Current through Register Vol. XLI, No. 38, September 20, 2024
6.1. Waiver of
penalties, additions to tax and interest. B Except as otherwise specifically
provided in subsection 6.2 or elsewhere in this rule, for any taxpayer who
meets the requirements of section seven:
6.1.1. Waiver. -- The Tax Commissioner shall
waive all penalties (including potential criminal penalties) and additions to
tax and 50% of the interest imposed on the late filing of a return or the late
payment of any tax for which tax amnesty is granted, which is owed as a result
of nonpayment, underpayment, nonreporting, misreporting or underreporting of
tax liabilities; and
6.1.2.
Criminal penalties. -- No criminal action may be brought against the taxpayer
for the default for which tax amnesty is granted.
6.1.3. The waivers of interest, additions to
tax and penalties apply only to the amount of tax for which amnesty is
requested and granted. Imposition of interest, additions and penalties are not
barred with respect to any amount of tax later found to be in excess of that
amount.
6.2. Exceptions.
-- The waiver provisions of this section do not apply to nonpayment or
underpayment of tax liabilities, or to nonreported, misreported or
underreported tax liabilities for which amnesty is sought if, as of the date
the taxpayer's application for amnesty is filed:
6.2.1. The taxpayer is the subject of a
criminal investigation (whether or not in relation to taxes) by any agency of
this State; or
6.2.2. An
administrative proceeding or a civil or criminal court proceeding has been
initiated or is pending in any administrative agency or court of this State or
of the United States for nonpayment, underpayment, delinquency, fraud or other
event of noncompliance in relation to any of the taxes administered under W.
Va. Code '11-10. An administrative or civil proceeding shall no longer be
considered to be pending for purposes of this subdivision if the taxpayer
withdraws with prejudice (i.e., with finality) from the proceeding prior to the
granting of amnesty, pays in full the outstanding tax liability plus 50% of the
accrued interest thereon, and otherwise cures any default which is the subject
of the proceeding.
6.2.2.1. A person who is
liable for the money penalty imposed by W. Va. Code
11-10-19(a)
due to failure to collect, account for, and pay over wage withholding taxes is
not eligible for amnesty. The money penalty imposed by this section is equal to
the amount of tax not paid over and does not include interest or additions. In
re Bowen, 116 Bankr. 477 (Bankr. S.D. W. Va. 1990). Because this penalty is
comprised solely of unpaid withholding tax, a waiver of the penalty would
result in forgiveness of tax, which is contrary to the intent of the amnesty
act.
6.3. No
refund or credit. -- No refund or credit may be granted for any penalty,
addition to tax or interest paid prior to the date the taxpayer files his or
her application for tax amnesty pursuant to section seven. No refund or credit
shall be granted for any tax or interest paid under this amnesty program unless
the Tax Commissioner, on his or her own motion, redetermines the amount of tax
or accrued interest thereon.
6.4.
Bar to amnesty. -- A taxpayer shall not be eligible for amnesty for any tax
liability if the taxpayer has other liabilities outstanding for any tax
administered under W. Va. Code §11-10 for which the taxpayer has not
applied for amnesty. This includes tax deficiencies pending before the Office
of Tax Appeals or a court in this State.
6.4.1. A federal bankruptcy court is not
considered a Acourt in this State@ for purposes of this subsection. A taxpayer
who is a Adebtor@ as defined in Section 101 of the Federal Bankruptcy Act (11
U.S.C.A. ' 101) would generally be eligible for amnesty if approved by the
bankruptcy court, but such a taxpayer disputing a state tax liability in
bankruptcy court will not be eligible for amnesty with respect to that tax
liability.
6.5. If a
taxpayer has been determined to be ineligible for amnesty, the amnesty
application form, return(s), supporting documentation and payment received
shall be treated as if they were received apart from the amnesty
application.
6.6. By participating
in the amnesty program, the taxpayer relinquishes the right to subsequently
contest the tax liability that is being paid and to withdraw from the amnesty
program if determined to be eligible for the program.
