W. Va. Code R. § 110-21-43

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

Section 110-21-43 - Credit For Consumers Sales And Service Tax And Use Tax Paid

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).

W. Va. Code R. § 110-21-43