses in the amount of five hundred dollars, except
that for bona fide senior citizen organizations the fee is fifty
dollars. A license fee shall be paid to the tax commissioner for
a limited occasion license in the amount of one hundred dollars.
A license fee of five hundred dollars shall be paid to the tax
commissioner for a state fair license as provided in section
twenty-two of this article. All revenue from said license fee
shall be deposited in the special revenue account established
under the authority of section two-a, article nine, chapter
eleven of this code and used to support the investigatory
activities provided for in said section. The license fee imposed
by this section is in lieu of all other license or franchise
taxes or fees of this state, and no county or municipality or
other political subdivision of this state is empowered to impose
a license or franchise tax or fee.
(b) The gross proceeds derived from the conduct of a bingo
occasion are exempt from state and local business and occupationtaxes, income taxes, excise taxes and all special taxes. The
licensee is exempt from payment of consumers sales and service
taxes and use taxes on all purchases for use or consumption in
the conduct of a bingo occasion and is exempt from collecting
consumers sales taxes on any admission fees and sales of bingo
cards:
Provided, That the exemption provided in this subsection
does not apply to state fair bingo proceeds.
§47-20-6a. Super bingo license.
Any charitable or public service organization may, upon
payment of a five thousand dollar license fee, apply to the tax
commissioner for issuance of an annual super bingo license. All
revenue from said license fee shall be deposited in the special
revenue account established under the authority of section two-a,
article nine, chapter eleven of this code and use to support the
investigatory activities provided for in said section. The tax
commissioner shall promulgate rules in accordance with article
three, chapter twenty-nine-a of this code specifying those
organizations which qualify as charitable or public service
organizations.
A holder of a super bingo license may conduct one super
bingo occasion each calendar quarter during the period of the
license at which up to thirty-five thousand dollars in prizes may
be awarded, notwithstanding the seven thousand five hundred
dollar limitation on prizes specified in section ten of this
article.
A charitable or public service organization that has a
regular or limited occasion bingo license may apply for a super
bingo license.
§47-20-12. Compensation.
Except as provided otherwise in sections twelve-a, thirteen
and twenty-two of this article, no individual who participates in
any manner in the conduct of a bingo occasion or the operation of
a concession in conjunction with a bingo occasion may receive or
accept any commission, wage, salary, reward, tip, donation,
gratuity or other form of compensation or remuneration whether
directly or indirectly, regardless of the source, for his work,
labor or services.
§47-20-12a. Compensation of bingo operator.
(a) Within the guidelines set forth in subsections (b), (c)
and (d) of this section, a licensee may pay a salary, not to
exceed the federal minimum wage, to operators of bingo games who
are active members of the licensee organization.
(b) If the licensee's gross receipts from bingo occasions
equal or exceed one hundred thousand dollars for the licensee's
most recently filed annual financial report, a salary may be paid
to not more than three operators.
(c) If the licensee's gross receipts from bingo occasions
are less than one hundred thousand dollars, but equal or exceed
fifty thousand dollars for the licensee's most recently filed
annual financial report, a salary may be paid to not more than
two operators.
(d) If the licensee's gross receipts from bingo occasions
are less than fifty thousand dollars for the licensee's most
recently filed annual financial report, a salary may be paid to
no more than one operator.
§47-20-15. Payment of reasonable expenses from proceeds; net
proceeds disbursement.
(a) The reasonable, necessary and actual expenses incurred
in connection with the conduct of bingo occasions, not to exceed
fifteen percent of the gross proceeds collected during a license
period, may be paid out of the gross proceeds of the conduct of
bingo, including, but not limited to:
(1)
Rent
paid
for
the
use
of
the
premises:
Provided, That
a copy of the rental agreement was filed with the bingo license
application and any changes thereto were filed within ten days of
being made;
(2) The cost of custodial services;
(3) The cost to the licensee organization for equipment and
supplies used to conduct the bingo occasion;
(4) The cost to the licensee organization for advertising
the bingo occasion; and
(5) The cost of hiring security personnel.
(b) The actual cost to the licensee for prizes, not to
exceed the amounts as specified in section ten of this article,
may be paid out of the gross proceeds of the conduct of bingo.
(c) The cost of any refreshments, souvenirs or any other
item sold or otherwise provided through any concession to the
patrons may not be paid for out of the gross proceeds from the
bingo occasion. The licensee shall expend all net bingo proceeds
and any interest earned thereon for the charitable or public
service purposes stated in the application within one year after
the expiration of the license under which the bingo occasions
were conducted. A licensee which does not qualify as a qualified
recipient organization may apply to the commissioner at the timeit applies for a bingo license or as provided in subsection (e)
of this section for permission to apply any or all of its net
proceeds to directly support a charitable or public service
activity or endeavor which it sponsors.
(d) No gross proceeds from any bingo operation may be
devoted or in any manner used by any licensee or qualified
recipient organization for the construction, acquisition,
improvement, maintenance or repair of real or personal property
except that which is used exclusively for one or more charitable
or public service purposes or as provided in subdivision (3),
subsection (a) of this section.
(e) Any licensee which, in good faith, finds itself unable
to comply with the requirements of this provision shall apply to
the commissioner for permission to expend its net proceeds for
one or more charitable or public service purposes other than that
stated in its license application or for permission to expend its
net proceeds later than the one-year time period specified in
this section. The application shall be on a form furnished by
the commissioner and shall include the particulars of the
requested changes and the reasons for the changes. The
application shall be filed no later than sixty days before the
end of the one-year period specified in this section. In the
case of an application to extend the time in which the net
proceeds are to be expended for a charitable or public service
purpose, the licensee shall file such periodic reports with the
commissioner as the commissioner directs until the proceeds are
so expended.
§47-20-24. Filing of reports.
Each licensee holding an annual license shall file with the
tax commissioner quarterly and an annual financial report
summarizing its bingo operations for the time period covered by
the report. Each quarterly report shall be filed within twenty
days after the end of the quarter which it covers. The annual
report shall be filed within thirty days after the expiration of
the license under which the operations covered by the report were
held.
Each licensee holding a limited occasion license or state
fair license shall file with the tax commissioner a financial
report summarizing its bingo operations for the license period
within thirty days after the expiration of the license under
which the operations covered by the report are held. The report
shall contain the name, address and social security number of any
individual who receives during the course of a bingo occasion
prizes the aggregate value of which exceeds one hundred dollars,
and other information required by the commissioner:
Provided,
That any licensee failing to file such report when due shall be
liable for a penalty of twenty-five dollars for each month or
fraction thereof during which the failure continues, such penalty
not to exceed one hundred dollars:
Provided, however, That
annual financial reports for license years ending after the first
day of July, one thousand nine hundred ninety-three, must be
audited financial reports as defined by the American institute of
certified public accountants if a licensee's gross receipts
exceed one hundred thousand dollars:
Provided further, That
annual financial reports for license years ending after the first
day of July, one thousand nine hundred ninety-three, must containa compilation and review of such financial report, as defined by
the American institute of certified public accountants, if a
licensee's gross receipts exceed fifty thousand dollars but are
less than one hundred thousand dollars.
ARTICLE 21. CHARITABLE RAFFLES.
§47-21-7. License fee and exemption from taxes.
(a) A license fee shall be paid to the tax commissioner for
annual licenses in the amount of five hundred dollars. A license
fee shall be paid to the tax commissioner for a limited occasion
license in the amount of fifty dollars. All revenue from said
license fee shall be deposited in the special revenue account
established under the authority of section two-a, article nine,
chapter eleven of this code and used to support the investigatory
activities provided for in said section. The license fee imposed
by this section is in lieu of all other license or franchise
taxes or fees of this state and no county or municipality or
other political subdivision of this state is empowered to impose
a license or franchise tax or fee on any raffle or raffle
occasion.
(b) The gross proceeds derived from the conduct of a raffle
occasion are exempt from state and local business and occupation
taxes, income taxes, excise taxes and all special taxes. Any
charitable or public service organization conducting a raffle
occasion pursuant to the provisions of this article is exempt
from payment of consumers sales and service taxes, use taxes and
all other taxes on all purchases for use or consumption in the
conduct of a raffle occasion and is exempt from collecting
consumers sales taxes on any admission fees and sales of raffletickets.
§47-21-15. Payment of reasonable expenses from proceeds; net
proceeds disbursement.
(a) The reasonable, necessary and actual expenses incurred
in connection with the conduct of raffle occasions, not to exceed
fifteen percent of the gross proceeds collected during a license
period, may be paid out of the gross proceeds of the conduct of
raffle, including, but not limited to:
(1)
Rent
paid
for
the
use
of
the
premises:
Provided, That
a copy of the rental agreement was filed with the raffle license
application with any modifications thereto to be filed within ten
days of being made;
(2) The cost of custodial services;
(3) The cost to the licensee organization for equipment and
supplies used to conduct the raffle occasion;
(4) The cost to the licensee organization for advertising
the raffle occasion; and
(5) The cost of hiring security personnel.
(b) The actual cost to the licensee for prizes, not to
exceed the amounts as specified in section eleven of this
article, may be paid out of the gross proceeds of the conduct of
raffle.
(c) The cost of any refreshments, souvenirs or any other
item sold or otherwise provided through any concession to the
patrons may not be paid for out of the gross proceeds from the
raffle occasion. The licensee shall expend all net raffle
proceeds and any interest earned thereon for the charitable or
public service purposes stated in the application within one yearafter the expiration of the license under which the raffle
occasions were conducted. A licensee which does not qualify as
a qualified recipient organization may apply to the commissioner
at the time it applies for a raffle license or as provided in
subsection (e) of this section for permission to apply any or all
of its net proceeds to directly support a charitable or public
service activity or endeavor which it sponsors.
(d) No gross proceeds from any raffle operation may be
devoted or in any manner used by any licensee or qualified
recipient organization for the construction, acquisition,
improvement, maintenance or repair of real or personal property
except that which is used exclusively for one or more charitable
or public service purposes or as provided in subdivision (3),
subsection (a) of this section.
(e) Any licensee which, in good faith, finds itself unable
to comply with the requirements of the foregoing provisions of
this section shall apply to the commissioner for permission to
expend its net proceeds for one or more charitable or public
service purposes other than that stated in its license
application or for permission to expend its net proceeds later
than the one-year time period specified in this section. The
application shall be on a form furnished by the commissioner and
shall include the particulars of the requested changes and the
reasons for the changes. The application shall be filed no later
than sixty days before the end of the one-year period specified
in this section. In the case of an application to extend the
time in which the net proceeds are to be expended for a
charitable or public service purpose, the licensee shall filesuch periodic reports with the commissioner as the commissioner
directs until the proceeds are so expended.
§47-21-22. Filing of reports.
Each licensee holding an annual, limited or state fair
license shall file with the commissioner a financial report
summarizing its raffle operations within thirty days after the
expiration date of such license.
The reports required by this section shall contain the name,
address and social security number of any individual who received
during the course of a raffle occasion prizes the aggregate value
of which exceeded one hundred dollars, and other information
required by the commissioner:
Provided, That any licensee
failing to file such report when due shall be liable for a
penalty of twenty-five dollars for each month or fraction thereof
during which the failure continues, such penalty not to exceed
one hundred dollars:
Provided,
however, That annual financial
reports for license years ending after the first day of July, one
thousand nine hundred ninety-three, must be audited financial
reports as defined by the American institute of certified public
accountants if a licensee's gross receipts exceed one hundred
thousand dollars:
Provided further, That annual financial reports
for license years ending after the first day of July, one
thousand nine hundred ninety-three, must contain a compilation
and review of such financial report, as defined by the American
institute of certified public accountants, if a licensee's gross
receipts exceed fifty thousand dollars but are less than one
hundred thousand dollars.
ARTICLE 23. CHARITABLE RAFFLE BOARDS AND GAMES.
§47-23-1. Short Title.
This article shall be known as and may be cited as the
"Charitable Raffle Boards and Games Act".
§47-23-2. Definitions.
For purposes of this article, unless specified otherwise:
(a) "Commissioner" means tax commissioner of the state of
West Virginia, or his delegate.
(b) "Retail face value" means the projected gross income to
be received by the retailer from the sale of all raffle chances
on or in the charitable raffle boards or games.
(c) "Indicia" means the impression authorized by the
commissioner to serve as such indicia, and shall be of the design
and color prescribed by the commissioner.
(d) "Person" means any individual, association, society,
incorporated or unincorporated organization, firm partnership or
other nongovernmental entity or institution.
(e) "Retailer" means every person engaged in the business of
making retail sales of raffle chances.
(f) "Charitable raffle board" or "charitable raffle game"
means a board or other device that has many folded printed slips
to be pulled from the board or otherwise distributed without a
board on payment of a nominal sum in an effort to obtain a slip
or chance that entitles the player to a designated prize. It
shall also have any other meaning or designation that may be
determined by the commissioner consistent with the purposes of
this article.
(g) "Sale" means the transfer of the ownership of tangible
personal property for a consideration.
(h) "Wholesaler" or "distributor" means any person or entity
engaged in the wholesale distribution of charitable raffle boards
or games or similar boards or devices, as defined by the
commissioner, and licensed under the provisions of this article,
to distribute said devices to charitable raffle boards or games
retailers as defined in this article. It also includes anyone
who is engaged in the manufacturing, packaging, preparing or
repackaging of charitable raffle boards or games for distribution
in this state.
§47-23-3. License fee.
Wholesalers or distributors of charitable raffle boards and
games to retailers shall be licensed and a license fee in the
amount of five hundred dollars shall be paid to the commissioner
by each wholesaler or distributor for an annual license.
Wholesalers shall also pay a fee of six cents on each dollar of
retail face value of each charitable raffle board or game sold to
a retailer which retail face value(s) must be clearly imprinted
on the board or game. All revenue from said fee shall be placed
in the special revenue account established under the authority of
section two-a, article nine, chapter eleven of this code.
§47-23-4. No fee on charitable raffle boards and games by
municipalities or other governmental subdivisions.
No municipality or governmental subdivision shall levy any
excise or other tax or fee requiring charitable raffle boards or
games to be stamped, or requiring licenses for sale thereof,
other than licenses which may be imposed as a result of licenses
provided for in article twelve, chapter eleven of this code.
§47-23-5. Indicia; how affixed; violations.
The indicia required by this article, as described in the
charitable raffle boards and games fee rules and regulations,
shall be impressed upon each charitable raffle board or game, of
an aggregate value of not less than the amount of the fee
imposed. The indicia so impressed shall be prima facie evidence
of payment of the annual license fee imposed by this article.
Indicia printing approval shall be received from only the
commissioner by wholesalers and distributors who have paid the
annual license fee provided in section three of this article.
Except as may be otherwise provided in the rules and
regulations prescribed by the commissioner under authority of
this article, such indicia shall be impressed by each wholesaler
or distributor prior to the sale of such boards or games to a
retailer. Each wholesaler or distributor making such sales must
be authorized to do business in this state prior to the sale or
delivery of any charitable raffle boards or games to any retailer
in this state.
Whenever any charitable raffle boards or games are found in
the place of business of any retailer without the indicia so
impressed, the prima facie presumption shall arise that such
charitable raffle boards or games are kept therein in violation
of the provisions of this article.
§43-23-6. Form of indicia; custody; security for payments.
The commissioner shall design the indicia to be used as
herein provided for impression on charitable raffle boards or
games. The charitable raffle boards or games shall have the
purchase price clearly imprinted thereon and shall have printed
or impressed thereon the words "State of West Virginia -- RaffleBoard Stamp" or such other words and figures as the commissioner
may deem proper.
§47-23-7. Surety bonds required; release of surety; new bond.
The commissioner may require wholesalers and distributors to
file continuous surety bond in an amount to be fixed by the
commissioner except that the amount shall not be less than one
thousand dollars. Upon completion of the filing of a surety bond
an annual notice of renewal, only, shall be required thereafter.
The surety must be authorized to engage in business within this
state. The bond shall be conditioned upon faithfully complying
with the provisions of this article including the filing of the
returns and payment of all fees prescribed by this article.
Any surety on a bond furnished hereunder shall be released
and discharged from all liability accruing on such bond after the
expiration of sixty days from the date the surety shall have
lodged, by certified mail, with the tax commissioner a written
request to be discharged. This shall not relieve, release or
discharge the surety from liability already accrued or which
shall accrue before the expiration of the sixty-day period.
Whenever any surety shall seek release as herein provided, it
shall be the duty of the wholesaler or distributor to supply the
commissioner with another bond.
§47-23-8. How fee paid; reports required; due date; records to
be kept; inspection of records and stocks; examination of
witnesses, summons, etc.
The fee hereby imposed shall be paid by each licensed
wholesaler or distributor to the commissioner on or before the
fifteenth day of April, July, October and January for thepreceding three calendar months. The measure of the fee shall be
determined by multiplying the total amount of the retail face
value of all charitable raffle boards and games sold by
wholesalers or distributors to retailers during the said
three-month period by six percent. All fees due and owing to the
commissioner by reason of this article, if paid after the due
dates required by this section, shall be subject to the
provisions of article ten, chapter eleven of this code. Each
wholesaler or distributor shall provide with each quarterly
payment of fees a report covering the business transacted in the
previous three calendar months and providing such other
information as the commissioner may deem necessary for the
ascertainment or assessment of the fee imposed by this article.
Such report shall be signed under penalty of perjury on such
forms as the tax commissioner may prescribe and the wholesaler or
distributor shall at the time of filing remit all fees owed or
due.
The commissioner may authorize any wholesaler or distributor
holding the license required by this article to use any metering
device approved by the commissioner, such devices to be sealed by
the commissioner, before being used, which device shall be used
only in accordance with the regulations prescribed by the
commissioner. A wholesaler or distributor shall pay the fee in
advance where a metering device is used, in which event such
wholesaler or distributor shall deliver the metering device to
the commissioner who shall seal the meter in accordance with the
prepayment so made.
The reports prescribed herein are required, although a feemight not be due or no business transacted for the period covered
by the report.
Each person required to file a report under this article
shall make and keep such records as shall be prescribed by the
commissioner that are necessary to substantiate the returns
required by this article, including, but not limited to,
inventories, receipts, disbursements and sales, for a period of
time not less than three years.
Unless otherwise permitted, in writing, by authority of the
commissioner, each delivery ticket or invoice for each purchase
or sale of charitable raffle boards or games must be recorded
upon a serially numbered invoice showing the name and address of
the seller and the purchaser, the point of delivery, the date,
quantity and price of the product sold, and the fee must be set
out separately, and such other reasonable information as the
commissioner may require. These invoicing requirements also
apply to cash sales and a person making such sales must maintain
such records as may be reasonably necessary to substantiate his
return.
In addition to the commissioner's powers set forth in
section five, article ten, chapter eleven of this code, the
commissioner shall have authority to inspect or examine the stock
of charitable raffle boards and games kept in and upon the
premises of any person where charitable raffle boards and games
are placed, stored or sold, and he shall have authority to
inspect or examine the records, books, papers and any equipment
or records of manufacturers, wholesalers and distributors or any
other person for the purpose of determining the quantity ofcharitable raffle boards and games acquired or disbursed to
verify the truth and accuracy of any statement or report and to
ascertain whether the fee imposed by this article has been
properly paid.
In addition to the commissioner's powers set forth in
section five, article ten, chapter eleven of this code, and as a
further means of obtaining the records, books and papers of a
manufacturer, wholesaler, distributor or any other person and
ascertaining the amount of fees and reports due under this
article, the commissioner shall have the power to examine
witnesses under oath; and if the witness shall fail or refuse at
the request of the commissioner to grant access to the books,
records or papers, the commissioner shall certify the facts and
names to the circuit court of the county having jurisdiction of
the party and such court shall thereupon issue summons to such
party to appear before the commissioner, at a place designated
within the jurisdiction of such court, on a day fixed, to be
continued as the occasion may require for good cause shown and
give such evidence and lay open for inspection such books and
papers as may be required for the purpose of ascertaining the
amount of fee and reports due, if any.
§47-23-9. Penalty for failure to file return when no fee due;
crimes.
(a)
Penalty for failure to file required return where no fee
due. -- In the case of any failure to make or file a return when
no tax is due, as required by this article, on the date
prescribed therefor, unless it be shown that such failure was due
to reasonable cause and not due to willful neglect, there shallbe collected a penalty of twenty-five dollars for each month of
such failure or fraction thereof.
(b)
If any person:
(1) Makes any false entry upon an invoice required to be
made under the provisions of this article or with intent to evade
the fee imposed by this article presents any such false entry for
the inspection of the commissioner;
(2) Prevents or hinders the commissioner from making a full
inspection of any place where charitable raffle boards or games
subject to the fee imposed by this state are sold or stored or
prevents or hinders the full inspection of invoices, books,
records or papers required to be kept under the provisions of
this article;
(3) Sells any charitable raffle boards or games in this
state without there having been first affixed thereto the indicia
required by this article;
(4) Being a retailer in this state, has in his possession
any charitable raffle boards or games not bearing the indicia
herein required to be affixed thereto or, whoever fails to
produce on demand by the commissioner invoices of all charitable
raffle boards and games purchased or received by him within three
years prior to such demand, unless upon satisfactory proof it is
shown that such nonproduction is due to providential or other
causes beyond his control;
(5) Any retailer who purchases or acquires charitable raffle
boards and games from any person other than a wholesaler or
distributor licensed under this article;
(6) If any person, firm or corporation who is not awholesaler or distributor of charitable raffle boards or games,
as provided by this article, shall have in his possession within
the state any charitable raffle boards or games not bearing the
proper indicia of this state, such possession shall be inferred
to be for the purpose of evading the payment of the fees imposed
or due thereon; or
(7) Whoever violates any of the provisions of this
subsection is guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in the county jail for not less than
one year or a fine of not less than one thousand dollars nor more
than ten thousand dollars, or both.
(c) Whoever falsely or fraudulently makes, forges, alters or
counterfeits any indicia prescribed, or defined, by the
provisions of this article, or its related rules and regulations,
and any person who knowingly and willfully makes, causes to be
made, purchases, receives or has in his possession, any device
for forging or counterfeiting any indicia, or has in his
possession, any indicia not properly issued by the commissioner
or tampers with or alters any stamping device authorized by the
commissioner, or uses more than once any indicia provided for and
required by this article for the purpose of evading the fee
hereby imposed, shall be guilty of a felony, and, upon conviction
thereof, shall be sentenced to pay a fine of not less than five
thousand dollars nor more than ten thousand dollars or imprisoned
in the penitentiary for a term of not less than one year nor more
than five years, or both fined and imprisoned.
(d) Whenever the commissioner, or any of his deputies or
employees authorized by him, or any peace officer of this stateshall discover any charitable raffle boards or games subject to
the fee as provided by this article and upon which the fee has
not been paid as herein required, such charitable raffle boards
and games shall thereupon be deemed to be contraband, and the
commissioner, or such deputy or employee or any peace officer of
this state, is hereby authorized and empowered forthwith to seize
and take possession of such charitable raffle boards or games,
without a warrant, and such charitable raffle boards and games
shall be forfeited to the state, and the commissioner shall
within a reasonable time thereafter destroy such charitable
raffle boards and games:
Provided, That such seizure and
destruction shall not be deemed to relieve any person from fine
or imprisonment as provided herein for violation of any
provisions of this article. Such destruction may be made in any
county the commissioner deems most convenient and economical.
All revenue from said license fee shall be deposited in the
special revenue account established under the authority of
section two-a, article nine, chapter eleven of this code and used
to support the investigatory activities provided for in said
section.
(e) Magistrates shall have concurrent jurisdiction with any
other courts having jurisdiction for the trial of all
misdemeanors arising under this article.
§47-23-10. Transportation of unstamped charitable raffle boards
and games; forfeitures and sales of charitable raffle
boards, charitable raffle games and equipment; criminal
sanctions.
Every person who shall transport charitable raffle boards orgames not bearing indicia as required by section six of this
article upon the public highways, waterways, airways, roads or
streets of this state shall have in his actual possession
invoices or delivery tickets for such charitable raffle boards or
games which shall show the true name and the complete and exact
address of the manufacturer, the true name and complete and exact
address of the wholesaler or distributor who is the purchaser,
the quantity and description of the charitable raffle boards and
games transported and the true name and complete and exact
address of the person who has or shall assume payment of the West
Virginia state fee, or the tax, if any, of the state or foreign
country at the point of ultimate destination:
Provided, That any
common carrier which has issued a bill of lading for a shipment
of charitable raffle boards and games and is without notice to
itself or to any of its agents or employees that said charitable
raffle boards or games have no proper indicia affixed thereto as
required by section six of this article shall be deemed to have
complied with this article and the vehicle or vessel in which
said charitable raffle boards or games are being transported
shall not be subject to confiscation hereunder. In the absence
of such invoices, delivery tickets or bills of lading, as the
case may be, the charitable raffle boards or games so
transported, the vehicle or vessel in which the charitable raffle
boards or games are being transported and any paraphernalia or
devices used in connection with such, are declared to be
contraband goods and may be seized by the commissioner, his
agents or employees or by any peace officer of the state without
a warrant.
Any person who transports charitable raffle boards or games
in violation of this section shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than three
hundred dollars nor more than five thousand dollars, or
imprisoned in the county jail not more than one year, or both
fined and imprisoned.
Charitable raffle boards and games seized under this section
shall be forthwith destroyed in the manner provided hereinafter
in this section and such destruction shall not relieve the owner
of the destroyed charitable raffle boards and games of any action
by the commissioner for violations of this or any other sections
of this article.
The commissioner shall immediately, after any seizure made
pursuant to this section, institute a proceeding for the
confiscation thereof in the circuit court of the county in which
the seizure is made. The court may proceed in a summary manner
and may direct confiscation by the commissioner:
Provided, That
any person claiming to be the holder of a security interest in
any vehicle or vessel, the disposition of which is provided for
above, may present his petition so alleging and be heard, and in
the event it appears to the court that the property was
unlawfully used by a person other than such claimant, and if the
said claimant acquired his security interest in good faith and
without knowledge that the vehicle or vessel, was going to be so
used, the court shall waive forfeiture in favor of such claimant
and order the vehicle or vessel returned to such claimant.
§47-23-11. Administration; rules.
(a) The commissioner shall promulgate rules to administerthe provisions of this article in accordance with the provisions
of chapter twenty-nine-a of this code. Additionally, the
commissioner shall promulgate a rule which sets forth a means of
verifying on the face of every charitable raffle boards or games
that the charitable raffle boards or games is distributed by a
wholesaler licensed pursuant to the provisions of this article.
(b) The commissioner shall deny an application for a license
if he finds that the issuance thereof would be in violation of
the provisions of this article.
(c) The commissioner may suspend, revoke or refuse to renew
any license issued hereunder for a material failure to maintain
the records or file the reports required by this article or
administrative rule if the commissioner finds that said failure
will substantially impair the commissioner's ability to
administer the provisions of this article with regard to said
licensee.
(d) The burden of proof in any administrative or court
proceeding is on the applicant to show cause why a charitable
raffle boards or games wholesaler's or distributor's license
should be issued or renewed and on the licensee to show cause why
its license should not be revoked or suspended.
§47-23-12. 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 havebeen rendered, and the applicability of such provision to other
persons or circumstances shall not be affected thereby.
§47-23-13. General procedure and administration.
Each and every provision of the "West Virginia Tax Procedure
and Administration Act" set forth in article ten, chapter eleven
of this code shall apply to the fees imposed by this article with
like effect as if said act were applicable only to the fees
imposed by this article and were set forth in extensio in this
article.
__________
(NOTE: The purpose of this bill is to provide necessary
regulation of charitable bingo, charitable raffle boards and
games. This regulation is provided through dedication of license
fees for the purpose of supporting criminal investigatory
activities.)
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