Current through Register Vol. XLI, No. 38, September 20, 2024
43.1. General. -
Any person having a right or claim to certain exemptions from the consumers
sales and service tax or use tax, as detailed under W. Va. Code ''11-15-9b or
11-15A-3b, who has paid to the vendor the consumers sales and service tax or
use tax imposed, may be entitled to exercise or assert such exemption from
consumers sales or use taxes by filing a claim for credit of the consumers
sales or use tax overpayments against taxes otherwise due under the West
Virginia Personal Income Tax Act.
43.2. Filing Claim For Credit. - If in lieu
of filing a claim for refund of consumers sales and service or use tax
overpayments, the taxpayer elects to file a claim for credit, which claim must
be filed within one (1) year from the date of the payment of consumers sales or
use tax, the taxpayer may file a claim for credit on such form and in such
manner as the Tax Commissioner requires and credit may be allowed for the
amount of sales and service tax and use tax overpayments against personal
income tax liability, so long as such credit is applied in accordance with the
requirements set forth in this regulation.
43.2.1. A credit may not be claimed unless
the taxpayer has submitted a properly completed application for credit to the
Tax Commissioner. For purposes of claiming this credit, the completed
application must accompany the appropriate personal income tax form, return, or
report.
43.2.1.1. An application for credit
is required each time a taxpayer seeks to obtain this credit.
43.2.1.2. Any credit may be disallowed as the
result of Tax Department audits of the taxpayer's records.
43.3. Method Of Applying Credit. -
The credit provided under Subsection 43.1 of this regulation may only be taken
in the following order.
43.3.1. If the
taxpayer is a vendor who is subject to Consumers Sales and Service Tax on
certain purchases, he may credit the amount of sales and service tax and use
tax overpayments made against the sales and service tax liability accrued
through the use of his direct pay permit and apply any remaining tax liability
against his quarterly or monthly remittance of the Consumers Sales and Service
Tax imposed and otherwise due; or
43.3.2. If the taxpayer is a vendor who is
subject to the Use Tax on certain purchases, he may credit the amount of sales
and service tax and use tax overpayments remaining after application of the
foregoing Subsection 43.3.1 against the use tax liability accrued through the
use of his direct pay permit and apply the remaining tax liability against his
monthly remittance of the Use Tax imposed and otherwise due; or
43.3.3. If the taxpayer is subject to
Consumers Sales and Service Tax, he may credit the amount of sales and service
tax and use tax overpayments remaining after application of the foregoing
Subsections 43.3.1 and 43.3.2 against his quarterly or monthly remittance of
the Consumers Sales and Service Tax imposed and otherwise due; or
43.3.4. If the taxpayer is subject to the Use
Tax, he may credit the amount of sales and service tax and use tax overpayments
remaining after application of the foregoing Subsections 43.3.1 through 43.3.3
against his quarterly remittance of the Use Tax imposed and otherwise due;
or
43.3.5. If the taxpayer is
subject to the Business and Occupation Tax imposed under W. Va. Code
'11-13-1 et seq., he
may credit the amount of sales and service tax and use tax overpayments after
application of the foregoing Subsections 43.3.1 through 43.3.4 against his
quarterly or monthly remittance of the Business and Occupation Tax imposed and
otherwise due; or
43.3.6. If the
taxpayer is subject to the Annual Tax On Incomes Of Certain Carriers imposed
under W. Va. Code '11-12A-1 et
seq., he may credit the amount of sales and service tax and use tax
overpayments remaining after application of the foregoing Subsections 43.3.1
through 43.3.5 against his annual or semi-annual remittance of the tax imposed
under W. Va. Code '11-12A-1 et
seq. and otherwise due; or
43.3.7.
If the taxpayer is subject to the Severance Tax imposed under W. Va. Code
'11-13A-1
et seq., the taxpayer may credit the amount of sales and service tax and use
tax overpayments remaining after application of the foregoing Subsections
43.3.1 through 43.3.6 against the taxpayer's quarterly or monthly remittance of
the Severance Tax imposed and otherwise due; or
43.3.8. If the taxpayer is subject to the
Telecommunications Tax imposed under W. Va. Code '11-13B-1 et seq., the
taxpayer may credit the amount of sales and service tax and use tax
overpayments remaining after application of the foregoing Subsections 43.3.1
through 43.3.7 against the taxpayer's quarterly or monthly remittance of the
Telecommunications Tax imposed and otherwise due; or
43.3.9. If the taxpayer is subject to the
Corporation Net Income Tax imposed under W. Va. Code '11-24-1 et
seq., the taxpayer may credit the amount of sales and service tax and use tax
overpayments remaining after application of the foregoing Subsections 43.3.1
through 43.3.8 against the taxpayer's installment of estimated tax for the
Corporation Net Income Tax imposed and otherwise due under W. Va. Code
'11-24-17;
or
43.3.10. If the taxpayer is
subject to the Personal Income Tax imposed under W. Va. Code '11-21-1 et
seq., the taxpayer may credit the amount of sales and service tax and use tax
overpayments remaining after application of the foregoing Subsections 43.3.1
through 43.3.9 against the taxpayer's installment of estimated tax for the
Personal Income Tax imposed and otherwise due under W. Va. Code '11-21-56;
or
43.3.11. If the taxpayer is
subject to the Business Franchise Tax imposed under W. Va. Code '11-23-1 et
seq., the taxpayer may credit the amount of sales and service tax and use tax
overpayments remaining after application of the foregoing Subsections 43.3.1
through 43.3.10 against the taxpayer's annual remittance of the Business
Franchise Tax imposed and otherwise due; or
43.3.12. If the taxpayer is required to
deduct and withhold Personal Income Tax under W. Va. Code '11-21-1 et
seq., the taxpayer may credit the amount of sales and service tax and use tax
overpayments remaining after application of the foregoing Subsections 43.3.1
through 43.3.11 against the taxpayer's monthly remittance of the Personal
Income Tax withheld under said W. Va. Code '11-21-1 et
seq. and otherwise due.
43.4. Documents Supporting Claim. - Any
person asserting or exercising a claim of credit arising from an exemption from
the consumers sales and service tax or use tax under Subsection 43.2 of this
regulation shall file with the Tax Commissioner an application for such credit
in such form as the Tax Commissioner shall prescribe, and shall file such
affidavits, invoices, sales slips, records or documents as the Tax Commissioner
may require to prove or verify the taxpayer's right and entitlement to such
credit. The Tax Commissioner may inspect or examine the records, books, papers,
documents, affidavits, sales slips and invoices of a taxpayer or any other
person to verify the truth and accuracy of any report or return or to ascertain
whether the sales and service tax or the use tax has been paid.
43.4.1. In addition to the powers of the Tax
Commissioner set forth in W. Va. Code '11-10-1 et
seq., as a further means of obtaining the records, books, papers, documents,
affidavits, sales slips or invoices of a taxpayer or any other person and
ascertaining the amount of sales and services taxes or use taxes paid or due
under W. Va. Code '11-15-1
et seq. or W. Va. Code '11-15A-1 et seq. or
under any report, form, document or affidavit required, the Tax Commissioner
shall have the power to examine witnesses under oath; and if any witness shall
fail or refuse at the request of the Tax Commissioner to grant access to the
books, records, papers, documents, affidavits, sales slips or invoices
requested by the Tax Commissioner, the Tax Commissioner shall certify the facts
and the names to the circuit court of the county having jurisdiction over the
party, and such court shall thereupon issue a subpoena duces tecum to such
party to appear before the Tax Commissioner, at a place designated within the
jurisdiction of such court, on a day fixed.
43.5. Time Limit For Filing Claim For Credit.
- Any credit of sales and service tax or use tax overpayments against taxes
imposed under the West Virginia Personal Income Tax Act shall be taken within
one (1) year after the payment of consumers sales and or use taxes by the
taxpayer to the vendor. Any such credit or claim of entitlement to such credit
made or asserted more than one (1) year after the payment of such tax by the
taxpayer to the vendor shall be null and void, and such tax overpayments shall
be forfeited.
43.6. Assignment Of
Right To Credit. - Any assignment of the right or entitlement to a credit
arising under either W. Va. Code '11-15-9b
or W. Va. Code '11-15A-3b
shall be subject to strict proof. Any assignee claiming a right or entitlement
to an assigned credit shall submit to the Tax Commissioner and in the form
prescribed by him, an affidavit signed by the assignor and acknowledging the
assignment. The assignee shall attest to the assignment and the terms thereof
in his signed application for credit. The assignee will be subject to the
penalties provided under West Virginia law for perjury for any falsehood set
forth in his signed application. The assignee also will be subject to the
penalties set forth in W. Va. Code '11-9-1
et sea. for any violation thereof.
43.7. No credit shall be allowed unless the
taxpayer or assignee shall have filed a claim for credit, as appropriate, with
the Tax Commissioner in accordance with this regulation.
43.8. Any claim for a tax credit for sales
and service tax or use tax overpayments which is not timely filed or not filed
in proper form or in accordance with the requirements of this regulation shall
not be construed to constitute an obligation of the State of West Virginia for
such credit. No overpayment of sales and service tax or use tax shall be
subject to either W. Va. Code ''11-10-17(d) or 11-10-17(e)(1).
