Introduced Version
Senate Bill 520 History
OTHER VERSIONS -
Committee Substitute (1)
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 520
(By Senators Cann, Kessler (Mr. President), M. Hall, Kirkendoll,
McCabe, Plymale, Stollings, Tucker, Williams and Palumbo)
____________
[Introduced March 13, 2013; referred to the Committee on Economic
Development; and then to the Committee on Finance .]
____________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated
§5B-2I-1, §5B-2I-2,
§5B-2I-3, §5B-2I-4, §5B-2I-5, §5B-2I-6, §5B-2I-7, §5B-2I-8,
§5B-2I-9, §5B-2I-10, §5B-2I-11, §5B-2I-12, §5B-2I-13,
§5B-2I-14, §5B-2I-15, §5B-2I-16, §5B-2I-17, §5B-2I-18,
§5B-2I-19, §5B-2I-20, §5B-2I-21, §5B-2I-22, §5B-2I-23,
§5B-2I-24, §5B-2I-25, §5B-2I-26, §5B-2I-27, §5B-2I-28,
§5B-2I-29, §5B-2I-30, §5B-2I-31, §5B-2I-32, §5B-2I-33,
§5B-2I-34, §5B-2I-35, §5B-2I-36, §5B-2I-37, §5B-2I-38,
§5B-2I-39, §5B-2I-40 and §5B-2I-41; to amend said code by
adding thereto a new article, designated §11-6L-1, §11-6L-2,
§11-6L-3, §11-6L-4, §11-6L-5, §11-6L-6 and §11-6L-7; and to
amend said code by adding thereto a new article, designated
§11-21A-1, §11-21A-2, §11-21A-3, §11-21A-4, §11-21A-5, §11-21A-6, §11-21A-7, §11-21A-8, §11-21A-9, §11-21A-10,
§11-21A-11, §11-21A-12, §11-21A-13, §11-21A-14, §11-21A-15,
§11-21A-16, §11-21A-17 and §11-21A-18
,
all relating generally
to economic development and job creation
;
creating the West
Virginia Project Launch Pad Act providing short title;
providing legislative purpose and finding; defining certain
terms; providing criteria for establishment of West Virginia
project launchpads by Governor; allowing county commissions
and county councils to apply for launchpad designations;
providing for form and content of applications; specifying
process for review of applications and criteria for
designating geographic areas as launchpads and for expansion
and decertification of launchpads; providing economic benefits
for businesses locating or expanding in launchpads including
state and local tax relief and other economic benefits;
prohibiting qualified businesses in a launchpad from employing
illegal aliens, engaging in illegal activity; being delinquent
in payment of state and local taxes; permitting transfer of
economic benefits to successor businesses; requiring qualified
business to comply with applicable zoning laws and state and
local building and other codes; providing for recapture of
taxes and other economic benefits under specified
circumstances; promulgation of rules; imposing civil and criminal penalties for noncompliance; providing rules of
application and construction; requiring periodic reports to
Governor and Legislature; providing for severability and
expiration; providing a special method for appraising property
in launchpad for economic development; providing short title;
defining certain terms; providing method of valuation of
launchpad property; providing for initial determination of
value by assessor and for protest and appeals; requiring
periodic reports to Governor and Legislature and specifying
effective dates; creating the Promoting West Virginia
Employment Act' providing short title and scope of article;
defining certain terms; providing qualification for benefits;
specifying benefits upon application and review; specifying
annual cap on benefits; providing for recapture of benefits;
providing for administration and enforcement of article
including issuance of regulations; requiring periodic reports
to Governor and Legislature; and specifying effective dates.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated
§5B-2I-1, §5B-2I-2,
§5B-2I-3, §5B-2I-4, §5B-2I-5, §5B-2I-6, §5B-2I-7, §5B-2I-8,
§5B-2I-9, §5B-2I-10, §5B-2I-11, §5B-2I-12, §5B-2I-13, §5B-2I-14,
§5B-2I-15, §5B-2I-16, §5B-2I-17, §5B-2I-18, §5B-2I-19, §5B-2I-20, §5B-2I-21, §5B-2I-22, §5B-2I-23, §5B-2I-24, §5B-2I-25, §5B-2I-26,
§5B-2I-27, §5B-2I-28, §5B-2I-29, §5B-2I-30, §5B-2I-31, §5B-2I-32,
§5B-2I-33, §5B-2I-34, §5B-2I-35, §5B-2I-36, §5B-2I-37, §5B-2I-38,
§5B-2I-39, §5B-2I-40 and §5B-2I-41; to amend said code by adding
thereto a new article, designated §11-6L-1, §11-6L-2, §11-6L-3,
§11-6L-4, §11-6L-5, §11-6L-6 and §11-6L-7; and to amend said code
by adding thereto a new article, designated §11-21A-1, §11-21A-2,
§11-21A-3, §11-21A-4, §11-21A-5, §11-21A-6, §11-21A-7, §11-21A-8,
§11-21A-9, §11-21A-10, §11-21A-11, §11-21A-12, §11-21A-13,
§11-21A-14, §11-21A-15, §11-21A-16, §11-21A-17 and §11-21A-18
, all
to read as follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2I. WEST VIRGINIA PROJECT LAUNCHPAD ACT.
§5B-2I-1. Short title.
This article shall be known and may be cited as the "West
Virginia Project Launchpad Act."
§5B-2I-2. Purpose and legislative findings.
(a) Purpose. -- The purpose of this article is to encourage
economic opportunity, greater capital investment and development of
the use in this state of new state-of-the art technologies by
enacting the West Virginia Project Launchpad Act.
(b) Legislative findings. --
(1) West Virginia's economy is under siege from actions and
inactions of the federal government, which has declared war on coal
but has no comprehensive energy policy, federal policies that
stifle economic development and expansion and by a federal debt
that now equals or exceeds the country's annual gross domestic
product.
(2) The economy of the past that West Virginia has relied upon
for employment, business activity, taxes and other items is rapidly
shrinking and West Virginia has not done a good job to position
itself for economic development in the new economy, which largely
can be located anywhere in the United States or for that matter, in
many instances, the world.
(3) Future expansion and development of the West Virginia
economy, job creation potential and the physical environment are
driven by the flow of energy and the nonstop emergence of new
technologies.
(4) State-of-the-art technologies are being developed,
demonstrated and manufactured or used in manufacturing in other
states in order to support economic development by responding to
the emergence of new technologies and the rapidly expanding
world-wide export market for such technologies.
(5) In order to retain college and university graduates
trained in use of the new technologies and to encourage graduates of out-of-state colleges and universities trained in use of new
technologies to be located in this state, employers are encouraged
to assist their employees in paying their student loans.
(6) West Virginia has been slow to recognize the potential
economic and technical benefits of these emerging technologies.
(7) The Legislature finds that it is in the public interest
and the general welfare of the citizens of West Virginia to:
(A) Establish a foothold in the West Virginia economy for
manufacturers of advanced products and the development of
businesses employing other emerging technologies that are magnets
for capital investment and produce new jobs that are
characteristically knowledge-based;
(B) Encourage the application of nanotechnology and other
supporting technology to:
(i) Aeronautics and space;
(ii) Agriculture;
(iii) Biotechnology;
(iv) Environment;
(v) Manufacturing and materials science;
(vi) Medicine and health;
(vii) Nanoelectronics and computer technology;
(viii) National and homeland security; and
(ix) Photonics; and
(C) Encourage the manufacture, sale and use of alternative
fuel vehicles fueled by natural gas, electricity, hydrogen or other
alternative fuel and development of the infrastructure necessary to
the convenient and efficient refueling of such vehicles.
(8) There exist in this state areas of economic distress
characterized by high unemployment, low investment of new capital,
inadequate dwelling conditions, blighted conditions, underutilized,
obsolete or abandoned industrial, commercial and residential
structures and deteriorating tax bases.
(9) These areas require coordinated efforts by private and
public entities to restore prosperity and enable these areas to
make significant contributions to the economic and social life of
this state.
(10) Long-term economic viability of these areas requires the
cooperative involvement of residents, businesses, state and local
elected officials and community organizations.
(11) It is in the public interest and general welfare of the
people of this state for state and local governments to assist and
encourage the creation of West Virginia project launchpads for
economic development and to provide temporary relief from certain
taxes within the West Virginia launchpad to accomplish the purposes
of this article.
§5B-2I-3. Definitions.
(a) General. -- When used in this article, or in the
administration of this article, terms defined in subsection (b) of
this section have the meanings ascribed to them by this section,
unless a different meaning is clearly required by either the
context in which the term is used, or by specific definition, in
this article.
(b) Terms defined. --
(1) "Advanced coal technology" includes, but is not limited
to, a technology that is used in a new or existing
energy-generating facility to reduce airborne carbon emissions
associated with the combustion or use of coal and includes, but is
not limited to, carbon dioxide capture and sequestration
technology, supercritical technology, advanced supercritical
technology as that technology is determined by the West Virginia
Public Service Commission, ultrasupercritical technology and
pressurized fluidized bed technology and any other resource,
method, project or technology certified by the Public Service
Commission as advanced coal technology: Provided, That the
technology was not in commercial use anywhere in the United States
before July 1, 2013.
(2) "Advanced information technology" means the development,
installation and implementation of computer systems and
applications that utilize cloud computing, quantum computing or the next evolution beyond cloud and quantum computing: Provided, That
the technology was not in commercial use anywhere in the United
States before July 1, 2013.
(3) "Advanced manufacturing" means the application of
state-of-the-art technologies, processes and methods to design and
manufacture tangible personal property for commercial or industrial
use or for use by consumers: Provided, That the technology was not
in commercial use anywhere in the United States before July 1,
2013.
(4) "Bioinformatics" means the application of statistics and
computer science to the field of molecular biology and entails the
creation and advancement of databases, algorithms, computational
and statistical techniques and theory to solve formal and practical
problems arising from the management and analysis of biological
data. The primary goal of bioinformatics is to increase the
understanding of biological processes. What sets bioinformatics
apart from other approaches is its focus on developing and applying
computationally intensive techniques (e.g., pattern recognition,
data mining, machine learning algorithms and visualization) to
achieve this goal: Provided, That the technology was not in
commercial use anywhere in the United States before July 1, 2013.
(5) "Bioscience" means the use of compositions, methods and
organisms in cellular and molecular research, development and manufacturing processes for such diverse areas as pharmaceuticals,
medical therapeutics, medical diagnostics, medical devices, medical
instruments, biochemistry, microbiology, veterinary medicine, plant
biology, agriculture and industrial, environmental, and homeland
security applications of bioscience, and future developments in the
biosciences. Bioscience includes biotechnology and life sciences:
Provided, That the technology was not in commercial use anywhere in
the United States before July 1, 2013.
(6) "Bioscience company" means a corporation, limited
liability company, S corporation, partnership, registered limited
liability partnership, foundation, association, nonprofit entity,
business trust, group, or other entity that is engaged in the
business of bioscience in this state and has business operations in
this state, including, without limitation, research, development,
or production directed towards developing or providing bioscience
products or processes for specific commercial or public purposes
and are identified by the following NAICS codes: 325193, 325199,
325311, 325320, 325411, 325412, 325413, 325414, 334510, 334516,
334517, 339112, 339113, 339115, 541380, 541712, 541940, 621511,
621512 and 622110. "Bioscience company" does not include a sole
proprietorship.
(7) "Biotechnology" means those fields focusing on
technological developments in areas such as biocomputing, biodefense, bioinformatics, genetic engineering, genomics,
molecular biology, nanotechnology, proteomics and physiomics:
Provided, That the technology was not in commercial use anywhere in
the United States before July 1, 2013.
(8) "Business" means any activity engaged in by any person in
this state that is taxable under article twenty-one, twenty-three
or twenty-four of chapter eleven of this code (or any combination
of those articles of that chapter).
(9) "Business segment" means a component or subset of a
business enterprise that: (A) Provides a single product or service
or a group of related products and services; (B) is subject to
risks and returns that are different from those of other business
segments; and (C) earns revenue for the business enterprise.
(10) "Clean coal technology" means a technology first used
commercially in the United States on or after July 1, 2013, that
significantly reduces the environmental impact of coal usage
including, but not limited to, coal gasification and carbon capture
and storage.
(11) "Clean natural gas technology" means a technology first
used commercially in the United States on or after July 1, 2013,
that significantly reduces the environmental impact of natural gas.
(12) "Compensation" means wages, salaries, commissions, the
cost of health insurance benefits and any other form of
remuneration paid to employees for personal services.
(13) "Controlled group" means one or more chains of
corporations connected through stock ownership with a common parent
corporation if stock possessing at least fifty percent of the
voting power of all classes of stock of each of the corporations is
owned directly or indirectly by one or more of the corporations;
and the common parent owns directly stock possessing at least fifty
percent of the voting power of all classes of stock of at least one
of the other corporations.
(14) "Corporation" means any corporation, joint-stock company
or association, and any business conducted by a trustee or trustees
wherein interest or ownership is evidenced by a certificate of
interest or ownership or similar written instrument.
(15) "County" or "county of this state" means a county of this
state listed in article one, chapter one of this code.
(16) "Department of Commerce" means the Department of Commerce
established in article two, chapter five-f of this code.
(17) "Department of Revenue" means the Department of Revenue
established in article two, chapter five-f of this code.
(18) "Designee" in the phrase "or his or her designee", when
used in reference to:
(A) The Secretary of Commerce, means any officer or employee
of the Department of Commerce or any agency of that Department as
specified in article two, chapter five-f of this code, duly
authorized by the Secretary of Commerce directly, or indirectly by one or more redelegations of authority, to perform the functions
mentioned or described in this article for the Secretary of
Commerce;
(B) The Secretary of Revenue, means any officer or employee of
the Department of Revenue or any agency of that department as
specified in article two, chapter five-f of this code, duly
authorized by the Secretary of Revenue directly, or indirectly by
one or more redelegations of authority, to perform the functions
mentioned or described in this article for the Secretary of
Revenue; and
(C) The State Tax Commissioner, means any officer or employee
of the Tax Division of the Department of Revenue established in
article one, chapter eleven of this code, duly authorized by the
Tax Commissioner directly, or indirectly by one or more
redelegations of authority, to perform the functions mentioned or
described in this article for the Tax Commissioner;
(19) "Eligible taxpayer" means a new business or a new segment
of a business that is primarily engaged in an emerging technology
industry or that is primarily utilizing new innovative business
technologies, that makes at least the minimum required qualified
investment in a new or expanded business facility located in this
state and creates the required number of new jobs that pay good
salaries and provide health insurance benefits, and that is subject
to any of the taxes imposed by article twenty-one, twenty-three and twenty-four of chapter eleven of this code (or any one or any
combination of those articles).
(20) "Emerging technologies" are technologies that are
currently being developed or will be developed over the next five
to ten years, that represent significant technological developments
that broach new territory in some significant way in their field
and which will substantially alter the business and social
environment. Examples of currently emerging technologies include,
but are not limited to, advanced coal technologies, alternative
fuel vehicles, artificial intelligence, biotechnology, clean coal
and clean natural gas technologies, cognitive science, cloud
computing, quantum computing, man-machine communications,
nanotechnology, photonics, photovoltaic devices and advanced
robotics. Whether a technology is an emerging technology is
determined as of the date the new business or a new segment of an
existing business is placed in service or use in this state.
Emerging technologies do not include any technology that was in
commercial use anywhere in the United States before July 1, 2013.
(21) "Employer" means an association, corporation,
partnership, limited partnership, limited liability company, joint
venture, or any other business entity that is an employer.
(22) "Expanded business facility" means any business facility
(other than a new or replacement facility) resulting from the
acquisition, construction, reconstruction, installation or erection of improvements or additions to existing property in this state
when the improvements or additions are purchased on or after July
1, 2013, but only to the extent of the taxpayer's qualified
investment in the improvements or additions and the extent to which
the expansion of the business facility is directly used in a new
segment of the taxpayer that primarily employs an emerging
innovative business technology.
(23) "Governing body of a municipal corporation" means the
"governing body" as defined in article one, chapter eight of this
code.
(24) "Governor" means the duly elected Governor of this state.
(25) "Health insurance benefits" means employer-provided
coverage for medical expenses of the employee or the employee and
his or her family under a group accident or health plan, or
employer contributions to an Archer medical savings account, as
defined in Section 220 of the Internal Revenue Code of 1986, as
amended, or to a health savings account, as defined in Section 223
of the Internal Revenue Code, of the employee when the employer's
contribution to any such account is not less than fifty percent of
the maximum amount permitted for the year as employer-provided
coverage under Section 220 or 223 of the Internal Revenue Code,
whichever section is applicable.
(26) "Includes" and "including", when used in a definition or
sentence contained in this article, shall not be considered to exclude other things otherwise within the meaning of the term being
defined or the sentence in which the word is used.
(27) "Innovative business technologies" means and includes,
but is not limited to, emerging technologies and other business
technologies that primarily use state-of-the-art methodologies,
practices or techniques to manufacture, produce or provide its
primary goods or services. Innovative business technologies do not
include any technology that was in commercial use anywhere in the
United States prior to July 1, 2013.
(28) "Internal Revenue Code of 1986, as amended", or "Internal
Revenue Code", means the United States Internal Revenue Code of
1986 as codified in Title 26 of the United States Code, as amended,
and as defined in section three, article twenty-four, chapter
eleven of this code.
(29) "Leased property" does not include property which the
taxpayer is required to show on its books and records as an asset
under generally accepted principles of financial accounting. If the
taxpayer is prohibited from expensing the lease payments for
federal income tax purposes, the property shall be treated as
purchased property under this section.
(30) "Life science" means any of several branches of science,
such as biology, medicine, anthropology or ecology, that deal with
living organisms and their organization, life processes and
relationships to each other and their environment.
(31) "Mayor" means "mayor" as defined in article one, chapter
eight of this code.
(32) "Municipal corporation" or "municipality" means a
"municipal corporation" of this state as defined in article one,
chapter eight of this code.
(33) "Nanotechnology" means the branch of engineering that
deals with things smaller than one hundred nanometers.
Nanotechnology includes the materials and systems whose structures
and components exhibit novel and significantly improved physical,
chemical, and biological properties, phenomena, and processes due
to their nanoscale size.
(34) "New business" means any business primarily employing
emerging technology or innovative business technology whose
ownership and activities are not closely related to a preexisting
business. A mere change in the stock ownership of a corporation, or
the equity ownership of a partnership or other entity treated as a
partnership for federal income tax purposes, shall not affect its
status as an existing business. Additionally, a new business that
acquires substantially all of the assets of a corporation or other
business entity or of a sole proprietorship shall not be treated as
a new business for purposes of this article. In determining whether
or not a new business is closely related to a preexisting business,
all facts and circumstances shall be considered by the Tax
Commissioner. The existence of a majority of the following factors establish that a new business is closely related to an existing
business:
(A) The new business' products or services are very similar to
the products or services provided by the preexisting business;
(B) The new business markets products and services to the same
class of customers as that of the preexisting business;
(C) The new business is conducted in the same general location
as the preexisting business;
(D) The new business requires the use of the same or similar
operating assets as those used in the preexisting business;
(E) The new business' economic success builds on, or depends
on, the success of the preexisting business;
(F) The activity of the new business is of a type that would
normally be treated as a unit with the preexisting business in the
accounting records of the preexisting business;
(G) If the new business and the preexisting business are
regulated or licensed, they are regulated or licensed by the same
or similar governmental authority; and
(H) Twenty percent or more of the equity of the new business
is collectively owned by individuals and/or businesses that
collectively owned more than fifty percent of the equity of the
preexisting business.
These eight listed factors are not the only ones that may be
considered by the Tax Commissioner. Others factors may also be taken into account, in the discretion of the Tax Commissioner.
However, this definition shall not exclude the categorization of a
business as a new business for the sole reason that the entity
engaging in the new business already does business in this state.
(35) "New business facility" means a business facility located
in this state which satisfies each of the following requirements:
(A) The facility is employed by the taxpayer in a new business
or in a new segment of an existing business, the conduct of a
business the net income of which is or will be taxable under
article twenty-one, twenty-three or twenty-four of chapter eleven
of this code. The facility is not considered a new business
facility in the hands of the taxpayer if the taxpayer's only
activity with respect to the facility is to lease it to another
person or persons;
(B) The facility is purchased by, or leased to, the taxpayer
on or after July 1, 2013;
(C) The facility was not purchased or leased by the taxpayer
from a related person: Provided, That the Tax Commissioner may
waive this requirement if the facility was acquired from a related
person for its fair market value and the acquisition was not tax
motivated; and
(D) The facility was not in service or use during the ninety
days immediately prior to transfer of the title to the facility, or
prior to the commencement of the term of the lease of the facility: Provided, That this ninety-day period may be waived by the Tax
Commissioner if the Commissioner determines that persons employed
at the facility may be treated as "new employees" as that term is
defined in this subsection.
(36) "New employee" means:
(A) A person residing and domiciled in this state, hired by
the taxpayer to fill a position or a job in this state which
previously did not exist in the taxpayer's business enterprise in
this state prior to the date on which the taxpayer's qualified
investment is placed in service or use in this state. The term "new
employee" also includes a person employed by the taxpayer who works
outside this state who relocates in this state, becomes domiciled
in this state and is employed full-time at the new business
facility in this state. In no case may the number of new employees
directly attributable to the investment for purposes of this credit
exceed the total net increase in the taxpayer's employment in this
state: Provided, That the Tax Commissioner may require that the net
increase in the taxpayer's employment in this state be determined
and certified for the taxpayer's controlled group.
(B) A person is considered to be a "new employee" only if the
person's duties in connection with the operation of the business
facility are on:
(i) A regular, full-time and permanent basis:
(I) "Full-time" means employment for at least one hundred forty hours per month at a wage not less than the prevailing state
or federal minimum wage, depending on which minimum wage provision
is applicable to the business;
(II) "Permanent" does not include employment that is temporary
or seasonal and therefore the wages, salaries and other
compensation paid to the temporary or seasonal employees may not be
considered for purposes of sections five and seven of this article;
or
(ii) A regular, part-time and permanent basis: Provided, That
the person is customarily performing the duties at least twenty
hours per week for at least six months during the taxable year.
(37) "New job" means a job which did not exist in the business
of the taxpayer in this state prior to the taxpayer's qualified
investment being made, and which is filled by a new employee.
(38) "New property" means:
(A) Property, the construction, reconstruction or erection of
which is completed on or after July 1, 2013, and placed in service
or use after that date; and
(B) Property leased or acquired by the taxpayer that is placed
in service or use in this state on or after July 1, 2013, if the
original use of the property commences with the taxpayer and
commences after that date.
(39) "NAICS" means the 2012 United States North American
Industry Classification System issued by the Census Bureau of the United States Department of Commerce.
(40) "Opportunity plan" means a written plan that addresses
the criteria and meets the requirements of section six of this
article.
(41) "Order" means an order entered by a county commission or
county council.
(42) "Ordinance" means an "ordinance" as defined in article
one of chapter eight of this code.
(43) "Original use" means the first use to which the property
is put, whether or not the use corresponds to the use of the
property by the taxpayer.
(44) "Partnership" includes a syndicate, group, pool, joint
venture or other unincorporated organization through or by means of
which any business or venture is carried on, and which is not a
trust or estate, a corporation or a sole proprietorship and which
is treated as a partnership for tax purposes under the laws of this
state. The term "partner" includes a member in such a syndicate,
group, pool, joint venture or other organization.
(45) "Person" includes any natural person, corporation or
partnership, and includes any entity that is treated like a
corporation or partnership for federal income tax purposes.
(46) "Photonics" includes the generation, emission,
transmission, modulation, signal processing, switching,
amplification, detection and sensing of light: Provided, That the technology was not in commercial use anywhere in the United States
before July 1, 2013.
(47) "Photovoltaic devices" means those products designed,
manufactured and produced to convert sunlight directly into
electricity: Provided, That the technology was not in commercial
use anywhere in the United States before July 1, 2013.
(48) "Political subdivision" means a county or municipal
corporation in this state.
(49) "Property purchased or leased for business expansion"
means:
(A) Included property. -- Except as provided in paragraph (B)
of this subdivision, the term "property purchased or leased for
business expansion" means real property and improvements thereto,
and tangible personal property, but only if the real or personal
property was constructed, purchased, or leased and placed in
service or use by the taxpayer, for use as a component part of a
new business facility or expanded business facility as defined in
this section, which is located within the State of West Virginia.
This term includes only:
(i) Real property and improvements thereto having a useful
life of four or more years, placed in service or use on or after
July 1, 2013, by the taxpayer;
(ii) Real property and improvements thereto, acquired by
written lease having a primary term of ten or more years and placed in service or use by the taxpayer on or after July 1, 2013;
(iii) Tangible personal property placed in service or use by
the taxpayer on or after July 1, 2013, with respect to which
depreciation, or amortization in lieu of depreciation, is allowable
in determining the personal or corporation net income tax liability
of the business taxpayer under article twenty-one, twenty-three or
twenty-four of chapter eleven of this code, and which has a useful
life, at the time the property is placed in service or use in the
state, of four or more years;
(iv) Tangible personal property acquired by written lease
having a primary term of four years or longer, that commenced and
was executed by the parties thereto on or after July 1, 2013, shall
be included within this definition if the leased tangible personal
property is used as a component part of a new or expanded business
facility; and
(v) Tangible personal property owned or leased, and used by
the taxpayer at a business location outside the state which is
moved into the State of West Virginia on or after July 1, 2013, for
use as a component part of a new or expanded business facility
located in the state: Provided, That if the property is owned, it
must be depreciable or amortizable personal property for income tax
purposes, and have a useful life of four or more years remaining at
the time it is placed in service or use in the state, and if the
property is leased, the primary term of the lease remaining at the time the leased property is placed in service or use in the state,
must be four or more years;
(B) Excluded property. -- The term "property purchased or
leased for business expansion" does not include:
(i) Property owned or leased by the taxpayer and for which the
taxpayer was previously allowed tax credit under article 13C, 13D,
13E, 13H, 13Q, 13R, 13S, 13T, 13U, 13AA or 13BB, chapter 11 of this
code;
(ii) Property owned or leased by the taxpayer and for which
the seller, lessor, or other transferor, was previously allowed tax
credit under article 13C, 13D, 13E, 13H, 13Q, 13R, 13S, 13T, 13U,
13AA or 13BB, chapter 11 of this code, or the tax credits allowed
by this article;
(iii) Property owned or leased by the taxpayer that is used to
qualify for any other credit against state taxes allowed by this
code;
(iv) Repair costs, including materials used in the repair,
unless for federal income tax purposes the cost of the repair must
be capitalized and not expensed;
(v) Airplanes;
(vi) Property which is primarily used outside the state, with
use being determined based upon the amount of time the property is
actually used both within and outside the state;
(vii) Property which is acquired incident to the purchase of the stock or assets of the seller, unless for good cause shown, the
commissioner consents to waiving this requirement;
(viii) Natural resources in place; or
(ix) Purchased or leased property the cost or consideration
for which cannot be quantified with any reasonable degree of
accuracy at the time the property is placed in service or use:
Provided, That when the contract of purchase or lease specifies a
minimum purchase price or minimum annual rent the amount thereof
shall be used to determine the qualified investment in the property
under section eight of this article if the property otherwise
qualifies as property purchased or leased for business expansion.
(50) "Purchase" means any acquisition of property, but only
if:
(A) The property is not acquired from a person whose
relationship to the person acquiring it would result in the
disallowance of deductions under Section 267 or 707(b) of the
United States Internal Revenue Code of 1986, as amended;
(B) The property is not acquired by one component member of a
controlled group from another component member of the same
controlled group. The commissioner may waive this requirement if
the property was acquired from a related party for its then fair
market value; and
(C) The basis of the property for federal income tax purposes,
in the hands of the person acquiring it, is not determined:
(i) In whole or in part, by reference to the federal adjusted
basis of the property in the hands of the person from whom it was
acquired; or
(ii) Under Section 1014(e) of the United States Internal
Revenue Code of 1986, as amended.
(51) "Qualified activity" means any business or other activity
subject to any of the taxes imposed by article 13, 21, 23 or 24,
chapter 11 of this code (or any combination of those articles), but
does not include the activity of severance or production of natural
resources.
(52) "Qualified business" means a business authorized to do
business in this state which is physically located or partially
located within an authorized West Virginia project launchpad and is
engaged in the active conduct of a trade or business in accordance
with the requirements of section twelve of this article for the
taxable year. Physical presence in an authorized West Virginia
project launchpad of an agent, broker, employee or representative
of a business physically located outside the geographic boundaries
of an authorized West Virginia project launchpad does not, for
purposes of this article, result in the business being engaged in
the active conduct of trade or business within the project
launchpad for purposes of this article.
(53) "Qualified political subdivision" means a county
commission, county council or municipal corporation that has real property within its jurisdiction that has been designated by the
Governor pursuant to this article as a West Virginia project
launchpad for economic development, including an extension thereof.
(54) "Resident" means an individual who is domiciled and
resides in an area that is designated as an authorized West
Virginia project launchpad for economic development pursuant to
this article and who meets the residency requirements of section
eleven of this article.
(55) "Related person" means:
(A) A corporation, partnership, association or trust
controlled by the taxpayer;
(B) An individual, corporation, partnership, association or
trust that is in control of the taxpayer;
(C) A corporation, partnership, association or trust
controlled by an individual, corporation, partnership, association
or trust that is in control of the taxpayer; or
(D) A member of the same controlled group as the taxpayer.
For purposes of this definition, "control", with respect to a
corporation, means ownership, directly or indirectly, of stock
possessing more than fifty percent of the total combined voting
power of all classes of the stock of the corporation entitled to
vote. "Control", with respect to a trust, means ownership, directly
or indirectly, of fifty percent or more of the beneficial interest
in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or
association or of a beneficial interest in a trust is determined in
accordance with the rules for constructive ownership of stock
provided in Section 267(c) of the United States Internal Revenue
Code of 1986, as amended, other than paragraph (3) of that section.
(56) "Replacement facility" means any property (other than an
expanded facility) that replaces or supersedes any other property
located within this state that:
(A) The taxpayer or a related person used in or in connection
with any activity for more than two years during the period of five
consecutive years ending on the date the replacement or superseding
property is placed in service by the taxpayer; or
(B) Is not used by the taxpayer or a related person in or in
connection with any qualified activity for a continuous period of
one year or more commencing with the date the replacement or
superseding property is placed in service by the taxpayer.
(57) "Secretary of Commerce" means the chief executive officer
of the Department of Commerce established in article one, chapter
five-f of this code, or his or her designee.
(58) "Secretary of Revenue" means the chief executive officer
of the Department of Revenue established in article one, chapter
five-f of this code, or his or her designee.
(59) "State-of-the-art technology" includes emerging
technologies and innovative business technologies and means the highest level of development, as of a device, technique, or
scientific field achieved at a particular time: Provided, That the
technology was not in commercial use anywhere in the United States
before July 1, 2013.
(60) "Tax benefit" means and includes a tax exemption, tax
deduction, tax abatement, tax credit, special valuation methodology
or other tax benefit pursuant to this article.
(61) "Tax Commissioner" or "Commissioner" means the chief
executive officer of the Tax Division of the Department of Revenue
provided in article one, chapter eleven of this code, or his or her
designee.
(62) "Taxpayer" means any person subject to any of the taxes
imposed by article twenty-one, twenty-three or twenty-four of
chapter eleven of this code (or any combination of those articles).
(63) "This code" means the Code of West Virginia, 1931, as
amended.
(64) "This state" means the State of West Virginia.
(65) "Unoccupied parcel" means a parcel on which there is no
commercial activity on the date an application for extension of an
authorized West Virginia project launchpad for economic
development, in which the parcel is included, is submitted to the
Secretary of Commerce. Construction activity on a parcel shall not
be deemed to be commercial business activity for purposes of this
definition.
(66) "Used property" means property acquired after June 30,
2013, that is not "new property".
(67) "West Virginia project launchpad for economic
development" or "economic development launchpad" means a defined
geographic area comprised of one or more political subdivisions or
portions of political subdivisions of this state authorized by the
Governor under this article as a West Virginia project launchpad
for economic development.
§5B-2I-4. West Virginia project launchpad.
(a) Establishment. - There is hereby established within the
Department of Commerce, established pursuant to article two,
chapter five-f of this code, the Project Launchpad program
providing for West Virginia launchpads for economic development
authorized by the Governor pursuant to this article.
(b) Authorization of launchpads. - The Governor may authorize
not more than ten West Virginia project launchpads for economic
development. Businesses that locate in a West Virginia launchpad
for economic development and utilize as a primary component of
their business at that location an "emerging technology", an
"innovative business technology" or a "state-of-the-art technology"
as those terms are defined in section two of this article, and
businesses already located in a geographic area that is designated
as a West Virginia project launchpad for economic development, that
expand their business after the designation of the geographic area as a West Virginia project launchpad for economic development that
expand their current facility and increase the number of employees
at the facility and employ as a primary component of the expansion
an "emerging technology", an "innovative business technology" or a
"state-of-the-art technology" as those terms are defined in section
two of this article shall be entitled to the benefits authorized in
this article.
(c) Size of launchpad. - A West Virginia project launchpad for
economic development may not be less than ten contiguous acres nor
more than 2,500 contiguous acres per launchpad for economic
development.
(d) Geographic limitation. - No West Virginia project
launchpad for economic development may encompass the entire
geographic area of the municipal corporation, or of the county, in
which the proposed project launchpad for economic development would
be located.
(e) Municipality may have one launchpad; exception. - A
municipal corporation may not be part of more than one West
Virginia project launchpad for economic development, except that a
municipal corporation may join with another municipal corporation
or with the county commission or county council in proposing a
project launchpad for economic development that includes land
located within two municipalities, or land within and outside a
municipal corporation, when the application required by this article is also approved by the county commission of the county in
which the property is located.
(f) No overlap of boundaries of launchpads. - The boundaries
of two or more West Virginia project launchpads for economic
development may not overlap.
(g) Duration of launchpad designation. - The designation of a
geographic area as a West Virginia project launchpad for economic
development is for a period not to exceed sixteen years, beginning
January 1, 2014 and ending December 31, 2029, unless the launchpad
is sooner decertified as provided in this article, or the ending
date is extended by the Legislature.
(h) Authorization for local tax exemption. - Every county
commission, county council and municipal corporation within which
a proposed West Virginia project launchpad for economic development
would be located, whether in whole or in part, is hereby authorized
to provided tax exemptions, deductions, abatements or credits to
persons or businesses qualified under this article. The county
commission, county council and municipal corporation shall agree to
provide tax exemptions, deductions, abatements or credits from all
local taxes as set forth in this article in order to qualify to
have a geographic area within the county or municipal corporation
designated as a West Virginia project launchpad for economic
development. The tax benefit shall be effective on or before July
1, 2014, except that the ordinance or order providing for the tax benefit may be made contingent upon the area being authorized by
the Governor of West Virginia project launchpad for economic
development as provided in this article. The tax benefit shall be
binding upon the county commission, county council and municipal
corporation for the duration of the West Virginia project launchpad
designation.
§5B-2I-5. Application for designation.
(a) Counties. - On or before January 1, 2014, the president of
a county commission or county council may apply to the Secretary of
Commerce to have one or more geographic areas in his or her county
designated by the Governor as a West Virginia project launchpad for
economic development.
(b) Municipalities. - On or before October 1, 2013, the mayor
of a municipal corporation may apply to the county commission or
county council of his or her county to have one geographic area
within the municipal corporation included in the county's
application under subsection (a) of this section to have one or
more geographic areas of the county designated by the Governor as
a West Virginia project launchpad for economic development.
§5B-2I-6. Form and content of application.
(a) In general. -- The application shall be in a form
prescribed by the Secretary of Commerce. The application shall
provide the information required by the form and shall include the
following:
(1) A true copy of the order entered or resolution adopted by
the county commission or county council of the county authorizing
submission of the application.
(2) A true copy of the ordinance adopted by the governing body
of the municipality, or the county commission or county council of
a county in which the West Virginia project launchpad for economic
development would be located, which provides for the tax benefits
and other benefits required by this article. This ordinance may be
adopted contingent upon the geographic area being designated a West
Virginia launchpad for economic development.
(3) A true copy of the opportunity plan for the proposed West
Virginia project launchpad for economic development adopted by the
county commission or county council of the county in which the
project launchpad will be located or, if the launchpad is located,
in whole or in part, within a municipal corporation, a true copy of
the opportunity plan adopted by the governing body of the municipal
corporation in whose jurisdiction the West Virginia project
launchpad for economic development will be located, in whole or in
part.
(4) A detailed map of the proposed West Virginia project
launchpad for economic development, or the proposed expansion of an
existing project launchpad, including geographic boundaries, total
area and present use and conditions of the land and structures of
the proposed West Virginia project launchpad for economic development, or of a proposed expansion of an existing launchpad.
(5) The statement of the county assessor certifying the
taxable assessed value of real and tangible personal property
having a tax situs in the proposed launchpad for economic
development pad for the most recent tax year for which that
information is available and identifying whether or not the
proposed West Virginia project launchpad for economic development
would be located in an area which has tax revenue dedicated to the
payment of debt.
(b) Content of opportunity plan. - The opportunity plan
required by subsection (a) of this section shall include the
information required by the Secretary of Commerce. The required
information may include one or more of the following:
(1) Evidence of support from and participation of other local
government officials, county boards of education, other educational
institutions, business groups, community organizations and the
public for the creation, or expansion, of a West Virginia project
launchpad for economic development.
(2) A proposal to increase economic opportunity, reduce crime,
improve education, facilitate infrastructure improvement, or reduce
the local regulatory burden on business, and which identifies
potential jobs and job training opportunities within the launchpad.
(3) A general description of the current social, economic and
demographic characteristics of the proposed West Virginia project launchpad for economic development and anticipated improvements in
education, health, human services, public safety and employment
that will result from establishment of the West Virginia project
launchpad for economic development, or from expansion of an
existing launchpad for economic development.
(4) A general description of anticipated activity in the
proposed West Virginia project launchpad for economic development,
or in the proposed expansion of an existing launchpad for economic
development, including, but not limited to, industrial use,
industrial site reuse, commercial use, retail use and residential
use.
(5) Evidence of potential private and public investment in the
proposed West Virginia project launchpad for economic development,
or in the proposed expansion of an existing launchpad for economic
development.
(6) The anticipated role of the proposed West Virginia project
launchpad for economic development in local or regional economic
and community development.
(7) A report on youth at risk within a twenty-five mile radius
from the center of the proposed West Virginia project launchpad for
economic development, to include issues relating to health,
welfare, education and opportunities for employment.
(8) A report on unemployment within a twenty-five mile radius
from the center of the proposed West Virginia project launchpad for economic development, to include issues relating to health, welfare
and education of the unemployed.
(9) Evidence that the proposed West Virginia project launchpad
for economic development meets the required criteria specified in
section eight of this article for authorization of the project
launchpad for economic development, or for a proposed expansion of
an existing launchpad for economic development.
(10) Any other information reasonably required by the
Secretary of Commerce in his or her discretion.
§5B-2I-7. Review of applications.
(a) Action by Secretary. - The Secretary of Commerce, in
consultation with the Secretary of Revenue, shall review all
completed applications submitted timely under this article.
(b) Timely submission. - An application for authorization and
designation of a geographic area as a West Virginia project
launchpad for economic development is timely if it is physically
delivered by hand delivery, or by United States mail or by a
package delivery service, to the Office of the Secretary of
Commerce on or before December 30, 2013.
(c) Review process. - The Governor may, after consultation
with the Secretary of Commerce and the Secretary of Revenue,
authorize up to ten West Virginia project launchpads for economic
development from applications meeting the criteria specified in
this article and based upon need and the likelihood of success of the project launchpad for economic development, as determined by
the Governor in his or her sole discretion.
(d) Authorization. - The Governor shall authorize all West
Virginia project launchpads for economic development by December
31, 2014.
§5B-2I-8. Criteria for authorization of West Virginia project
launchpads for economic development.
(a) Specific criteria. -- In order to qualify for
authorization under this article, the proposed West Virginia
project launchpad for economic development shall meet at least two
of the following twelve criteria:
(1) At least twenty percent of the population is below the
poverty level.
(2) The unemployment rate is 1.25 times the statewide average.
(3) At least twenty percent of all real property within a
five-mile radius of the proposed West Virginia project launchpad
for economic development to be located outside a municipal
corporation is, as a class, deteriorated, underutilized or vacant.
(4) At least twenty percent of all real property within a
one-mile radius of the proposed West Virginia project launchpad for
economic development to be located within a municipal corporation
is, as a class, deteriorated, underutilized or vacant.
(5) At least twenty percent of all occupied housing within a
two-mile radius of the proposed West Virginia project launchpad for economic development to be located outside a municipal corporation
is, as a class, deteriorated, substandard or vacant.
(6) At least twenty percent of all occupied housing within a
one-mile radius of the proposed West Virginia project launchpad for
economic development to be located in a municipal corporation is,
as a class, deteriorated substandard or vacant.
(7) If the proposed West Virginia project launchpad for
economic development would be located in a municipal corporation,
the median family income of residents of the municipal corporation
shall be eighty percent or less of the median family income for the
nearest metropolitan statistical area.
(8) If the proposed West Virginia project launchpad for
economic development is to be located outside of a municipal
corporation, then the median family income of residents of the
county living outside a municipal corporation shall be eighty
percent or less of the statewide nonurban median family income.
(9) The population loss exceeds ten percent in an area that
includes the proposed West Virginia project launchpad for economic
development and its surrounding area but is not larger than the
county or counties in which the proposed West Virginia project
launchpad for economic development would be located, based on 2010
census data or census estimates since 2010 establishing a pattern
of population loss.
(10) The county or municipality in which the proposed West Virginia project launchpad for economic development would be
located has experienced a sudden and/or severe job loss.
(11) At least thirty-three percent of the real property in a
proposed West Virginia project launchpad for economic development
would but for establishment of the West Virginia project launchpad
for economic development remain underdeveloped or nonperforming for
at least the next five years after the year in which the
application is filed due to physical characteristics of the real
property.
(12) The area of the proposed West Virginia project launchpad
for economic development has substantial real property with
adequate infrastructure and energy to support new or expanded
development of the launchpad for economic development. For purposes
of this subdivision, "infrastructure" means transportation
infrastructure (road, water and rail, as appropriate), water and
sewer infrastructure, communications infrastructure including
telephone, cellular telephone and broadband infrastructure, and
electricity.
(b) Additional criteria. -- In addition to the criteria
required under subsection (a) of this section, the Governor shall
consider the following additional criteria:
(1) Evidence of distress, including, but not limited to,
unemployment, percentage of population below eighty percent of the
state median income, poverty rate, deteriorated property and adverse economic and socioeconomic conditions in the proposed West
Virginia project launchpad for economic development.
(2) The strength and viability of the proposed goals,
objectives and strategies in the opportunity plan as determined by
the Secretary of Commerce and Secretary of Revenue.
(3) Whether the opportunity plan is creative and innovative in
comparison to other applications, based on recommendations of the
Secretary of Commerce and the Secretary of Revenue.
(4) Local public and private commitment to the development of
the proposed West Virginia project launchpad for economic
development and the potential cooperation of surrounding
communities, based on recommendations of the Secretary of Commerce
and the Secretary of Revenue.
(5) Existing resources available to the proposed West Virginia
project launchpad for economic development, as determined by the
Secretary of Commerce and the Secretary of Revenue.
(6) How the proposed West Virginia project launchpad for
economic development would relate to other current economic and
community development projects and to regional initiatives or
programs for the area in which the project launchpad for economic
development would be located, as determined by the Secretary of
Commerce and the Secretary of Revenue, in their sole discretion,
and recommended to the Governor.
(7) How the local regulatory burden will be eased for businesses operating in the proposed West Virginia project
launchpad for economic development.
(8) Proposals to implement educational opportunities and
improvements in the proposed West Virginia project launchpad for
economic development.
(9) Crime statistics and proposals to implement local crime
reduction measures in the proposed West Virginia project launchpad
for economic development.
(10) Proposals to establish and link job creation and job
training in the proposed West Virginia project launchpad for
economic development.
(c) Tax reduction orders and ordinances. -- An area may not be
authorized as a West Virginia project launchpad for economic
development unless, as a part of the application, each county
commission, county council and governing body of a municipal
corporation in which the proposed project launchpad for economic
development is to be located adopts and provides a copy of its
ordinance, order or other required action from the governing body
of the qualified political subdivision that provides the tax
benefits or other benefits to qualified persons and qualified
businesses upon designation of the area as a West Virginia project
launchpad for economic development. All appropriate ordinances,
orders or other required action shall be effective on or before
July 1, 2014, and may be made contingent upon the West Virginia project launchpad for economic development being authorized by the
Governor as provided in this article. The ordinance, order or
other required action shall be binding and nonrevocable on the
qualified political subdivisions for the duration of the West
Virginia project launchpad for economic development.
§5B-2I-9. Failure to submit timely application.
Failure of a county commission, county council or municipal
corporation, to submit the application provided in sections five
and six of this article, on or before the date specified in section
seven of this article, shall preclude any portion of the
unincorporated area of the county, or the incorporated area of a
municipality, as the case may be, from being designated as a West
Virginia project launchpad for economic development by the
Governor, until section seven is amended by the Legislature
specifying a new date by which applications may be filed.
§5B-2I-10. Extension of authorized West Virginia project
launchpads.
(a) The Governor may approve an application to extend the
geographic boundaries of a previously authorized West Virginia
project launchpad for economic development to include an unoccupied
parcel or tract of land when the proposed extension is of land
contiguous to the existing project launchpad for economic
development and the extension does not result in the project
launchpad for economic development, after extension, exceeding the maximum number of contiguous acres specified in section four of
this article or the other limitations specified in that section.
(b) When the proposed extension is of a West Virginia project
launchpad for economic development located in an unincorporated
area of the county and land proposed to be included in the
launchpad is also located in the unincorporated area of that
county, then application for extension shall be submitted by the
president of the county commission or county council of the county
after adoption by the county commission or county council of a
resolution authorizing submission of the application for extension
of the West Virginia project launchpad for economic development to
the Secretary of Commerce.
(c) When the proposed extension is of a West Virginia project
launchpad for economic development located within the corporate
limits of a municipality and land proposed to be included in the
pad is also located within that municipality or is located outside
the municipal corporation or is located both within and without the
municipal corporation, the application for extension of the
existing launchpad must be submitted by the mayor of the municipal
corporation and the president of the county commission or county
council pursuant to adoption of a resolution by the governing body
of the municipal corporation and adoption of a resolution by the
county commission or county council authorizing its submission to
the Secretary of Commerce.
(d) When the proposed extension involves land located in two
municipalities, or in two counties, or in any combination thereof,
the application for extension must be signed by the mayor of each
municipal corporation pursuant to a resolution adopted by the
governing body of the municipal corporation and by the president of
the county commission or county council of each county in which the
land is located pursuant to a resolution adopted by the county
commission or county council authorizing submission of the
application for extension to the Secretary of Commerce.
(e) The application for extension of an existing West Virginia
project launchpad for economic development shall be in a form
prescribed by the Secretary of Commerce and shall include all of
the information required by section six of this article updated to
reflect any changes in the information provided in the original
application submitted under section six of this article due to
passage of time and any additional information required by the
Secretary of Commerce. The map of the previously authorized West
Virginia project launchpad for economic development shall be
updated to clearly identify the boundaries of contiguous acres
would be added to the existing West Virginia project launchpad for
economic development.
(f) The application for extension of an existing West Virginia
project launchpad for economic development shall be processed as
provided in section eight of this article.
(g) The Governor may authorize the expansion of an existing
West Virginia project launchpad for economic development, when the
application for extension is filed with the Secretary of Commerce
on or before December 31, 2025.
§5B-2I-11. Residency of individuals.
In order to qualify for a tax benefit under this article, an
individual shall be domiciled and reside in a West Virginia project
launchpad for economic development for a period of one hundred
eighty four days or more each taxable year, which period may begin
on the date of designation of the West Virginia project launchpad
for economic development by the Governor or on the date the person
first resides in a West Virginia project launchpad for economic
development.
§5B-2I-12. Qualified businesses.
(a) Qualification. - In order to qualify each year for a tax
benefit provided under this article, a business shall own or lease
real property in a West Virginia project launchpad for economic
development from which the business actively conducts a trade,
profession or other business activity utilizing a state-of-the-art
technology, as defined in section two of this article, as a primary
component of the business activity in the project launchpad for
economic development. The qualified business shall receive
certification from the Secretary of Commerce that the business is
a qualified business located and engaged in the active conduct of a trade, profession or other business activity utilizing as a
primary component or primary element of the business a
state-of-the-art technology within the West Virginia project
launchpad for economic development. The business shall obtain
annual renewal of the certification from the Secretary of Commerce
to continue to qualify under this section.
(b) Relocation. - Any business that relocates from outside a
West Virginia project launchpad for economic development may not
receive any tax benefit set forth in this article unless that
business utilizes within the project launchpad for economic
development a state-of-the-art technology as a primary element or
component of the business activity within the project launchpad for
economic development and does one of the following:
(1) Increases full-time employment by at least twenty percent
in the first full year of operation within the West Virginia
project launchpad for economic development;
(2) Makes a capital investment in the property located within
the West Virginia project launchpad for economic development at
least equivalent to ten percent of the gross revenues of that
business in the immediately preceding calendar or fiscal year of
the business; or
(3) Enters into a lease agreement for property located within
the West Virginia project launchpad for economic development:
(A) For a primary term at least ten years; and
(B) With aggregate payment under the lease agreement at least
equivalent to five percent of the gross revenues of that business
in the immediately preceding calendar or fiscal year of the
business. The Secretary of Commerce, in consultation with the
Secretary of Revenue, may waive or modify the requirements of this
subsection (b), as appropriate, and in their sole discretion.
§5B-2I-13. Decertification.
(a) Application. - The president of the county commission or
county council of the county in which the West Virginia project
launchpad for economic development is located or the mayor of the
municipal corporation when the project launchpad is located, in
whole or in part, within the corporate limits of the municipal
corporation, pursuant to resolution adopted by the county
commission or county council or the governing body of the municipal
corporation, may apply to the Secretary of Commerce to have the
Governor decertify and remove the designation of West Virginia
project launchpad for economic development from some or all of the
geographic area previously designated as a project launchpad for
economic development pursuant to this article. The application for
decertification shall contain all of the following:
(1) An identification of the property to be removed from the
existing West Virginia project launchpad for economic development.
(2) A copy of an agreement which was supported by
consideration in which each entity which possesses an interest in the real property to be removed, including any holder of an option
either to purchase the real estate or to enter into a ground lease
of the real estate or any other leasehold interest in the real
estate, waives the party's right to any exemptions, deductions,
abatements or credits granted by this article.
(3) A copy of a binding ordinance, resolution or other
governing document passed by the qualified political subdivision
removing any exemptions, deductions, abatements or credits granted
by this article effective upon decertification by the Secretary of
Commerce.
(b) Review process. - The Secretary of Commerce may after
consultation with the Secretary of Revenue request that the
Governor grant the application to decertify and remove the property
when the application for decertification is complete and has been
signed by the president of the county commission or county council
and the mayor of the municipal corporation, if any, in which the
West Virginia project launchpad for economic development is
located.
§5B-2I-14. Prohibition on use of illegal alien labor.
(a) General rule. - No person or business that receives a tax
benefit under this article may knowingly permit the labor services
of an illegal alien under a contract to which the person or
business is a party in the applicable West Virginia project
launchpad for economic development. A person or business shall be deemed to have knowingly employed or knowingly permitted the labor
services of an illegal alien if the business or person has active
knowledge of or has reason to know that the labor services of an
illegal alien have been provided under the contract in the
applicable West Virginia project launchpad for economic
development.
(b) Reimbursement. - As a condition of the receipt of a tax
benefit under this article, the department or political subdivision
that awards the tax benefit under this article shall require full
repayment of the value or amount of the tax exemption, deduction,
abatement or credit if subsection (c) applies.
(c) Violations.
(1) Repayment under subsection (b) is required if any of the
following apply:
(A) The person or business that received the tax exemption,
deduction, abatement or credit under this article is sentenced
under Federal law for an offense involving knowing use of labor by
an illegal alien under the contract in the applicable West Virginia
project launchpad for economic development.
(B) All of the following apply:
(i) A contractor to a person or business that received the tax
exemption, deduction, abatement or credit under this article is
sentenced under Federal law for an offense involving knowing use of
labor by an illegal alien on the contract.
(ii) The person or business knew or had reason to know of the
contractor's use of labor by an illegal alien on the contract.
(2) Any person or business that is required to repay the State
Tax Commissioner or a qualified political subdivision under this
section shall be ineligible to apply for any tax exemption,
deduction, abatement or credit under this article for a period of
two years.
(3) It is an affirmative defense to a violation of this
section, if the person or business contracts with a contractor to
provide labor under the contract in the applicable West Virginia
project launchpad for economic development and establishes that the
person has required the contractor to certify compliance with the
requirements of section 274A of the Immigration Reform and Control
Act of 1986 (Public Law 99-603, 8 U.S.C. § 1324A) with respect to
the hiring, recruiting or referral for employment of an alien in
the United States and has notified the appropriate Federal
authority, if the person knew that the contractor used labor by an
illegal alien.
(d) Definition. - As used in this section, "illegal alien"
means a noncitizen of the United States who is violating Federal
immigration laws and is providing compensated labor within this
state.
§5B-2I-15. State taxes.
A person who is a resident of a West Virginia project launchpad for economic development, as defined in section eleven of
this article, a qualified business, as defined in section twelve of
this article, or a nonresident under section seventeen of this
article shall receive the tax benefits as provided in this article
for the duration of the West Virginia project launchpad for
economic development, or after expansion of the project launchpad
for economic development, or the person ceases to be a resident, a
qualified business or a nonresident deriving income from activity
in a West Virginia project launchpad for economic development,
whichever occurs first. Tax benefits shall expire on the date of
expiration of the West Virginia project launchpad for economic
development, whether the expiration is by operation of law or by
decertification.
§5B-2I-16. State sales and use taxes.
(a) Exemption. - Sales of tangible personal property except
motor vehicles and motor fuel, and sales of custom software and
services to a qualified business or a construction contractor
pursuant to a construction contract with a qualified business,
landowner or lessee for the exclusive use, consumption and
utilization of the tangible personal property or service by the
qualified business, landowner or lessee at the qualified
business's, landowner's or lessee's facility located within a West
Virginia project launchpad for economic development shall be exempt
from the taxes imposed by articles fifteen and fifteen-a of chapter eleven of this code. No person may be allowed an exemption for
purchases made prior to designation of the real property as part of
a West Virginia project launchpad for economic development.
(b) Expiration of exemption. - The exemption allowed by this
section shall remain in effect for the duration of the West
Virginia project launchpad for economic development or the person
ceases to be a resident, a qualified business or a nonresident
deriving income from activity in a West Virginia project launchpad
for development, whichever occurs first. Unless the exemption as to
any person sooner expires, this exemption shall expire on the date
of expiration of the West Virginia project launchpad for economic
development, whether the expiration is by operation of law or by
decertification.
§5B-2I-17. Personal income tax.
(a) General rule. - An individual shall be allowed a
decreasing modification to his or her federal adjusted gross income
for the taxable year for the following items, to the extent they
are included in his or her federal adjusted gross income:
(1) Compensation received during the time period when the
individual was a resident of a West Virginia project launchpad for
economic development.
(2) The West Virginia source income of a partner in a
partnership, or a shareholder in a small business corporation, that
is a qualified business located in a West Virginia project launchpad for economic development that is attributable to business
activity of the partnership, or electing small business
corporation, conducted within a West Virginia project launchpad for
economic development, except that when a partnership or other pass
through entity operates in West Virginia but does business both
within and outside the West Virginia project launchpad for economic
development, West Virginia source income of the partnership or
other pass through entity shall be apportioned to the project
launchpad for economic development by the ratio the gross receipts
from business activity done in the project launchpad for economic
development bears to total West Virginia gross receipts for the
taxable year from all business activity in West Virginia.
(3) All of the following:
(A) Net gains or income, less net losses, derived by a
resident or nonresident of a West Virginia project launchpad for
economic development from the sale, exchange or other disposition
of real or tangible personal property located in a West Virginia
project launchpad for economic development as determined in
accordance with generally accepted accounting principles and
practices. The exemption provided in this paragraph (A) shall not
apply to the sale, exchange or other disposition of any stock of
goods, merchandise or inventory, or any operational assets unless
the transfer is in connection with the sale, exchange or other
disposition of all of the assets in complete liquidation of a qualified business located in a West Virginia project launchpad for
economic development. This paragraph (A) shall also apply to
intangible personal property employed in a trade, profession or
business that is a qualified business in a West Virginia project
launchpad for economic development, but only when transferred in
connection with a sale, exchange or other disposition of all of the
assets in complete liquidation of the qualified business located in
the West Virginia project launchpad for economic development.
(B) Net gains, less net losses, realized by a resident of a
West Virginia project launchpad for economic development from the
sale, exchange or disposition of intangible personal property or
obligations issued on or after July 1, 2013, by this state, a
public authority, commission, board or other agency, political
subdivision or authority created by a political subdivision or by
the Federal Government when the interest is exempt from state
taxation under 31 U.S.C. § 3124, as determined in accordance with
accepted accounting principles and practices and the laws of the
United States.
(C) The exemption from income for gain or loss provided in
subparagraphs (i) and (ii) of this paragraph (C) shall be prorated
based on the following:
(i) In the case of gains, less net losses, in this
subparagraph (i), the percentage of time, based on calendar days,
the property located in a West Virginia project launchpad for economic development was held by a resident or nonresident of the
West Virginia project launchpad for economic development during the
time period the West Virginia project launchpad for economic
development was in effect in relation to the total time the
property was held.
(ii) In the case of gains, less net losses, in this
subparagraph (ii), the percentage of time, based on calendar days,
the property was held by the person or business while a resident of
a West Virginia project launchpad for economic development in
relation to the total time the property was held by the person or
business.
(4) Net gains or income derived from or in the form of rents
received by a person, whether a resident or nonresident of a West
Virginia project launchpad for economic development, to the extent
that income or loss from the rental of real or tangible personal
property is allocable to a West Virginia project launchpad for
economic development. For purposes of calculating this exemption:
(A) Net rents derived from real or tangible personal property
located in a West Virginia project launchpad for economic
development are allocable to a West Virginia project launchpad for
economic development.
(B) If the tangible personal property was used both within and
without the West Virginia project launchpad for economic
development during the taxable year, only the net income attributable to use in the West Virginia project launchpad for
economic development is exempt. The net rental income shall be
multiplied by a fraction, the numerator of which is the number of
days the property was used in the West Virginia project launchpad
for economic development and the denominator which is the total
days of use.
(5) Dividends received during the time the person was a
resident of a West Virginia project launchpad for economic
development.
(6) Interest received during the time period the person was a
resident of a West Virginia project launchpad for economic
development.
(7) The part of the income or gains received by an estate or
trust for its taxable year ending within or with the
resident-beneficiary's taxable year which, under the governing
instrument and applicable state law, is required to be distributed
currently or is in fact paid or credited to the
resident-beneficiary and which would have been exempt under this
article if received by a resident-beneficiary directly.
(A) Exemptions.
(i) Beginning January 1, 2014, a person located in a
designated West Virginia project launchpad for economic development
shall be allowed a deduction under subsection (a) of this section
from federal adjusted gross income, to the extent included therein for purposes of the tax imposed by article twenty-one, chapter
eleven of this code for the classes of income set forth in
subsection (a) of this section. No person shall be allowed a
deduction for activities conducted prior to designation of the real
property as part of a West Virginia project launchpad for economic
development.
(ii) Pass through entities. - The deductions provided in
subdivisions (2), (3) and (4) of this subsection (a) shall apply to
all of the following:
(iii) The income or gain of a partnership or association. The
partner or member shall be entitled to the exemptions under this
section for the partner's or member's share, whether or not
distributed, of the income or gain received by the partnership or
association for its taxable year.
(iv) The income or gain of electing small business
corporation. The shareholder shall be entitled to the exemptions
under this section for the shareholder's pro rata share, whether or
not distributed, of the income or gain received by the corporation
for its taxable year ending within or with the shareholder's
taxable year.
(b) Limitations. -
(1) A partnership, association, electing small business
corporation, resident or nonresident individual may not apply an
exemption from income under this article for any class of income against any other classes of income or gain.
(2) A partnership, association, electing small business
corporation, resident or nonresident individual may not carry back
or carry forward any deduction or exemption under this article from
year to year.
(3) Any credit allowed under this section may not exceed the
tax liability of the taxpayer under article twenty-one, chapter
eleven of this code for the taxable year.
(c) Section not applicable to certain entities. - Any portion
of net income or gain that is attributable to operation of a
railroad, truck, bus or airline company, pipeline or natural gas
company, water transportation company or other public service
business subject to the jurisdiction of the West Virginia Public
Service Commission may not be used to compute a deduction or
exemption from tax under this section.
§5B-2I-18. Residency considerations.
If a person completes the residency requirements under section
eleven of this article or if a nonresident realizes income
attributable to business activity or property within an authorized
West Virginia project launchpad for economic development, on or
before the end of the taxable year, the person may claim the
deductions from federal adjusted gross income, to the extent
included therein, for the items set forth in section seventeen of
this article for that portion of the tax year that the person was a resident for that portion of the tax year during which the area
is designated as an authorized West Virginia project launchpad for
economic development.
§5B-2I-19. Corporate net income tax.
(a) Credits. - For the tax years that begin on or after
January 1, 2014, a corporation that is a qualified business under
this article may claim a credit against the tax imposed by article
twenty-four, chapter eleven of this code, for tax liability
attributable to business activity conducted within the authorized
West Virginia project launchpad for economic development in the
taxable year.
(b) Limitation. - No credit may be claimed for activities
conducted prior to designation of the real property as part of an
authorized West Virginia project launchpad for economic
development. The business activity must be conducted directly by a
corporation in the authorized West Virginia project launchpad for
economic development in order for the corporation to claim the tax
credit allowed by this section.
(c) Tax liability determinations. - The corporate tax
liability attributable to business activity conducted within an
authorized West Virginia project launchpad for economic development
shall be determined by multiplying the corporation's West Virginia
taxable income that is attributable to business activity conducted
within the authorized West Virginia project launchpad for economic development by the rate of tax imposed under article twenty-four,
chapter eleven of this code for the taxable year.
(d) Determinations of attributable tax liability. - Tax
liability attributable to business activity conducted within an
authorized West Virginia project launchpad for economic development
shall be computed, construed, administered and enforced in
conformity with article twenty-four, chapter eleven of this code
and with specific reference to the following:
(1) If the entire business of the corporation in this state is
transacted wholly within the authorized West Virginia project
launchpad for economic development, the taxable income attributable
to business activity within the project launchpad for economic
development shall consist of the West Virginia taxable income of
the business as determined under article twenty-four, chapter
eleven of this code.
(2) If the entire business of the corporation in this state is
not transacted wholly within the authorized West Virginia project
launchpad for economic development, the West Virginia taxable
income of the corporation attributable to business activity in the
West Virginia project launchpad for economic development shall be
determined by apportioning the West Virginia taxable income as
provided in subsection (d) of this section.
(e) Income apportionment. - The West Virginia taxable income
of a corporation that is a qualified business doing business both within and outside of a West Virginia project launchpad for
economic development shall be apportioned to the authorized West
Virginia project launchpad for economic development by multiplying
the corporation's West Virginia taxable income by a fraction, the
numerator of which is the property factor plus the payroll factor
and the denominator of which is two, in accordance with the
following:
(1) Property factor. - The property factor is a fraction, the
numerator of which is the average value of the taxpayer's real and
tangible personal property owned or rented and used in the
authorized West Virginia project launchpad for economic development
during the tax period and the denominator of which is the average
value of all the taxpayer's real and tangible personal property
owned or rented and used in this state during the tax period but
shall not include the security interest of any corporation as
seller or lessor in personal property sold or leased under a
conditional sale, bailment lease, chattel mortgage or other
contract providing for the retention of a lien or title as security
for the sales price of the property.
(2) Payroll factor. - The payroll factor is a fraction, the
numerator of which is the total amount paid to employees based in
the authorized West Virginia project launchpad for economic
development during the taxable year by the taxpayer for
compensation and the denominator of which is the total compensation taxpayer paid to employees in this state during the taxable year.
Compensation is paid in the authorized West Virginia project
launchpad for economic development if:
(A) The person's service is performed entirely within the
authorized West Virginia project launchpad for economic
development;
(B) The person's service is performed both within and without
the authorized West Virginia project launchpad for economic
development, but the service performed without the project
launchpad is incidental to the person's service within the project
launchpad for economic development; or
(C) Some of the service is performed in the West Virginia
project launchpad for economic development and the base of
operations or, if there is no base of operations, the place from
which the service is directed or controlled is in the project
launchpad for economic development, or the base of operations or
the place from which the service is directed or controlled is not
in any location in which some part of the service is performed, but
the person's residence is in the project launchpad for economic
development.
(f) Computation. - A corporation shall compute its West
Virginia taxable income in conformity with article twenty-four,
chapter eleven of this code, with no adjustments or subtractions
for authorized West Virginia project launchpad for economic development taxable income.
(g) Limitation on amount of credit. - The credit allowed under
this section may not exceed the tax liability of the taxpayer under
article twenty-four, chapter eleven of this code for the tax year,
determined after application of any net operating losses and
application of tax credits allowed for the year under chapter
eleven of this code.
(h) Section not applicable to certain businesses. - Any
portion of the taxpayer's taxable income that is attributable to
the operation of a railroad, truck, bus or airline company,
pipeline or natural gas company, water transportation company, or
other public service business regulated by the West Virginia Public
Service Commission must be excluded when determining the tax credit
allowed by this section. Additionally, the property factor may not
include in the numerator or denominator any property of the public
service business actively and the payroll factor may not include in
either the numerator or the denominator compensation paid for the
taxable year to employees employed in the public service business
activity.
§5B-2I-20. Business franchise tax.
(a) Exemption. - A business that has its official headquarters
located in an authorized West Virginia project launchpad for
economic development is exempt from the tax imposed by article
twenty-three, chapter eleven of this code attributable to business activity engaged in within the authorized West Virginia project
launchpad for economic development for taxable years beginning on
or after January 1, 2014, notwithstanding any provision of the code
to the contrary.
(b) Credits. - For tax years that begin on or after January 1,
2014, a corporation, partnership or other pass through entity that
is a qualified business as defined in section twelve of this
article may claim a credit against the tax imposed by article
twenty-three, chapter eleven of this code, for tax liability
attributable to the taxable capital employed within the West
Virginia project launchpad for economic development in the taxable
year. No credit may be claimed for capital employed prior to
designation of the real property as part of a West Virginia project
launchpad for economic development. The business activity in the
West Virginia project launchpad for economic development must be
conducted directly by a corporation, partnership or other pass
through entity in order for the corporation, partnership or other
pass through entity to claim the tax credit allowed by this
section.
(c) Tax liability. - When the corporation, partnership or
other pass through entity does business both within and outside the
West Virginia project launchpad for economic development, the
entity's tax liability attributable to capital employed within a
project launchpad for economic development shall be determined by multiplying the portion of entity's taxable capital attributable to
business activity within the project launchpad for economic
development, determined as provided in subsection (d) of this
section, by the rate of tax imposed under article twenty-three,
chapter eleven of this code for the taxable year. The corporation,
partnership or other pass through entity shall compute its West
Virginia taxable capital in conformity with article twenty-three,
chapter eleven of this code with no adjustments or subtractions for
the capital employed in the West Virginia project launchpad for
economic development.
(d) Determination of attributable tax liability. - The
determination of the taxable capital of a corporation, partnership
or other pass through entity attributable to the capital employed
within a West Virginia project launchpad for economic development
shall be determined with specific reference to the following:
(1) If the entire business of the corporation in this state is
transacted wholly within the project launchpad, the taxable capital
attributable to the business activity within the West Virginia
project launchpad for economic development shall consist of the
entire West Virginia taxable capital as determined under article
twenty-three, chapter eleven of this code.
(2) If the entire business of the corporation in this state is
not wholly transacted within an authorized West Virginia project
launchpad for economic development, the taxable capital of a corporation or pass through entity doing business in an authorized
West Virginia project launchpad for economic development shall be
determined upon such portion of the West Virginia taxable capital
not attributable to the capital employed within the authorized West
Virginia project launchpad for economic development by employing
the apportionment factors set forth in section nineteen of this
article.
(e) Limitation on amount of credit. - The credit allowed under
this section may not exceed the tax liability of the taxpayer under
article twenty-three, chapter eleven of this code, for the tax
year.
(f) Credit not available.-- Any portion of the taxpayer's
taxable capital that is attributable to the capital employed in the
operation of a railroad, truck, bus or airline company, pipeline or
natural gas company, water transportation company, or other public
service business subject to regulation by the West Virginia Public
Service Commission shall not be used to calculate a credit under
this section.
§5B-2I-21. West Virginia project Launchpad jobs tax credit.
(a) Credits.-- For tax years that begin on or after January 1,
2014, a qualified business under this article may apply to the
State Tax Commissioner for a jobs tax credit against the taxes
imposed by articles twenty-three and twenty-four of chapter eleven
of this code, or for the taxes imposed by articles twenty-one and twenty-three of chapter eleven of this code, when the qualified
business is a pass through entity for federal income tax purposes,
for all new full-time jobs with health benefits located within an
authorized West Virginia project launchpad for economic
development. The job must be held directly with a qualified
business and be based in the authorized West Virginia project
launchpad for economic development in order for the qualified
business to apply for the tax credit. The Tax Commissioner shall
prescribe the form of the application and the process to obtain the
credit. The Tax Commissioner may promulgate in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
rules the commissioner deems necessary to implement, administer and
enforce this section.
(b) Application when business relocates within state.
(1) A business that relocates from a location in this state
that is not located in an authorized West Virginia project
launchpad for economic development to a location in an authorized
West Virginia project launchpad for economic development may not
apply for a credit for an existing job that is transferred,
discontinued or lost in this state which is attributable to the
relocation.
(2) A qualified business that has relocated pursuant to
subdivision (1) of this subsection may apply for a West Virginia
project launchpad job tax credit, for a new full-time job with health benefits that is created and based in the authorized West
Virginia project launchpad for economic development. A new
full-time job is created with a qualified business if the average
monthly employment for that qualified business has increased from
the average monthly employment of the business in this state during
the prior twelve-month calendar year and the new job is based in an
authorized West Virginia project launchpad for economic
development.
(c) Application of credit. - A qualified business apply for a
credit allowed by this section by January 15 of the then current
calendar year for credit for the previous calendar year.
(d) Apportionment. - The State Tax Commissioner shall
apportion a West Virginia project launchpad jobs tax credit, for a
qualified business that has not operated in an authorized West
Virginia project launchpad for economic development for a full
fiscal year by the percentage that the number of days the qualified
business operated in the project launchpad for economic development
bears to three hundred sixty five days.
(e) Credit determinations. - The West Virginia project
launchpad jobs tax credit shall be determined by multiplying the
monthly average of all full-time jobs by the allowance. The
allowance for purposes of the West Virginia project launchpad jobs
tax credit, for taxable years shall be $1,250 per new job with
health benefits created by the qualified business when the new job is based in the West Virginia launchpad for economic development.
(f) Notification of credit. - By March 15 of each year, the
Tax Commissioner shall notify each qualifying business that applies
for credit under this section of the amount of credit approved for
that qualified business.
(g) Limitation on amount of credit. - The tax credit allowed
under this section shall be applied by the qualified business after
all other credits allowable for the year under this code have been
applied but may not reduce the liability of the business for taxes
under articles twenty-three and twenty-four of chapter eleven of
this code, by more than fifty percent of the tax liability of the
qualified business under articles twenty-three and twenty-four of
chapter eleven of this code attributable to the business activity
of the qualified business engaged in within the West Virginia
project launchpad for economic development.
(h) Allocation. - The total amount of credits approved by the
Tax Commissioner may not exceed $1 million annually. If the credits
applied for exceed the $1 million cap in a given year, the credits
shall be allocated on a pro rata basis.
(i) Computation of allocation. - If the total amount of West
Virginia project launchpad jobs tax credits applied for by all
qualified businesses under this section exceeds $1 million then the
credit to be received by each qualified business shall be the
product of $1 million multiplied by the quotient of the credit applied for by the qualified business divided by the total of all
credits applied for by all qualified businesses. The algebraic
equivalent for this computation is: Qualified business's West
Virginia project launchpad jobs tax credit = $1 million X (the
amount of West Virginia project launchpad tax credit applied for by
the qualified business divided by the sum of all West Virginia
project launchpad jobs tax credits applied for by all qualified
businesses for the taxable year.
(j) Pass-through entities. - The tax credits provided in this
section shall apply to the following:
(1) A partner or member of a partnership, limited partnership,
limited liability company or association that qualifies under this
section shall be entitled to a job creation tax credit in
proportion to the partner's or member's share, whether or not
distributed, of the income or gain received by the partnership,
limited partnership, limited liability company or association for
its taxable year.
(2) A shareholder of a small business corporation that
qualifies under this section shall be entitled to a job creation
tax credit in proportion to the shareholder's pro rata share,
whether or not distributed, of the income or gain received by the
corporation for its taxable year ending within or with the
shareholder's taxable year.
(3) No partnership, limited partnership, limited liability company, association or small business corporation, or partner,
member or shareholder, may claim any other tax benefit, expense or
credit for the same West Virginia project launchpad jobs tax
credit.
(k) Unused credit forfeited. - Unused project launchpad jobs
tax credit allowed under this section may not carry back or forward
to any other year and may not be transferred to any other person or
business.
§5B-2I-22. Local taxes.
Every qualified political subdivision in which an authorized
West Virginia project launchpad for economic development is
located, in whole or in part, shall exempt, deduct, abate or credit
local taxes in accordance with ordinances and orders adopted
pursuant to section four of this article, as is applicable. Failure
to exempt, deduct, abate or credit local taxes shall result in the
revocation of the authorization to be a West Virginia project
launchpad for economic development.
§5B-2I-23. Ad valorem property tax.
General rule. - Notwithstanding any provision of this code to
the contrary property located in an authorized West Virginia
project launchpad for economic development owned by a qualified
business shall be eligible for the special valuation methodology
for ad valorem property tax purposes provided in article six-l,
chapter eleven of this code as of July 1 beginning on or after the date the geographic area is designated a West Virginia project
launchpad for economic development or beginning on or after the
date the West Virginia project launchpad for economic development
is extend to include the geographic area in which the qualified
business is located.
§5B-2I-24. Local business and occupation taxes, earned income and
net profits taxes.
(a) General exemption. - A municipal corporation or county
commission or county council that has enacted any tax on the
privilege of engaging in any business activity, profession or
occupation, measured by gross receipts, earned income or net
profits, may impose that tax on persons or qualified businesses
located within the boundaries of an authorized West Virginia
project launchpad for economic development. The municipal
corporation or county commission or county council shall exempt
from the imposition or operation of the local tax ordinances,
statutes, regulations or otherwise:
(1) The business gross receipts for operations conducted by a
qualified business within an authorized West Virginia project
launchpad for economic development.
(2) The earned income received by a resident of an authorized
West Virginia project launchpad for economic development.
(3) The net profits of a qualified business attributable to
business activity conducted within an authorized West Virginia project launchpad for economic development when imposed by the
qualified political subdivision where that qualified business is
located.
No exemption may be granted for operations conducted, for
earned income received or for activities conducted prior to
designation of the real property as part of an authorized West
Virginia project launchpad for economic development.
(b) Determination of exemption. - For the purposes of
determining an exemption under this section, a tax on or measured
by any of the following shall be attributed to business activity
conducted within an authorized West Virginia project launchpad for
economic development by applying the apportionment factors under
section nineteen of this article:
(1) Business gross receipts.
(2) Gross or net income.
(3) Gross or net profits.
§5B-2I-25. Local business license tax.
(a) Municipalities. - No person or qualified business with a
physical location in an authorized West Virginia project launchpad
for economic development may be required to pay any license tax or
fee to that municipal corporation for business activity done in a
West Virginia project launchpad for economic development. For
purposes of this section "business license tax" means a license tax
or fee that a municipal corporation imposes pursuant to article thirteen, chapter eight of this code.
(b) Counties. - No person or qualified business with a
physical location in the portion of a county located in an
authorized West Virginia project launchpad for economic development
may be required to pay any license tax or fee to the county
corporation for business activity done in a launchpad for economic
development located in the county. For purposes of this section
"business license tax" means a license tax or fee that a county or
county council may impose pursuant to chapter seven of this code.
§5B-2I-26. Local sales and use taxes.
A municipal corporation or county commission or county council
shall exempt from its sales and use taxes purchases, including
leases, of tangible personal property, custom software or services
for use or consumption within a West Virginia project launchpad for
economic development by a qualified business with a physical
location in the West Virginia project launchpad for economic
development.
§5B-2I-27. No transferability of tax benefits.
Any tax benefit provided under this article to any person or
qualified business is nontransferable and may not be applied, used
or assigned to any other person or business, except as expressly
provided in this article in the case of pass through entities
treated as a partnership for federal income tax purposes for the
taxable year.
§5B-2I-28. Recapture.
(a) General rule. - If any qualified business located within
an authorized West Virginia project launchpad for economic
development has received any tax benefit or other economic benefit
under this article and subsequently relocates outside of the
project launchpad for economic development or ceases to do business
within the first five years of locating in or expanding in an
authorized West Virginia project launchpad for economic
development, that business shall refund to the State Tax
Commissioner and to the qualified political subdivisions which
granted the tax or other benefit received in accordance with the
following:
(1) If a qualified business relocates, or ceases doing
business, within three years from the date of first locating in a
West Virginia project launchpad for economic development, sixty-
six percent of all of the tax and other benefits attributed to that
qualified business's participation in the West Virginia project
launchpad for economic development shall be refunded to the State
Tax Commissioner and to the qualified political subdivisions that
provided the benefits.
(2) If a qualified business relocates, or ceases doing
business, within three to five years from the date of first
locating in a West Virginia project launchpad for economic
development, thirty-three percent of all tax and other benefits attributed to that qualified business's activity in the West
Virginia project launchpad for economic development shall be
refunded to the State Tax Commissioner and to the qualified
political subdivisions that provided the benefits.
(b) Waiver.-- The Secretary of Commerce, in consultation with
the State Tax Commissioner and the applicable qualified political
subdivisions, may waive or modify the recapture requirements under
this section if the Secretary of Commerce determines that the
business relocation was due to circumstances beyond the control of
the business, including, but not limited to:
(1) natural disaster;
(2) unforeseen industry trends; or
(3) loss of a major supplier or market.
§5B-2I-29. Delinquent or deficient state or local taxes.
(a) Persons. - No person may claim or receive any tax benefit
under this article unless that person is in full compliance with
all West Virginia state and local tax laws, ordinances and
resolutions that are applicable to the person.
(b) Qualified businesses. -
(1) No qualified business may claim or receive any tax benefit
under this article unless that qualified business is in full
compliance with all West Virginia state and local tax laws,
ordinances and resolutions applicable to that business.
(2) No qualified business may claim or receive a tax benefit under this article if any person or business with a twenty percent
or greater interest in that qualified business is not in full
compliance with all West Virginia state and local tax laws,
ordinances and resolutions applicable to that person or business.
(c) Later compliance and eligibility. -
(1) Any person or qualified business that is not eligible to
claim any tax benefit under this article due to noncompliance with
any West Virginia state or local tax law, ordinance or resolution
may become eligible if that person or qualified business
subsequently comes into full compliance with all West Virginia
state and local tax laws, ordinances and orders applicable to the
person or business to the satisfaction of the Tax Commissioner or
the tax collector of the political subdivision within the calendar
year in which the noncompliance first occurred.
(2) If full compliance is not attained by February 5 of the
calendar year following the calendar year during which
noncompliance first occurred or is first discovered, whichever
occurs last, then that person or qualified business is precluded
from claiming any tax benefit under this article for that preceding
calendar year, whether or not full compliance is achieved
subsequently.
(d) For purposes of this section, a person or qualified
business is not out of compliance during the time the question of
compliance is being litigated in an administrative or judicial proceeding, or the person or qualified business is in compliance
with the terms of any authorized plan for payment of past due
taxes.
§5B-2I-30. Code compliance.
(a) General rule. - A person or qualified business is
precluded from claiming any tax benefit provided in this article if
that person or qualified business owns real property in an
authorized West Virginia project launchpad for economic development
and the real property is not in compliance with all applicable
state and local zoning, building and housing laws and ordinances or
orders of the county commission or county council.
(b) Opportunity to achieve compliance. -
(1) The person or qualified business who is not in compliance
under subsection (a) of this section has until December 31 of the
calendar year following designation of the real property as part of
an authorized West Virginia project launchpad for economic
development to be in compliance in order to claim any tax benefit
under this article for that year or the prior calendar year. If
full compliance is not attained by December 31 of that following
calendar year, the person or qualified business is precluded from
claiming any tax benefit under this article for the year on
noncompliance or for the following calendar year, whether or not
compliance is achieved in a subsequent calendar year. A municipal
corporation or county commission or county council of a county in which the West Virginia project launchpad for economic development
is located may extend the time period in which a person or
qualified business must come into compliance with a local ordinance
or order, for a period not to exceed one year if the county or
county council or municipal corporation determines that the person
or qualified business has made and shall continue to make a good
faith effort to come into compliance and that an extension will
enable the person or qualified business to achieve full compliance.
(2) Municipal corporations and county commissions or county
councils are required to notify the Tax Commissioner in writing,
within thirty days following the end of each calendar year, of all
persons or qualified businesses not in compliance with this
subsection.
§5B-2I-31. Reporting to Governor and Legislature.
The Secretary of Commerce and the Tax Commissioner shall
report to the Governor, the President of the Senate, and the
Speaker of the House of Delegates on the economic effects of this
article in each authorized West Virginia project launchpad economic
development on or before the first day of the regular session of
the Legislature in 2018, 2022, 2026 and 2030. This report may be a
joint report of the Secretary of Commerce and the Tax Commissioner,
or the reports required by this section may be separate reports
prepared and filed in compliance with this section.
§5B-2I-32. Other tax credits.
A person or qualified business that is entitled to claim a tax
benefit in accordance with the provisions of this article is not
entitled to claim or accumulate any of the following tax benefits
due to activity within a West Virginia project launchpad for
economic development: The tax credits allowed by article
thirteen-c, thirteen-d, thirteen-e, thirteen-j, thirteen-k,
thirteen-l, thirteen-m, thirteen-n, thirteen-o, thirteen-p,
thirteen-q, thirteen-r, thirteen-s, thirteen-t, thirteen-u,
thirteen-v, thirteen-w, thirteen-x, thirteen-z, thirteen-aa or
thirteen-bb of chapter eleven of this code or the credit allowed by
this article.
§5B-2I-33. Illegal activity.
Any funds or other forms of consideration received by a person
or business conducting any type of illegal activity are not
eligible for any of the tax benefits or any other benefit otherwise
allowable under this article.
§5B-2I-34. Rules.
(a) The Tax Commissioner may propose rules for legislative
approval pursuant to article three, chapter twenty-nine-a of this
code, that the commissioner deems to be necessary to effectuate the
provisions of this article administered by the Tax Commissioner.
(b) The Secretary of Commerce may propose rules for
legislative approval pursuant to article three, chapter
twenty-nine-a of this code, that the secretary deems to be necessary to effectuate the provisions of this article administered
by the Secretary of Commerce.
§5B-2I-35. Compliance.
Any person or qualified business eligible for any tax benefit
under this article shall comply with all reporting, filing and
compliance requirements any tax imposed by or administered under
chapter eleven of this code, on the person or qualified business
and for any tax imposed by a county commission or county council
pursuant to chapter seven of this code, or a municipal corporation
pursuant to article thirteen, chapter eight of this code, unless
otherwise provided in this article.
§5B-2I-36. Penalties.
(a) Civil money penalties.--
(1) In addition to any additions to tax or other penalty
authorized by article ten, chapter eleven of this code, for
violations of that article, the Tax Commissioner may impose an
additional administrative penalty not to exceed $10,000 for any
article or violation of this article relating to state and local
taxes, including the filing of any false statement, return or
document.
(2) The Tax Commissioner may impose a civil penalty not to
exceed $10,000 for a violation of this article, including the
filing of any false statement, return or document.
(3) In addition to any additions to tax or other penalty set forth in an ordinance of a municipal corporation imposing a tax for
violations of that tax, the municipal corporation by its authorized
officer may impose an additional administrative penalty not to
exceed $10,000 for any article or violation of this article
relating to local taxes collected by the municipal corporation,
including the filing of any false statement, return or document.
(4) The civil money penalties imposed by this section may be
collected in the same manner as additions to tax or tax penalties
are collected by the State Tax Commissioner or the municipal
corporation.
(b) Criminal penalty. - In addition to any criminal penalty
under article nine, chapter eleven of this code, any person or
business who knowingly violates any of the provisions of this
article is guilty of a misdemeanor and, upon conviction, shall be
fined not more than $1,000 for each offense or imprisoned for not
more than one year in a correctional facility, or both fined and
imprisoned, in the discretion of the court.
§5B-2I-37. Construction of article.
This article is declared to be socioeconomic legislation that
shall be interpreted to ensure that all provisions relating to
state and local tax benefits and other benefits are liberally
construed in favor of the taxpayer and strictly construed against
the government.
§5B-2I-38. Applicability of article.
The provisions of this article shall be applied prospectively.
No person or business may claim any tax benefit or other benefit
under this article until that person or business becomes qualified
as provided in this article.
§5B-2I-39. Severability.
The provisions of this article are severable. If any provision
of this article or its application to any person or circumstance is
held invalid by a court of competent jurisdiction, the invalidity
shall not affect other provisions or applications of this article
which can be given effect without the invalid provision or
application.
§5B-2I-40. Conflicts.
Should any provision of this code be inconsistent with this
article, the provisions of this article shall be deemed to control.
§5B-2I-41. Expiration.
This article and all benefits associated with this article
shall terminate for tax years beginning after December 31, 2030,
unless this date is extended by the Legislature.
CHAPTER 11. TAXATION.
ARTICLE 6L. SPECIAL METHOD FOR APPRAISING PROPERTY IN WEST
VIRGINIA PROJECT LAUNCHPADS for ECONOMIC
DEVELOPMENT.
§11-6L-1. Short title.
This article shall be known and cited as the "West Virginia
Project Launchpad for Economic Development Property Valuation Act".
§11-6L-2. Definitions.
For the purposes of this article:
(1) "Salvage value" means five percent of original cost;
(2) "State-of-the-art technologies" means "state-of-the-art
technologies" as defined in section two, article two-l, chapter
five-b of this code when the owner of the property is a "qualified
business" as defined in section two, article two-l of chapter
five-b of this code. Qualifications for that tax credit and the
special valuation methodology provided in this article include, but
are not limited to, a minimum capital investment requirement, a
minimum new jobs creation requirement and a requirement that the
new jobs created be good paying jobs with health insurance
benefits, all as defined in article two-l of chapter five-b of this
code; and
(3) "Tax Commissioner" or "Commissioner" means the chief
executive officer of the Tax Division of the Department of Revenue
provided in article one, chapter eleven of this code, or his or her
designee.
§11-6L-3. Valuation of property in West Virginia project launchpad
for economic development.
Notwithstanding any other provision of this code to the
contrary, the value of tangible personal property and improvements to real property placed in service or use on or after July 1, 2013,
and directly used in a state-of-the-art technology as defined in
section two of this article shall, for the purpose of ad valorem
property taxation under this chapter and under Article X of the
Constitution of this state, is its salvage value.
§11-6L-4. Initial determination by county assessor.
(a) On or before September 1 of the assessment year, the owner
of tangible personal property and improvements to real property
placed in service or use on or after July 1, 2013, directly used in
a new business, or in a new segment of an existing business, that
utilizes a state-of-the-art business technology and qualifies for
the tax benefits allowed by article two-i, chapter five-b of this
code may file a report with the county assessor of the county in
which the property was located on July 1 of that assessment year,
listing the tangible personal property and improvements to real
property placed in service or use on or after July 1, 2013, that is
qualified investment for purposes of the tax benefits allowed by
article two-i of said chapter five-b. A taxpayer that fails to
timely file the report required by this subsection shall be deemed
to have waived valuation of the property as provided in this
article for that assessment year.
(b) When the county assessor receives the report described in
subsection (a) of this section, the assessor shall review the
report and make such inquiries as he or she deems necessary to determine whether the tangible personal property and improvements
to real property placed in service or use on or after July 1, 2013,
listed in the report is eligible for valuation under this article.
The county assessor shall notify the taxpayer in writing of his or
her determination not later than January 15 of the assessment year.
(c) Upon making a determination that a taxpayer owns tangible
personal property and improvements to real property placed in
service or use on or after July 1, 2013, directly used in an
innovative business technology that is eligible for valuation under
this article, the county assessor shall notify the Tax Commissioner
of that determination and shall provide information to the Tax
Commissioner as he or she requires relating to that determination.
§11-6L-5. Protest and appeal.
(a) If the taxpayer disagrees with the county assessor's
determination under section four of this article or if the assessor
fails to notify the taxpayer of the assessor's determination on or
before the day specified in that section the taxpayer may file
objections in writing with the county assessor. The county assessor
shall decide the matter by either sustaining the protest and making
proper corrections, or by stating, in writing if requested, the
reasons for the county assessor's refusal. The county assessor may,
and if the taxpayer requests, the county assessor shall, before
February 1 of the assessment year, certify the question to the Tax
Commissioner in a statement sworn to by both parties, or if the parties are unable to agree, in separate sworn statements. The
sworn statement or statements shall contain a full description of
the property and any other information which the Tax Commissioner
may require.
(b) The Tax Commissioner shall, as soon as possible on receipt
of the question, but in no case later than February 28 of the
assessment year, instruct the county assessor as to how the
property shall be treated. The instructions issued and forwarded by
mail to the county assessor are binding upon the county assessor,
but either the county assessor or the taxpayer may apply to the
circuit court of the county for review of the question of the
applicability of this article to the property in the same fashion
as is provided for appeals from the county commission or county
council in section twenty-five, article three of this chapter. The
Tax Commissioner shall prescribe forms on which the questions under
this section shall be certified and the Tax Commissioner has the
authority to pursue any inquiry and procure any information
necessary for disposition of the matter.
§11-6L-6. Report on economic benefit.
The Secretary of Commerce shall provide to the Joint Committee
on Government and Finance by March 1, 2018, and again by March 1,
2021, a report detailing the economic benefit of the valuation
method specified in this article. The report shall include the
number of new jobs created due to the provisions of this article and the ad valorem property tax impact.
§11-6L-7. Effective date.
This article shall be effective on and after July 1, 2013, for
property placed in service or use on or after July 1, 2013, when
the property and its use meet the requirements of this article.
ARTICLE 21A. PROMOTING WEST VIRGINIA EMPLOYMENT ACT.
§11-21A-1. Short title.
This article shall be known and may be cited as the "Promoting
West Virginia Employment Act".
§11-21A-2. Scope of article.
This article relates to fostering economic development,
creating new jobs and opportunities for citizens of West Virginia
and providing incentives for businesses to locate or expand
business facilities, other operations and jobs in this state.
§11-21A-3. Definitions.
(a) The following words and phrases when used in this article
have the meanings given to them in this section unless the context
in which used clearly indicates that a different meaning was
intended by the Legislature.
(b) Terms defined.
(1) "Agreement" means an agreement entered into under section
four of this article.
(2) "Development Office" means the Development Office of the
Department of Commerce established in chapter five-e of this code.
(3) "Health insurance benefits" means employer-provided
coverage for medical expenses of the employee or the employee and
his or her family under a group accident or health plan, or
employer contributions to an Archer medical savings account, as
defined in Section 220 of the Internal Revenue Code of 1986, as
amended, or to a health savings account, as defined in Section 223
of the Internal Revenue Code, of the employee when the employer's
contribution to any such account is not less than fifty percent of
the maximum amount permitted for the year as employer-provided
coverage under Section 220 or 223 of the Internal Revenue Code,
whichever section is applicable.
(4) "Qualified company" means a for-profit corporation,
partnership or other entity that agrees to create at least five new
jobs in this state within twenty-four months from the date the
agreement is entered into under section eight of this article,
makes available to its full-time employees health insurance
coverage, and pays at least fifty percent of the premium for the
health insurance and meets the requirements of section four of this
article: Provided, That "qualified company" does not include any
corporation, partnership or other entity which meets any of the
following:
(A) Is identified by any of the following North American
Industry Classification System code groups, sectors or subsectors:
(i) Industry group 7132 or 8131.
(ii) Sectors 44, 45, 61, 92 or 221, including water and sewer
services.
(iii) Subsector 722.
(B) Is delinquent in the payment of any taxes or any other
amounts to the Federal Government, this state or any political
subdivision of this state.
(C) Has filed for or has publicly announced its intention to
file for bankruptcy protection.
(5) "Student loan payment assistance" means the payment of
principal or interest on:
(A) Any indebtedness incurred by the employee solely to pay
qualified higher education expenses (as defined in section 221 of
the Internal Revenue Code), which:
(i) Are paid or incurred within a reasonable period of time
before or after the indebtedness was incurred, and
(ii) Are attributable to education furnished during a period
during which the employee was an eligible student, or
(B) Any indebtedness used to refinance indebtedness described
in paragraph (A). However, "student loan payment assistance" does
not include any payment of principal or interest on indebtedness
owed to a person who is related (within the meaning of subsection
(b), section 267 of the Internal Revenue Code or subsection (b),
section 707 of the Internal Revenue Code), to the employee or to
any person by reason of a loan under any qualified employer plan, as defined in paragraph (4), subsection (p), section 72 of the
Internal Revenue Code, or under any contract referred to in
paragraph (5), subsection (p), section 72 of the Internal Revenue
Code.
(6) "Withholding tax" means the tax employers are required to
withhold from their employees under section 71, article 21 of this
chapter.
§11-21A-4. Qualification.
In order to qualify for benefits under this article, a
qualified company must be located in this state and meet the
requirements under subsection (a), section five of this article.
§11-21A-5. Benefits.
(a) Requirement. - A qualified company that enters into an
agreement must create five new jobs in this state within two years
of entering into the agreement under section eight of this article.
(b) Retention. - A qualified company that meets the
requirements of subsection (a) is eligible to retain seventy-five
percent of the qualified company's withholding taxes for
individuals employed in the new jobs for one of the following
periods:
(1) Seven years, if the individuals are compensated at a rate
equal to at least one hundred percent of the amount specified in
section six of this article.
(2) Eight years, if the individuals are compensated at a rate equal to at least one hundred and ten percent of the amount
specified in section six of this article.
(3) Nine years, if the individuals are compensated at a rate
equal to at least one hundred and twenty percent of the amount
specified in section six of this article.
(4) Ten years, if the individuals are compensated at a rate
equal to at least one hundred and forty percent of the amount
specified in section six of this article.
(c) When the qualified company certifies that it has a student
loan payment assistance program for its West Virginia employees,
then the words "ninety-five percent" shall be substituted for
"seventy-five percent" in subsection (b) of this section.
(d) Information statement. - A qualified company shall comply
with section seventy-two, article twenty-one of this chapter,
without regard to the benefits the company receives under this
article.
(e) Notice. - The qualified company shall provide to each
individual employed in a new job notice of the benefits the
qualified company is receiving under this article at the time the
individual is hired. The information must be easily understandable
and must state that the employee's withholding tax is being
retained by the qualified company under this article.
§11-21A-6. Compensation of employees filling new jobs.
(a) The benefit allowed by this article shall be available for each new job in this state of the qualified company that:
(1) Pays at least $34,100 annually. Beginning January 1, 2014,
and on January 1 of each year thereafter, the Tax Commissioner
shall prescribe an amount that shall apply in lieu of the $34,100
amount for new jobs filled during that calendar year. This amount
is prescribed by increasing the $34,100 figure by the
cost-of-living adjustment for that calendar year. If any increase
under this subdivision is not a multiple of $50, the increase shall
be rounded to the next lowest multiple of $50;
(2) Provides health insurance. The employer may in addition
offer benefits including child care, retirement, student loan
repayment assistance and other benefits; and
(3) Is a full-time, permanent position, as those terms are
defined in this section.
(b) Jobs that pay less than $34,100 annually, or less than the
amount prescribed by the Tax Commissioner pursuant to subdivision
(1), subsection (a) of this section, whichever is higher, or that
pay that salary but do not also provide health benefits in addition
to the salary do not qualify for benefits under this article. Jobs
that are less than full-time, permanent positions do not qualify
for the benefits under this article.
(c) The employer having obtained entitlement to the benefit
under this article for the year in which the new job is filled is
not required to raise wages of the employees currently employed in the new jobs upon which the initial benefit was based by reason of
the cost-of-living adjustment for new jobs filled in subsequent
years provided the employer continues to provide healthcare
benefits and, if applicable, student loan payment assistance.
(b) For purposes of this section, the following definitions
apply:
(1) "Compensation" means wages, salaries, commissions and any
other form of remuneration paid to employees for personal services.
(2) "Cost-of-living adjustment" for any calendar year is the
percentage (if any) by which the consumer price index for the
preceding calendar year exceeds the consumer price index for the
calendar year 2013.
(3) "Consumer price index" for any calendar year means the
average of the federal consumer price index as of the close of the
twelve-month period ending on August 31 of that calendar year.
(4) "Federal consumer price index" means the most recent
consumer price index as of August 31 each year for all urban
consumers published by the United States Department of Labor.
(5) "New employee" means a person residing and domiciled in
this state, hired by the taxpayer to fill a position or a job in
this state which previously did not exist in the taxpayer's
business enterprise in this state prior to the date the application
was filed under section eight of this article. In no event may the
number of new employees exceed the total net increase in the employer's employment in this state: Provided, That the Tax
Commissioner may require that the net increase in the taxpayer's
employment in this state be determined and certified for the
taxpayer's controlled group as defined in article twenty-four of
this chapter. In addition, a person is a "new employee" only if the
person's duties are on a regular, full-time and permanent basis:
(A) "Full-time employment" means employment for at least one
hundred forty hours per month at a wage not less than the amount
specified in subdivision (1), subsection (a) of this section; and
(B) "Permanent employment" does not include employment that is
temporary or seasonal and therefore the wages, salaries and other
compensation paid to the temporary or seasonal employees will not
be considered for purposes of this article even if the compensation
paid to the temporary or seasonal employee equal or exceeds the
amount specified in subdivision (1), subsection (a) of this
section; or
(6) "New job" means a job which did not exist in the business
of the taxpayer in this state prior to filing the application for
benefits under this article, and which is filled by a new employee.
§11-21A-7. Application and review.
(a) Application. - A qualified company that meets the
requirements of section four of this article may apply to the
Development Office for benefits under this article. The application
shall be on a form required by the Development Office and shall include all of the following:
(1) The name and address of the applicant.
(2) Documentation that the applicant is a qualified company.
(3) Documentation that the applicant meets the requirements of
section four of this article.
(4) Documentation that the applicant does not owe any
delinquent taxes or any other amounts to the Federal Government,
this state or any political subdivision of this state.
(5) An affidavit that the applicant has not filed for or
publicly announced its intention to file for bankruptcy protection
and that the company will not seek bankruptcy protection within the
next six calendar months following the date of the application.
(6) A waiver of confidentiality under section five-d, article
ten of this chapter for information provided in the application.
(7) Any other information required by the Development Office.
(b) Review. - Within 30 days of receipt of the application,
the Development Office, in conjunction with the Tax Division of the
Department of Revenue, shall review the application and determine
if the applicant is a qualified company and that the requirements
of section four of this article have been met.
(c) Approval. - The Development Office may approve or deny the
application. Upon approval of an application, the Development
Office shall notify the applicant in writing and enter into an
agreement with the qualified company for benefits under this article.
§11-21A-8. Agreement.
(a) The agreement between the qualified company and the
Development Office shall be entered into before any benefits may be
provided under this article.
(b) The agreement shall do all of the following:
(1) Specify the terms and conditions the qualified company
must comply with in order to receive benefits under this article.
(2) Require the Development Office to certify all of the
following to the Tax Division of the Department of Revenue every
taxable year:
(A) That the qualified company is eligible to receive benefits
under this article.
(B) The number of new jobs created by the company during each
taxable year.
(C) The amount of gross wages being paid to each individual
employed in a new job.
(3) Include any other information deemed necessary by the
Development Office.
§11-21A-9. Recapture of withholding taxes.
(a) Compliance with terms and conditions. - If the qualified
company fails to comply with the terms and conditions set forth in
the agreement or fails to comply with this article, the Development
Office shall immediately terminate the agreement. The qualified company is not entitled to any further benefits provided under this
article and shall be required to remit to the Tax Commissioner an
amount equal to the aggregate withholding taxes retained by the
qualified company under this article as of the date the agreement
is terminated.
(b) Relocation. - If a qualified company relocates outside of
this state within the five-year period immediately following the
last year the company received benefits under this article, the
following apply:
(1) If a qualified company relocates within three years from
the last year the company received benefits under this article, an
amount equal to sixty-six percent of the aggregate withholding
taxes retained by the qualified company under this article shall be
paid over to the Tax Commissioner.
(2) If a qualified company relocates within three to five
years from the last year the company received benefits under this
article, an amount equal to thirty-three percent of the aggregate
withholding taxes retained by the qualified company under this
article shall be paid over to the Tax Commissioner.
(c) Waiver. - The Development Office may waive or modify
recapture requirements under subsection (b) if the Development
Office determines that the qualified company's relocation was due
to circumstances beyond the control of the company, including, but
not limited to:
(1) Natural disaster; or
(2) Loss of a major supplier or market.
§11-21A-10. Quarterly filing.
(a) Filing. - Within thirty days from the end of each calendar
quarter for the duration of the agreement, a qualified company
shall file quarterly with the Tax Division of the Department of
Revenue on a form prescribed by the Tax Commissioner.
(b) Contents. - The form under subsection (a) shall request
the following information:
(1) The name and Employer Identification Number of the
qualified company.
(2) The effective date of the agreement.
(3) The reporting period end date.
(4) Information relating to each individual employed in a new
job as required by the Tax Commissioner.
(5) Information on amounts retained or remitted.
(6) Any other information required by the Tax Commissioner.
(c) Confidentiality.- The contents of the completed form shall
be subject to the confidentiality rules set forth in section
five-d, article ten of this chapter.
§11-21A-11. Prohibitions.
A qualified company claiming benefits under this article may
not participate in any program in which any portion of the
qualified company's withholding taxes attributable to new jobs have been pledged to finance indebtedness or transferred to or for the
benefit of the qualified company.
§11-21A-12. Employee withholding statement.
An individual employed in a new job whose withholding tax is
subject to this act shall be credited one hundred percent of the
withholding tax withheld from the individual's paycheck as if the
qualified company remitted one hundred percent of the withholding
tax to the Tax Commissioner.
§11-21A-13. Administration and regulation.
The Development Office of the Department of Commerce, in
conjunction with the Tax Commissioner, shall adopt guidelines
necessary to implement and administer this article.
§11-21A-14. Review.
(a) Duty. - The Development Office shall conduct an annual
review of the activities undertaken by a qualified company to
ensure that the qualified company is in compliance with this
article, the agreements and any regulations or guidelines adopted
under this article.
(b) Inspection. - The books and records concerning employment
and wages of any employees for which the qualified company has
retained any withholding taxes shall be available for inspection by
the Development Office or the Tax Commissioner, or by both
agencies, during regular business hours. The Development Office may
request the Tax Commissioner to audit the qualified company for compliance with this article.
§11-21A-15. Report to Governor and Legislature.
(a) Duty. - The Development Office shall submit an annual
report to the Governor, the President of the Senate and the Speaker
of the House of Delegates indicating the effectiveness of the tax
benefits provided by this article no later than January 15
following the year in which the benefits were approved under this
article. The report shall include the following information:
(1) The name of each qualified company participating as of the
date of the report.
(2) The types of qualified companies utilizing this article.
(3) The location of the qualified company and any of its
business operations in this state.
(4) The number of new jobs created.
(5) The wages paid to individuals employed in the new jobs.
(6) The annual amount of benefits provided under this article.
(7) The estimated net fiscal impact to the state, including
the direct and indirect new state tax revenue to be derived from
the new jobs created.
(8) An estimate of the multiplier effect of the benefits
received under this act.
(b) Confidentiality.- Notwithstanding any provision of this
code providing for the confidentiality of tax records or records of
the Development Office, the information contained in the report is public information.
§11-21A-16. Annual limitation on benefits.
The aggregate annual amount of benefits retained under this
article may not exceed $5 million per fiscal year of the state.
§11-21A-17. Applicability.
No agreement under this article may be entered into after
December 31, 2019.
§11-21A-18. Effective dates.
This article shall take effect July 1, 2013 and be of no
further effect after December 31, 2019, except as to benefits
awarded before December 31, 2019.
NOTE: The purpose of this bill is to encourage economic
development and job creation by creating the West Virginia Project
Launch Pad Act; to provide criteria for establishment of West
Virginia project launchpads in certain areas by the Governor; allow
county commissions and county councils to apply for launchpad
designations; provide the process for application and approval of
launchpads; and to provide economic benefits for businesses
locating or expanding in launchpads including state and local tax
relief and other economic benefits. The bill prohibits businesses
in a launchpad from employing illegal aliens, engaging in illegal
activity, and being delinquent in payment of state and local taxes;
permits the transfer of economic benefits to successor businesses;
and requires businesses to comply with applicable zoning laws and
state and local building and other codes. The bill also provides
for the recapture of taxes and other economic benfits under
specified circumstances; requires the promulgation of rules and
regulations; imposes civil and criminal penalties for
noncompliance; and requires periodic reports to the Governor and
the Legislature. Additionally, the bill provides a special method
for appraising property in a launchpad for economic development,
including providing a new method of valuation of launchpad
property; providing for an initial determination of value by the
assessor and for protest and appeals; and requiring periodic reports to Governor and Legislature. Finally, the bill creates the
"Promoting West Virginia Employment Act" and provides qualification
for certain economic benefits provided under the act upon
application and review; it also specifies an annual cap on
benefits; provides for recapture of benefits; provides for
administration and enforcement of the article including the
issuance of regulations; and requires periodic reports to Governor
and Legislature.
§5B-2I-1, §5B-2I-2, §5B-2I-3, §5B-2I-4,,§5B-2I-5, §5B-2I-6,
§5B-2I-7, §5B-2I-8, §5B-2I-9, §5B-2I-10, §5B-2I-11, §5B-2I-12,
§5B-2I-13, §5B-2I-14, §5B-2I-15, §5B-2I-16, §5B-2I-17, §5B-2I-18,
§5B-2I-19, §5B-2I-20, §5B-2I-21, §5B-2I-22, §5B-21-23, §5B-2I-24,
§5B-2I-25, §5B-2I-26, §5B-2I-27, §5B-2I-28, §5B-2I-29, §5B-2I-30,
§5B-2I-31, §5B-2I-32, §5B-2I-33, §5B-2I-34, §5B-2I-35, §5B-2I-36,
§5B-2I-37, §5B-2I-38, §5B-2I-39, §5B-2I-40, §5B-2I-41, §11-6L-1,
§11-6L-2, §11-6L-3, §11-6L-4, §11-6L-5, §11-6L-6, §11-6L-7
,
§11-21A-1, §11-21A-2, §11-21A-3, §11-21A-4, §11-21A-5, §11-21A-6,
§11-21A-7, §11-21A-8, §11-21A-9, §11-21A-10, §11-21A-11,
§11-21A-12, §11-21A-13, §11-21A-14, §11-21A-15, §11-21A-16,
§11-21A-17 and §11-21A-18
are new; therefore, strike-throughs and
underscoring have been omitted.