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2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-11b. Fund Creation; Authorization for Expenditure

Amounts deducted and retained by the Tax Commissioner under subsection (e), section eleven-a of this article shall be deposited by the Tax Commissioner in the special revolving fund which is hereby created and established in the state Treasury and designated as the "special district excise tax administration fund." Amounts deposited in the special district excise tax administration fund may be expended by the Tax Commissioner for the general administration of the taxes administered under the authority of this article.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-13b. Surrender of Property Subject to Levy

(a) Requirement. -- Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Tax Commissioner, surrender such property or rights (or discharge such obligation) to the Tax Commissioner, except such part of the property or rights as is, at the time of such demand, subject to any prior attachment, execution or levy.
(b) Enforcement of levy.
(1) Extent of personal liability.
Any person in possession of or obligated with respect to property subject to levy upon which levy has been made, who fails or refuses to surrender any property or rights to property, subject to levy, upon demand by the Tax Commissioner, shall be personally liable to the state in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of taxes for the collection of which such levy has been made, together with costs and interest on such sum at an annual rate established under section seventeen-a of this article, from the date of the levy. Any amount (other than costs) received under this paragraph shall be credited against the liability for the collection of which such levy was made.
(2) Penalty for violation. -- In addition to the personal liability imposed by paragraph (1), if any person required to surrender property or rights to property fails or refuses to surrender the same without reasonable cause, such person shall be liable for a money penalty equal to fifty percent of the amount recovered under paragraph (1). No part of this penalty shall be credited against the tax liability for the collection of which such levy was made.
(c) Effect of honoring levy. -- Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which levy has been made, who upon demand by the Tax Commissioner, surrenders such property or rights to property (or discharges such obligation) to the Tax Commissioner, or who pays a liability under subsection (b)(1) shall be discharged from any obligation or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment.
(d) "Person" defined. -- The term "person" as used in subsection (a) includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee or member is under a duty to surrender the property or rights to property or to discharge the obligation.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-13d. Sale of Perishable Goods

If the Tax Commissioner determines that any property seized is liable to perish or become greatly reduced in price or value by keeping, or that such property cannot be kept without great expense, he shall appraise the value of such property and:
(a) Return to owner. -- If the owner of the property can be readily found, the Tax Commissioner shall give him notice of such determination of the appraised value of the property. The property shall be returned to the owner if, within such time as may be specified in the notice, the owner either:
(1) Pays to the Tax Commissioner an amount equal to the appraised value; or
(2) Gives bond in such form, with such sureties, and in such amount as the Tax Commissioner shall prescribe, to pay the appraised amount at such time as the Tax Commissioner determines to be appropriate under the circumstances.
(b) Immediate sale. -- If the owner does not pay such amount or furnish such bond in accordance with this subsection, the Tax Commissioner shall, as soon as practicable, make public sale of the property in accordance with such regulations as may be prescribed by the Tax Commissioner.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-13e. Redemption of Property

(a) Before sale. -- Any person whose property has been levied upon shall have the right to pay the amount due, together with the expenses of the proceeding, if any, to the Tax Commissioner at any time prior to the sale thereof, and upon such payment, the Tax Commissioner shall restore such property to him and all further proceedings in connection with the levy on such property shall cease from the time of such payment.
(b) Redemption of real estate after sale.
(1) Period. -- The owners of any real property sold as provided in section thirteen-c, their heirs, executors or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the property sold, or any particular tract of such property, at any time within one hundred eighty days after the sale thereof.
(2) Price. -- Such property or tract of property shall be permitted to be redeemed upon payment to the purchaser, or in case he cannot be found in the county in which the property to be redeemed is situated, then to the Tax Commissioner, for the use of the purchaser, his heirs or assigns, the amount paid by such purchaser and interest thereon at the rate specified in section seventeen-a, from the date the purchaser paid the purchase price to the date the property is redeemed.
(c) Record. -- When any lands sold are redeemed as provided in this section, the Tax Commissioner shall cause entry of the fact to be made upon the record mentioned in section thirteen-h and such entry shall be evidence of such redemption.
(d) Subrogation to state lien. -- Any person redeeming the interest of another shall be subrogated to the lien of the state on such interest. Such person shall lose his right to this lien, however, unless within thirty days after receiving the certificate of sale of personal property or the Tax Commissioner's deed of real property, he shall file with the clerk of the county in which the real property is located or of the county in which the personal property is located or where the delinquent taxpayer resides or has his business location, or if neither be in this state, the clerk of Kanawha County, his claim against the delinquent taxpayer and a copy of the certificate of sale of personal property or deed to real property.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-13g. Legal Effect of Certificate of Sale of Personal Property and Deed of Real Property

(A) Certificate of sale of property other than real property. -- In all cases of sale pursuant to section thirteen-c of property (other than real property), the certificate of such sale:
(1) As evidence. -- Shall be prima facie evidence of the right of the officer to make such sale, and conclusive evidence of the regularity of his proceedings in making the sale; and
(2) As conveyances. -- Shall transfer to the purchaser all right, title and interest of the party delinquent in and to the property sold; and
(3) As authority for transfer of corporate stock. -- If such property consists of stocks, shall be notice, when received, to any corporation, company or association of such transfer, and shall be authority to such corporation, company or association to record the transfer on its books and records in the same manner as if the stocks were transferred or assigned by the party holding the same, in lieu of any original or prior certificate, which shall be void, whether canceled or not; and
(4) As receipts. -- If the subject of sale is securities or other evidences of debt, shall be a good and valid receipt to the person holding the same, as against any person holding or claiming to hold possession of such securities or other evidences of debt; and
(5) As authority for transfer of title to motor vehicle. -- If such property consists of a motor vehicle, shall be notice, when title to received, to any public official charged with the registration of title to motor vehicles, of such transfer and shall be authority to such official to record the transfer on his books and records in the same manner as if the certificate of title to such motor vehicle has been transferred or assigned by the party holding the same, in lieu of any original or prior certificate, which shall be void, whether canceled or not.
(b) Deed of real property. -- In the case of the sale of real property, pursuant to section thirteen-c;
(1) Deed as evidence. -- The deed of sale given pursuant to section thirteen-c shall be prima facie evidence of the facts therein stated; and
(2) Deed as conveyance of title. -- If the proceedings of the Tax Commissioner as set forth have been substantially in accordance with the provisions of law, such deed shall be considered and operate as a conveyance of all the rights, title and interest the party delinquent had in and to the real property thus sold at the time the lien of the State of West Virginia attached thereto.
(c) Effect of junior encumbrances. -- A certificate of sale of personal property given or a deed to real property executed pursuant to section thirteen-f shall discharge such property from all liens, encumbrances and titles over which the lien of the State of West Virginia with respect to which the levy was made had priority.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-13h. Records of Sale

(a) Requirement. -- The Tax Commissioner shall, for each county, keep a record of all sales of real property under section thirteen-c and of redemptions of such property. The record shall set forth the tax for which any such sale was made, the dates of seizure and sale, the name of the party assessed and all proceedings in making such sale, the amount of expenses, the names of the purchasers and the date of the deed.
(b) Copy as evidence. -- A copy of such record, or any part thereof, certified by the Tax Commissioner shall be evidence in any court of this state of the truth of the facts therein stated.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-13j. Application of Proceeds of Levy

(a) Collection of liability. -- Any money realized from a levy shall be applied as follows:
(1) Expense of levy and sale. -- First, against the expenses of the proceedings;
(2) Liability of delinquent taxpayer. -- The amount, if any, remaining after applying paragraph (1) shall then be applied against the liability in respect of which the levy was made or the sale conducted. The amount, if any, remaining shall then be applied against any other delinquent tax liability of the taxpayer for which levy may be made under section thirteen.
(b) Surplus proceeds. -- Any surplus proceeds remaining after the application of subsection (a) shall, upon application and satisfactory proof in support thereof, be credited or refunded by the Tax Commissioner to the person or persons legally entitled thereto.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-13k. Authority to Release Levy and Return Property

(a) Release of levy. -- It shall be lawful for the Tax Commissioner, under regulations prescribed by him to release the levy upon all or part of the property or rights to property levied upon where the Tax Commissioner determines that such action will facilitate the collection of the liability, but such release shall not operate to prevent a subsequent levy.
(b) Return of property. -- If the Tax Commissioner determines that property has been wrongfully levied upon, it shall be lawful for the Tax Commissioner to return:
(1) The specific property levied upon;
(2) An amount of money equal to the amount of money levied upon; or
(3) An amount of money equal to the amount of money received by the State of West Virginia from a sale of such property. Property may be returned at any time. An amount equal to the amount of money levied upon or received from such sale may be returned at any time before the expiration of nine months from the date of such levy. For purposes of paragraph (3), if property is declared purchased by the State of West Virginia at a sale pursuant to section thirteen-c (relating to manner and conditions to sale), the State of West Virginia shall be treated as having received an amount of money equal to the minimum price determined pursuant to such section or (if larger) the amount received by the State of West Virginia from the resale of such property.
(c) The Tax Commissioner shall, upon request, make public the names and persons in whose favor a release of levy or return of property has been made in subsections (a) and (b).
(d) Interest. -- Interest shall be allowed and paid at an annual rate established under section seventeen-a:
(1) In a case described in subsection (b)(2), from the date the Tax Commissioner receives the money to a date (to be determined by the Tax Commissioner) preceding the date of return by not more than thirty days; or
(2) In a case described in subsection (b)(3), from the date of the sale of the property to a date (to be determined by the Tax Commissioner) preceding the date of return by not more than thirty days.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-14a. Tax Refund Check-Off Programs

(a) Except as otherwise provided in this section, or in another section of this code enacted after June 30, 1991, all voluntary tax refund check-off programs expire and do not apply to any personal income tax returns required to be filed after June 30, 1991:
Provided,
That if any such program has an earlier expiration date specifically provided by law, the earlier expiration date applies.
(b) The Tax Commissioner shall cause each West Virginia personal income tax return form to contain a provision by which a taxpayer, and his or her spouse if a joint return, may donate a portion or all of his or her tax refund to the West Virginia Department of Veterans Assistance for purposes of providing nursing home and health care for aged and disabled veterans in the West Virginia Veterans Home. The total amount of donations received under this subsection shall be deposited in the State Treasury to the credit of the Department of Veterans Assistance to be used exclusively for purposes of providing nursing home and health care for aged and disabled veterans in the West Virginia Veterans Home.
(c) The Tax Commissioner shall cause each West Virginia personal income tax return form to contain a provision by which a taxpayer, and his or her spouse if a joint return, may donate a portion or all of his or her tax refund to the Donel C. Kinnard Memorial State Veterans Cemetery for purposes of operating and maintaining the cemetery. The total amount of donations received under this subsection shall be deposited in the State Treasury to the credit of the Department of Military Affairs and Public Safety to be used exclusively for purposes of operating and maintaining the Donel C. Kinnard Memorial State Veterans Cemetery.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-14c. Prompt Payment of Refunds of Personal Income Taxes

(a) General rule. -- The net amount of a lawful, mathematically correct, uncontested claim for refund of any tax imposed by article twenty-one of this chapter shall be refunded to the taxpayer within ninety days after such a claim for refund is filed with the Tax Commissioner. If the fund is not made to a taxpayer within the ninety days, the Tax Commissioner shall pay interest, at the rate specified in section seventeen-a of this article, for the period commencing with the date the claim for refund was received by the Tax Commissioner until the date the state warrant for the refund amount is issued, notwithstanding any provisions of section seventeen of this article to the contrary.
(b) Definitions. -- For purposes of this section:
(1) A claim for refund is "filed with the Tax Commissioner" on the date it is physically received by the state Tax Division.
(2) A "lawful, mathematically correct, uncontested claim for refund" is one that is timely filed; is signed by the appropriate taxpayer or taxpayers; is mathematically correct; is supported by any necessary documentation; and appears on its face to be correct.
(c) The payment of a claim for refund under this section shall not bar the Tax Commissioner from later issuing an assessment to recover any amount erroneously refunded, plus statutory interest and any applicable additions to tax, within two years after the date the refund was made: Provided, That if the refund or any part thereof was obtained by fraud, the assessment may be made at any time.
(d) This section shall apply only to claims for refund of personal income taxes filed after January 1, 1997.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-14d. Prompt Payment of Refunds of Corporation Net Income Taxes

(a) General rule. -- The net amount of a lawful, mathematically correct, uncontested claim for refund of any tax imposed by article twenty-four of this chapter shall be refunded to the taxpayer within six months after a claim for refund is filed with the Tax Commissioner. If the refund is not made to a taxpayer within this period, the Tax Commissioner shall pay interest, at the rate specified in section seventeen-a of this article, for the period commencing with the date the claim for refund was received by the Tax Commissioner until the date the state warrant for the refund amount is issued, notwithstanding any provisions of section seventeen of this article to the contrary.
(b) Definitions. -- For purposes of this section:
(1) A claim for refund is "filed with the Tax Commissioner" on the date it is physically received by the state Tax Division.
(2) A "lawful, mathematically correct, uncontested claim for refund" is one that is timely filed; is signed by the appropriate taxpayer or taxpayers; is mathematically correct; is supported by any necessary documentation; and appears on its face to be correct.
(c) The payment of a claim for refund under this section shall not bar the Tax Commissioner from later issuing an assessment to recover any amount erroneously refunded, plus statutory interest and any applicable additions to tax, within two years after the date the refund was made: Provided, That if the refund or any part thereof was obtained by fraud, the assessment may be made at any time.
(d) This section shall apply only to claims for refund of corporation net income taxes filed after January 1, 1997.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-16. Limitations on Collection

(a) Where assessment is issued. — Every proceeding instituted by the Tax Commissioner for the collection of the amount found to be due under an assessment which has become final of any tax, additions to tax, penalties or interest imposed by this article or any of the other articles of this chapter to which this article is applicable, irrespective of whether the proceeding is instituted in a court or by utilization of other methods provided by law for the collection of such tax, additions to tax, penalty or interest, shall be brought or commenced within 10 years after the date on which such assessment has become final.
(b) Where assessment is not issued. — Every proceeding instituted by the Tax Commissioner for the collection of the amount determined to be due by methods provided by law other than the issuance of an assessment, of any tax, additions to tax, penalties, or interest imposed by this article or any of the other articles of this chapter to which this article is applicable, irrespective of whether the proceeding is instituted in a court or by utilization of other methods provided by law for the collection of such tax, additions to tax, penalties or interest, shall be brought or commenced within 10 years after the date on which the taxpayer filed the annual return required to be filed by any of the articles of this code to which §11-10-1 et seq. of this code is applicable and, if no annual return is required, such 10-year period shall begin on the day after the latest periodical return required to be filed in any year is filed.
(c) Extension of time for institutions of collection proceedings by agreement. — The Tax Commissioner and the taxpayer may enter into written agreement to extend the period within which the Tax Commissioner may institute proceedings for the collection of the amount found to be due under an assessment which has become final, or the amount determined to be due by methods provided by law other than the issuance of the assessment, of any tax, additions to tax, penalties or interest imposed by this article or any of the other articles of this code to which this article is applicable. This period may not exceed two years. The period so agreed upon may be extended for additional periods not in excess of two years each by subsequent agreements in writing made before the expiration of the period previously agreed upon.
An extension of a tax lien, including an extension agreed to in writing by the taxpayer and the Tax Commissioner, beyond 10 years is not effective under the provisions of this section unless the extension is docketed by the Tax Commissioner in the office of the county commission as is required under §38-10C-1 et seq. of this code for docketing tax liens.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-18c. Failure to File Partnership Return or Report

(a) General rule. — In addition to the additions to tax imposed by §11-10-18 of this code (relating to failure to file return, supply information, or pay tax), if any partnership required to file a return under §11-21A-3 of this code, or a partnership adjustment report under §11-21A-3 of this code for any taxable year:
(1) Fails to file such return or report at the time prescribed therefor (determined with regard to any extension of time for filing); or
(2) Files a return or report which fails to show the information required under §11-21A-3 of this code, the partnership shall be liable for a penalty determined under §11-10-18c(b) of this code for each month (or fraction thereof) during which such failure continues (but not to exceed 12 months), unless it is shown that such failure is due to reasonable cause.
(b) Amount per month. — For purposes of §11-10-18c(a) of this code, the amount determined under §11-10-18c(b) of this code for any month is the product of:
(1) $195, multiplied by
(2) The number of persons who were partners in the partnership during any part of the taxable year.
(c) Assessment of penalty. — The penalty imposed by §11-10-18c(a) of this code shall be assessed against the partnership.
(d) Deficiency procedures not to apply. — The deficiency procedures set forth in §11-10A-1 et seq. of this code may not apply in respect of the assessment or collection of any penalty imposed by §11-10-18c(a) of this code.
(e) Adjustment for inflation. —
(1) In general. — In the case of any return required to be filed in a calendar year beginning after 2017, the $195 amount under 11-10-18c(b)(1) of this section shall be increased by such dollar amount multiplied by the cost-of-living adjustment determined under IRC §1(f)(3) determined by substituting "calendar year 2017" for "calendar year 2016" in subparagraph (A)(ii) thereof.
(2) Rounding. — If any amount adjusted under §11-10-18c(e)(1) of this code is not a multiple of $5, such amount shall be rounded to the next lowest multiple of $5.
(f) Effective date. — This section enacted in 2019 shall apply to taxable years beginning on and after January 1, 2018.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-19. Penalties

(a) Failure to collect, account for, and pay over tax, or attempt to defeat or evade tax. -- Any person required to collect, account for and pay over any tax administered under this article, who willfully fails truthfully to account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable for a money penalty equal to the total amount evaded, or not collected, or not accounted for and paid over. No additions to tax shall be imposed under section eighteen for any offense to which this subsection is applicable.
(b) Fraudulent statement or failure to furnish statement to employees. -- Any person required under the provisions of section seventy-two, article twenty-one of this chapter to furnish a statement to an employee, who willfully furnishes a false or fraudulent statement, or who willfully fails to furnish a statement in the manner, at the time, and showing the information required by said section, or regulations prescribed thereunder, shall for each such failure be subject to a money penalty of $50.
(c) Fraudulent claim for refund or credit. -- In the case of the filing of a false or fraudulent claim for refund or credit with the intent to defraud this state, there shall be added to such amount erroneously refunded or credited a penalty equal to fifty percent thereof. No additions to tax shall be imposed under section eighteen for any offense to which this subsection is applicable. The burden of proving fraud or intent to defraud shall be upon the Tax Commissioner.
(d) Collection of penalty. -- Any money penalty may be collected in the same way as the tax imposed by this article.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-20. Effective Date; Transition Rules

(a) The provisions of this article shall take effect on July 1, 1978, except to the extent modified in this section.
(b) The provisions of sections one through fourteen shall apply on and after the effective date of this article irrespective of when the tax liability arose: Provided, That when the assessment has been made prior to the effective date of this article, the rights and duties of the taxpayer and the State of West Virginia shall be determined with regard to the assessment, hearing and appeals therefrom by the laws of the State of West Virginia as they existed prior to the effective date hereof, which laws shall be preserved and continued with respect to such assessment, hearing and appeals as fully and completely as if set forth in extenso herein.
(c) The provisions of sections fifteen through nineteen shall apply only with respect to taxes imposed for periods ending on or after the effective date of this article. Tax liabilities, if any, arising prior to the effective date of this article shall, with respect to additions to tax, penalties and interest, be determined, administered and assessed as if this act and the sections and articles it amends and reenacts or repeals had not been amended and reenacted or repealed, and the rights and duties of the taxpayers and the State of West Virginia shall be fully and completely preserved.
(d) Notwithstanding subsection (c) above, the provisions of sections sixteen, seventeen, eighteen and nineteen of this article may apply to tax liabilities arising during any period prior to the effective date of this article if (1) the Tax Commissioner has not issued an assessment with respect to such prior period, or (2) the Tax Commissioner has issued such assessment which is or may be the subject of a petition for reassessment and his decision thereon has not been issued as of the effective date of this article, and the taxpayer elects to have all of the provisions of sections sixteen, seventeen, eighteen and nineteen of this article apply as fully as if the same had been in effect at the time the tax liability arose. Such election shall be made within sixty days after assessment or within sixty days after the effective date of this article, whichever last occurs. No election under this subsection shall serve to shorten the statute of limitations upon assessments otherwise applying to tax liabilities arising prior to the effective date of this article.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-21. Severability

If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect, impair or invalidate other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-23. Alternative Dispute Resolution of Tax Disputes

On or before December 31, 2002, the Tax Commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code which adopt and implement alternative dispute resolution mechanisms which offer taxpayers voluntary and cost-effective methods of resolving tax disputes in order to encourage voluntary settlements and minimize the number of disputes that require litigation to resolve the controversy.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-24. Commissioner to Review Taxpayer Problem Resolution Procedures; Report to Legislature

The commissioner shall review the procedures utilized to resolve taxpayer complaints and problems to determine whether taxpayer complaints and problems are being remedied promptly and to assure that taxpayer rights are safeguarded and protected during tax determination and collection processes. The commissioner shall, on or before October 1, 2004, report the findings of the review to the Joint Committee on Government and Finance with recommendations on the need for legislation to implement a taxpayer resolution program.
2023 West Virginia Code › Chapter 11. Taxation › Article 10. West Virginia Tax Procedure and Administration Act › §11-10-25. Taxpayer Must Show Tax Exemption Applies; Presumption

(a) The burden of proving that a tax exemption applies to any tax administered by the Tax Commissioner shall be upon the taxpayer. Tax exemptions administered by the Tax Commissioner shall be strictly construed against the taxpayer and for the payment of any applicable tax.
(b) To prevent evasion, it is presumed that a tax exemption does not apply until the contrary is clearly established by a preponderance of the evidence.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-1. Legislative Finding; Purpose

The Legislature finds that there is a need for an independent quasi-judicial agency separate and apart from the Tax Division to resolve disputes between the Tax Commissioner, county assessors, county commissions, and taxpayers to maintain public confidence in the state tax system. The Legislature does therefore declare that the purpose of this article is to create the West Virginia office of tax appeals to resolve disputes between the Tax Commissioner, county assessors, county commissions, and taxpayers and to prescribe the powers and duties of the office of tax appeals.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-2. Definitions

(a) "Division" means the Tax Division of the West Virginia Department of Tax and Revenue.
(b) "Tax commissioner" or "commissioner" means the Tax Commissioner of the State of West Virginia or his or her authorized designee.
(c) "Office of tax appeals" means the West Virginia office of tax appeals created by this article.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-4. Principal Office; Place for Hearings; County Commission to Provide Facilities

The principal office shall be at the state capital, but the office of tax appeals may hold hearings at any place within this state. A county commission, upon request by the office of tax appeals, shall provide it with suitable rooms and facilities for hearings it holds in that county at times convenient to the county commission and the office of tax appeals.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-5. Seal; Authenticating Records; Judicial Notice

The office of tax appeals shall have a seal. The seal shall have the following words engraved thereon: "West Virginia Office of Tax Appeals." The office of tax appeals shall authenticate all of its orders, records and proceedings with the seal; and the courts of this state shall take judicial notice of the seal.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-6. Chief Administrative Law Judge; Appointment, Term and Vacancy; Qualifications; Compensation; Conflicts of Interest Prohibited; Removal

(a) The Governor, with the advice and consent of the Senate, shall appoint the Chief Administrative Law Judge from a list of three qualified nominees submitted to the Governor by the board of Governors of the West Virginia State Bar for a four-year term. An appointment to fill a vacancy in the position shall be for the unexpired term.
(b) Prior to appointment, the Chief Administrative Law Judge shall be a citizen of the United States and a resident of this state who is admitted to the practice of law in this state and who has five years of full-time or equivalent part-time experience as an attorney with federal or state tax law expertise or as a judge of a court of record.
(c) The salary of the Chief Administrative Law Judge shall be set by the Secretary of the Department of Revenue created in section two, article one, chapter five-f of this code. The salary shall be within the salary range for comparable chief administrative law judges as determined by the state Personnel Board created by section six, article six, chapter twenty-nine of this code.
(d) The Chief Administrative Law Judge during his or her term shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be associated with any group or entity which is itself engaged in the active practice of law: Provided, That nothing in this paragraph may be construed to prohibit the Chief Administrative Law Judge from being a member of a national, state or local bar association or committee, or of any other similar group or organization, or to prohibit the Chief Administrative Law Judge from engaging in the practice of law by representing herself or his or her immediate family in their personal affairs in matters not subject to this article.
(3) Not engage directly or indirectly in any activity, occupation or business interfering or inconsistent with his or her duties as Chief Administrative Law Judge;
(4) Not hold any other appointed public office or any elected public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve on or under any committee of any political party.
(e) The Governor may remove the Chief Administrative Law Judge only for incompetence, neglect of duty, official misconduct or violation of subsection (d) of this section, and removal shall be in the same manner as that specified for removal of elected state officials in section six, article six, chapter six of this code.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-7. Powers and Duties of Chief Administrative Law Judge; All Employees, Except Chief Administrative Law Judge, Members of Classified Service; Qualifications of Administrative Law Judges

(a) The Chief Administrative Law Judge is the chief executive officer of the Office of Tax Appeals and he or she may employ one person to serve as executive director, two staff attorneys, and other clerical personnel as necessary for the proper administration of this article. The Chief Administrative Law Judge may delegate administrative duties to other employees, but the Chief Administrative Law Judge is responsible for all official delegated acts.
(1) Upon the request of the Chief Administrative Law Judge, the Governor may appoint up to three administrative law judges as necessary for the proper administration of this article.
(2) All employees of the Office of Tax Appeals, except the Chief Administrative Law Judge, shall be in the classified service and shall be governed by the provisions of the statutes, rules, and policies of the classified service in accordance with the provisions of 29-6-1
et seq.
of this code.
(3) Prior to employment by the Office of Tax Appeals, all administrative law judges shall be admitted to the practice of law in this state and have at least two years of full-time or equivalent part-time experience as an attorney with federal or state tax law expertise.
(4) The Chief Administrative Law Judge and all administrative law judges shall be members of the Public Employees Retirement System and do not qualify as participants in the judicial retirement system during their tenure with the Office of Tax Appeals.
(b) The Chief Administrative Law Judge shall:
(1) Direct and supervise the work of the legal staff;
(2) Make hearing assignments;
(3) Maintain the records of the Office of Tax Appeals;
(4) Review and approve decisions of administrative law judges as to legal accuracy, clarity and other requirements;
(5) Publish decisions in accordance with the provisions of 11-10A-16 of this code;
(6) Submit to the Legislature, on or before February 15, an annual report summarizing the Office of Tax Appeals activities since the end of the last report period, including a statement of the number and type of matters handled by the Office of Tax Appeals during the preceding fiscal year and the number of matters pending at the end of the year; and
(7) Perform the other duties necessary and proper to carry out the purposes of this article.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-8. Jurisdiction of Office of Tax Appeals

The Office of Tax Appeals has exclusive and original jurisdiction to hear and determine all:
(1) Appeals from tax assessments issued by the Tax Commissioner pursuant to article ten of this chapter;
(2) Appeals from decisions or orders of the Tax Commissioner denying refunds or credits for all taxes administered in accordance with the provisions of 11-10-1
et seq.
of this code;
(3) Appeals from orders of the Tax Commissioner denying, suspending, revoking, refusing to renew any license, or imposing any civil money penalty for violating the provisions of any licensing law administered by the Tax Commissioner;
(4) Questions presented when a hearing is requested pursuant to the provisions of any article of this chapter which is administered by the provisions of 11-10-1
et seq.
of this code;
(5) Matters which the Tax Division is required by statute or legislatively approved rules to hear, except employee grievances filed pursuant to 6C-2-1
et seq.
of this code;
(6) Other matters which may be conferred on the office of tax appeals by statute or legislatively approved rules; and
(7) Appeals by any party aggrieved by the valuation of real property and personal property tax assessments and classifications or taxability as set forth in 11-3-1
et. seq.
of this code.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-9. Appeal to Office of Tax Appeals; Petition; Answer

(a) A proceeding before the Office of Tax Appeals appealing a tax assessment, a denial of a tax refund or credit or any other order of the Tax Commissioner, or requesting a hearing pursuant to the provisions of any article of this chapter which is administered pursuant to article ten of this chapter, shall be initiated by a person timely filing a written petition that succinctly states:
(1) The nature of the case;
(2) The facts on which the appeal is based; and
(3) Each question presented for review by the Office of Tax Appeals.
(b) Except where a different time for filing a petition is specified elsewhere in this code, a petition filed pursuant to subsection (a) of this section is timely filed if postmarked or hand delivered to the Office of Tax Appeals within sixty days of the date a person received written notice of an assessment, denial of a refund or credit, order or other decision of the Tax Commissioner.
(c) The Office of Tax Appeals shall, within five days of receipt of a timely petition filed pursuant to subsection (a) of this section, provide the Tax Commissioner with a copy of the petition. The Tax Commissioner shall submit a written answer to the petition within forty days of his or her receipt of the petition. The answer shall succinctly state:
(1) The nature of the case;
(2) The facts relied upon by the Commissioner;
(3) An answer to each question presented for review.
(d) A proceeding before the Office of Tax Appeals in other matters conferred by statute or legislatively approved rules shall be initiated by filing a petition with the Office of Tax Appeals in accordance with the provisions of the applicable statute or rule.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-10. Hearing Procedures

(a) The office of tax appeals shall assign a date, time, and place for a hearing on a petition and shall notify the parties to the hearing by written notice at least 20 days in advance of the hearing date. The hearing shall be held within 45 days of the due date of the commissioners answer unless continued by order of the office of tax appeals for good cause.
(b) A hearing before the office of tax appeals shall be heard de novo and conducted pursuant to the provisions of the contested case procedure set forth in 29A-5-1
et seq.
of this code to the extent not inconsistent with the provisions of this article. In case of conflict, the provisions of this article shall govern. The provisions of 29A-5-5 of this code are not applicable to a hearing before the office of tax appeals.
(c) The office of tax appeals is not bound by the rules of evidence as applied in civil cases in the circuit courts of this state. The office of tax appeals may admit and give probative effect to evidence of a type commonly relied upon by a reasonably prudent person in the conduct of his or her affairs.
(d) All testimony shall be given under oath.
(e) Except as otherwise provided by this code or legislative rules, the taxpayer or petitioner has the burden of proof.
(f) The administrative law judge may ask for proposed findings of fact and conclusions of law from the parties prior to the issuance by the office of tax appeals of the decision in the matter.
(g) Hearings shall be exempt from the requirements of 6-9A-1
et seq.
and 29B-1-1
et seq.
of this code.
(h) For all appeals regarding property tax assessments, taxability, and classifications pursuant to 11-3-1 et. seq., the standard of proof which a taxpayer must meet at all levels of review and appeal shall be a preponderance of the evidence standard.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-11. Small Claims Hearing

(a) If the amount in dispute in any petition filed with the Office of Tax Appeals does not exceed $10,000 for any one taxable year, then, at the option of the taxpayer and with the concurrence of the Tax Commissioner and the Office of Tax Appeals, the hearing shall be conducted under this section. Notwithstanding the provisions of section fourteen of this article, a hearing under this section shall be conducted in an informal manner and in accordance with the rules of practice and procedure as the Office of Tax Appeals may prescribe.
(b) At any time before commencement of the hearing held under this section, the petitioner may unilaterally withdraw the election made under subsection (a) of this section. Upon a change of election, a hearing shall be held in the same manner as other contested matters to which this article applies.
(c) A decision entered in any hearing conducted under this section is not subject to administrative or judicial review under this article, article ten of this chapter or article five, chapter twenty-nine-a of this code and may not be treated as precedent for any other contested matter. The amount, if any, owed by the taxpayer to the state shall be paid within thirty days after notice of the decision is served on the taxpayer. The amount, if any, of overpayment by the taxpayer shall be promptly refunded or credited to the taxpayer.
(d) For purposes of this section, the amount in dispute includes tax, additions to tax and penalties, but excludes interest.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-12. Powers of the Office of Tax Appeals

In determining the outcome of a case, the office of tax appeals may affirm, reverse, modify or vacate an assessment of tax; may order the payment of or deny a refund, in whole or part; may authorize or deny a credit, in whole or part; or may grant other relief necessary or appropriate to dispose of the matter.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-14. Recording Hearings; Notice; Record; Transcripts; Costs

(a) Except in the small claims division, all hearings before the office of tax appeals shall be recorded by means acceptable for use in courts of this state. All parties shall receive notice that the hearing will be recorded and that each is entitled to receive a copy of the recording at cost.
(b) A copy of the written exhibits made part of the record shall be available to any party upon request and payment of a reasonable fee.
(c) Upon appeal to circuit court, a verbatim transcript and copy of written exhibits shall be prepared for submission to the circuit court with the cost paid by the party taking the appeal: Provided, That if both parties appeal, the cost of the transcript shall be shared equally by the two parties.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-15. Appearances Before the Office of Tax Appeals

(a) A person may appear before the office of tax appeals in his or her own behalf, or may be represented by an attorney or by any other person as he or she may choose.
(b) Nothing in this section may be construed to permit the unauthorized practice of law as defined by the West Virginia Supreme Court of Appeals.
2023 West Virginia Code › Chapter 11. Taxation › Article 10A. West Virginia Office of Tax Appeals › §11-10A-16. Decisions and Orders of the Office of Tax Appeals; Publication

(a) Every final decision or order of the office of tax appeals shall be in writing and shall include a concise statement of the material facts and conclusions of law.
(b) All final decisions or orders of the office of tax appeals shall be issued within a reasonable time, not to exceed six months, from the date the petition is filed or from the date the hearing record is closed, whichever is later.
(c) All final decisions and orders, except small claims decisions, shall be published in the state register after having been redacted to maintain confidentiality. The office of tax appeals may also post its redacted decisions on the Internet.