W. Va. Code R. § 110-10H-6

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 110-10H-6 - Waiver of Penalties; Criminal Immunity; Exceptions and Limitations

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.

W. Va. Code R. § 110-10H-6