W. Va. Code R. § 110-21-55

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

Section 110-21-55 - Declarations Of Estimated Tax

55.1. Requirement Of Declaration. - Every resident and nonresident individual whose West Virginia adjusted gross income (other than from wages on which the proper amount of tax is withheld under Section 71 of these regulations) can reasonably be expected to exceed four hundred dollars ($400) shall make and file a West Virginia declaration of estimated tax for the taxable year unless the estimated tax otherwise due in installment payments is remitted through additional withholding by the employer from the employee's wages during the taxable year or withholding satisfies at least ninety percent (90%) of the annual personal income tax liability.

55.1.1. If in addition to income from wages subject to West Virginia withholding an individual also has other income, the sum of that individual's allowable personal exemptions are to be counted only once for purposes of determining the amount of withholding taxes and estimating the tax due on the additional income. In other words, the amount of West Virginia personal income taxes owed for the taxable year (determined before application of credit for employer withholding) must be prepaid either by employer withholding, installment payments or a combination of both. Taxpayers are encouraged to increase the amount withheld from wages under W. Va. Code '11-21-71 and Section 71 of these regulations whenever practicable in order to insure that the proper amount of taxes are prepaid for the taxable year.

55.1.1.1. Whether or not a taxpayer is required to file a federal declaration of estimated tax for the taxable year or remit installment payments of estimated federal income tax is not relevant to determining whether or not the taxpayer is required to file a West Virginia declaration of estimated tax for the taxable year.

55.1.2. Examples. - Application of Subsection 55.1 of this regulation is illustrated by the following examples. The applicability of safety zones is not considered in any of the examples set forth below. See Subsection 56a of these regulations for a discussion of safety zones.

Example 1. - X, a taxpayer making his return on the calendar year basis, is married and has two (2) dependent children. X is sole proprietor of a retail business which is his only source of income. X can reasonably expect to realize twenty-five thousand dollars ($25,000) from the business during 1989, based on prior year's earnings. Therefore, X is required to make a declaration of estimated tax, because his income can reasonably be expected to exceed the sum of his personal exemptions plus four hundred dollars ([2,000 X 4] + 400 = $8,400) for 1989.

Example 2. - Y is a cash basis taxpayer with three (3) personal exemptions including himself. Y is employed and expects to receive twenty-three thousand dollars ($23,000) subject to withholding during calendar year 1989. Also, Y expects to receive twelve thousand dollars ($12,000) of income during the taxable year from the practice of a profession on his own account. Y is required to file a West Virginia declaration of estimated tax, for Y's income ($12,000) not subject to withholding exceeds four hundred dollars ($400). The sum of his personal exemptions (2,000 X 3 = $6,000) was considered in determining the amount withheld from his wages for the 1989 taxable year. Alternatively, Y could increase the amount being withheld for West Virginia personal income taxes by his employer. If the amount of estimated tax due on Y's other income is remitted through additional withholding, Y will not be required to file a declaration of estimated tax and make quarterly installment payments.

Example 3. - P is a taxpayer making his return on a calendar year basis. P is engaged in the practice of law as a sole practitioner. He has West Virginia adjusted gross income of three thousand dollars ($3,000) from his profession each month in the first (1st) quarter of 1989. He can reasonably expect that his profession will continue to average three thousand dollars ($3,000) for each month throughout the year, and that he will not have income from any other source during 1989. Since P's gross income is not subject to withholding, he is required to file a declaration of estimated tax for that year, on or before April 15, 1989. Since P's West Virginia adjusted gross income from sources other than wages subject to withholding exceeds his two thousand (2,000) dollar personal exemption plus four hundred dollars ($400), P is required to file a declaration of estimated tax for the 1989 tax year on or before April 15, 1989, and make quarterly installment payments.

Example 4. - S, a married taxpayer, has been regularly employed for many years. As of January 1, 1989, his salary was twenty-six thousand dollars ($26,000) per year. S also owns stocks and other investments which he inherited when his father died in 1987, and which pay S approximately five thousand dollars ($5,000) a year. Because his West Virginia adjusted gross income not subject to withholding taxes exceeds four hundred dollars ($400), and the sum of his personal exemptions (2,000 X 2 = $4,000) was considered in determining employer withholding taxes, S is required to file a declaration of estimated tax for calendar year 1989 by April 15, 1989, unless the amount of tax remitted with his 1989 annual return will be ten percent (10%) or less of his liability for the taxable year. Alternatively, S can avoid filing a declaration of estimated tax by increasing the amount being withheld for West Virginia personal income taxes by his employer in order to pay the amount of estimated tax that otherwise would be due in installment payments.

Example 5. - H is a married individual with three (3) dependent children. H is employed at an annual salary of eighteen thousand dollars ($18,000). His spouse, W, is employed at an annual salary of sixteen thousand dollars ($16,000). Both salaries are subject to this State's withholding taxes. They have additional income of fifteen thousand dollars ($15,000) from investments. H and W will file a joint personal income tax return for calendar year 1989. Because the amount of West Virginia adjusted gross income from sources not subject to withholding taxes is in excess of four hundred dollars ($400), a declaration of estimated tax is required for the 1989 calendar year. In lieu of filing the declaration of estimated tax, H and W can elect to increase the amount of West Virginia personal income taxes withheld from their wages by their employees so that the required amount of tax is prepaid.

Example 6. - Presuming the same facts as in Example 5 above except that on July 20, 1989, W is the grand prize winner in a contest sponsored by a national magazine. The prize is an initial payment of five thousand dollars ($5,000) plus a payment of one thousand dollars ($1,000) per month for the rest of W's life. An amended declaration of estimated tax must be filed by W or a joint amended declaration by H and W on or before September 15, 1989.

55.1.3. Exemption Of Spouse. - For the purpose of determining whether a declaration of estimated tax is required under Subsection 55.1 of this regulation, a married taxpayer filing a separate declaration may not take into account the exemption of his spouse, if his spouse has, or is reasonably expected to have, West Virginia adjusted gross income, or is reasonably expected to be the dependent of another taxpayer for the taxable year.

55.1.4. Income Of Child. - In estimating the amount of West Virginia adjusted gross income for the taxable year, a parent should not include the income of his or her minor child. Such income is not includible in the gross income of the parent.

55.1.5. Partnerships And S Corporations. - Neither a partnership nor an S Corporation is subject to tax under the West Virginia Personal Income Tax Act. Partners and S Corporation shareholders in their individual capacities must file declarations of estimated income tax for their estimated income from the partnership or S Corporation.

55.1.6. Estates And Trusts. - An estate or trust is generally taxed as an individual but is not required to file a declaration of estimated tax, or remit estimated tax in installment payments during the taxable year. Beneficiaries of estates and trusts must file declarations of estimated tax in their individual capacities and must take into consideration their estimated distributive shares of income from estates and trusts.

55.1.7. Death Of Taxpayer. - No declaration of estimated income tax is required to be filed for a decedent subsequent to the date of his or her death. A short year tax return may however need to be filed and additions to tax may be due for any failure of the decedent to:

(1) timely file a declaration of estimated tax required under W. Va. Code '11-21-55 and Section 55 of these regulations;

(2) timely pay any installment of estimated tax required under W. Va. Code '11-21-56 and Section 56 of these regulations; or

(3) properly estimate his or her income tax. See Subsection 55.3.4.2 of this regulation regarding the making of an amended declaration by a surviving spouse where a joint declaration had been made prior to the death of the decedent.

55.1.8. Fiscal Year Taxpayers. - The provisions of this regulation are equally applicable to fiscal year taxpayers. See Subsection 55.10 of this regulation.

55.1.9. Declaration For Taxable Year Of 52 - 53 Weeks. - No declaration may be made for a period of more than twelve (12) months. For purposes of this Subsection, a taxable year of fifty-two (52) or fifty-three (53) weeks, in the case of a taxpayer who computes his or her taxable income for federal income tax purposes in accordance with the election permitted by 26 U.S.C. s 441(f) shall be deemed a period of twelve (12) months. A separate declaration for a fractional part of a year is required where the taxpayer has a short taxable year for federal income tax purposes.

55.1.10. When Preceding Year Was A Loss Year. - If an individual has zero (0) or negative West Virginia taxable income for the preceding year, a declaration of estimated tax is not required to be filed for the current taxable year until such time as the individual can reasonably estimate that his or her West Virginia adjusted gross income for the current tax year will exceed the amount of his or her allowable exemption(s) plus four hundred dollars ($400) unless the zero (0) or negative West Virginia taxable income in the preceding taxable year was due to:

(1) the carry forward of a loss from a preceding taxable year unless the loss will also be carried forward to the current taxable year with like effect; or

(2) unusual events or occurrences not reasonably expected to affect the current taxable year with like effect.

55.1.10.1. Notwithstanding the provisions of Subsection 55.1.10 above, a declaration of estimated tax is not required for the current year if the amount remitted or that should be remitted with the annual return for that year is ten percent (10%) or less of the tax liability for the taxable year (determined before application of any credits) for employer withholding taxes and installment payments of estimated tax.

55.1.11. Contents Of Declaration.

55.1.11.1. The declaration of estimated tax by an individual shall be made on Form 140-ES.

55.1.11.1.a. For the purpose of making the declaration, the amount of West Virginia adjusted gross income which the taxpayer can reasonably be expected to receive or accrue, depending upon the method of accounting upon which his or her taxable income is computed, and the sum of the estimated allowable deductions and credits to be taken into account in computing the amount of estimated income tax shall be determined upon the basis of the facts and circumstances existing at the time prescribed for the filing of the declaration along with those reasonably to be anticipated for the taxable year.

55.1.11.1.b. Where the taxpayer is employed at the date prescribed for filing his or her declaration at a given wage or salary, it should, in the absence of circumstances indicating the contrary, be presumed by him or her for purposes of the declaration that such employment will continue to the end of the taxable year at the wage or salary received by him or her as of such date.

55.1.11.1.c. In the case of income other than wages and salary, it is the responsibility of the taxpayer to estimate correctly or comply with provisions of these regulations allowing for the timely filing of an annual return to be accepted as a declaration of estimated tax where such other income is expected to be paid with regularity.

55.1.11.1.d. In the care of a taxpayer engaged in a trade, business or profession, he or she shall make an estimate of gross income, deductions and credits in the light of the best available information affecting the trade, business or profession.

55.1.11.1.e. In determining whether or when the filing of a declaration of estimated tax is required by law and these regulations, and in determining the amount of estimated tax, the burden is on the taxpayer to show he or she complied with the law and these regulations. If, upon filing of the annual return, more than ten percent (10%) of the taxpayer's liability is remitted or should have been remitted with the return it will be presumed that there was noncompliance. Similarly, a taxpayer's total West Virginia personal income tax liability for the taxable year, as shown on his or her annual return for that year, will be divided by five (5) to determine whether tax was timely remitted in "equal" installment payments in compliance with the law and these regulations.

55.1.11.2. Use Of Prescribed Form. - Copies of Form 140-ES will, so far as possible, be furnished to the taxpayer by the Tax Commissioner. A taxpayer will not be excused from making a declaration, however, by the fact that no form has been furnished to him or her. Taxpayers not supplied with the proper form should make application therefor to the Tax Department in ample time to have their declarations prepared, verified, and filed with the Tax Commissioner on or before the date prescribed for filing the declaration. If the prescribed form is not available, a statement disclosing the amount estimated as the tax, the estimated credits, and the estimated tax after deducting such credits should be filed as a tentative declaration within the prescribed time, accompanied by the payment of the required installment. Such tentative declaration should be supplemented, without unnecessary delay, by a declaration made on the proper form.

55.2. Definition Of Estimated Tax. - The term "estimated tax" means the amount which an individual estimates to be his income tax under the provisions of the West Virginia Personal Income Tax Act and these regulations for the taxable year, less the amount such individual estimates to be the sum of any credits allowable against the tax.

55.3. Joint Declaration Of Husband And Wife.

55.3.1. In General.- A husband and wife may make a joint declaration of estimated income tax as if they are one (1) taxpayer, even though they are not living together, except as provided below. A joint declaration may be made even though one (1) spouse is expected to have no income during the taxable year. If a husband and wife make a joint declaration, their liability with respect to the estimated tax shall be joint and several.

55.3.2. Exceptions. - A joint declaration of estimated income tax may not be made if the husband and wife are separated under a decree of divorce or of separate maintenance, or if they have different taxable years. Also, a joint declaration of estimated tax may not be filed if the husband and wife do not have the same resident status unless both elect to determine their joint West Virginia taxable income as if both were residents.

55.3.3. Application To Separate Returns. - The fact that a joint declaration of estimated income tax is made by a husband and wife will not preclude them from electing to determine their West Virginia income taxes on separate annual returns. In the case where a joint declaration is made but a joint annual return is not made for the same taxable year, the installment payments of estimated tax for such year may be treated as payments on account of the tax liability of either the husband and wife for the taxable year or may be divided between them in such manner as they may agree. One spouse may claim the full amount of estimated tax paid during the year. Where husband and wife file separate returns, the spouse claiming the estimated tax paid, or each spouse if each claims a portion of the estimated tax paid, must make a notation on his or her West Virginia Personal Income Tax Return to the effect that the estimated tax paid was by a joint declaration.

55.3.3.1. In the event that a husband and wife file separate returns and fail to agree to a division of any estimated tax payments, such payments shall be allowed between them in accordance with the following rule. The portion of estimated tax payments to be allocated to a spouse shall be that portion of the aggregate of all such payments as the amount of tax imposed under the West Virginia Personal Income Tax Act shown on the separate return of the taxpayer bears to the sum of the taxes imposed under the West Virginia Personal Income Tax Act shown on the separate returns of both the taxpayer and his or her spouse.

55.3.3.2. Example. - Assume that for calendar year 1989 H and his spouse, W, make a joint return of estimated tax and pursuant thereto, pay a total of nine hundred dollars ($900) of estimated tax. H and W subsequently file separate returns for 1989 showing tax imposed under the West Virginia Personal Income Tax Act in the amount of five hundred forty-eight dollars ($548) and four hundred fifty dollars ($450) respectively. H and W fail to agree to a division of the estimated tax paid. The amount of the aggregate estimated tax payments allocated to H is computed as follows:

(1) Amount of tax imposed as shown on H's return...$548

(2) Total taxes imposed as shown on W's return...$450

(3) Total taxes imposed as shown on both H's and W's returns...$998

(4) Proportion of taxes on H's return to the total amount of taxes shown on both returns. ($548 - 998) ...54.90%

(5) Amount of estimated tax payments allocated to H ...$494.10

Accordingly, H's return would show remaining tax liability in the amount of $53.90 ($548 taxes shown less than $494.10 estimated tax allocated.)

55.3.4. Death Of Spouse.

55.3.4.1. A joint declaration may not be made after the death of either a husband or wife. However, if it is reasonable for a surviving spouse to assume that there will be filed a joint return for himself and the deceased spouse for his taxable year and the last taxable year which includes the period comprising such last taxable year of his spouse, he may estimate the amount of tax imposed on his and his spouse's taxable income on an aggregate basis and compute his estimated tax in the same manner as though a joint declaration had been filed.

55.3.4.2. If a joint declaration is made by a husband and wife and thereafter one spouse dies, no further payments of estimated tax on account of the joint declaration are required from the estate of the decedent. The surviving spouse, however, shall be liable for the payment of any subsequent installments of the joint estimated tax unless an amended declaration setting forth the separate estimated tax for the taxable year is made by the surviving spouse. Such separate estimated tax shall be paid at the times and in the amounts determined under the rules prescribed in Section 56 of these regulations.

55.3.4.2.a. For the purposes of making the amended declaration by the surviving spouse, and for the allocation of payments made pursuant to a joint declaration between the surviving spouse and the legal representative of the decedent in the event a joint return is not filed, the payments made pursuant to the joint declaration may be divided between the decedent and the surviving spouse in such proportion as the surviving spouse and the legal representative of the decedent may agree.

55.3.4.2.a.1. In the event the surviving spouse and the legal representative of the decedent fail to agree to a division, such payments shall be allocated in accordance with the following rule. The portion of such payments to be allocated to the surviving spouse shall be that portion of the aggregate amount of such payments as the amount of tax imposed under the West Virginia Personal Income Tax Act shown on the separate return of the surviving spouse bears to the sum of the taxes imposed by said Act shown on the separate returns of the surviving spouse and of the decedent; and the balance of such payments shall be allocated to the decedent. This rule may be illustrated by analogizing the surviving spouse described in this rule to H in the example contained in Subsection 55.3.1.1 of this regulation and the decedent in this rule to W in that example.

55.3.5. Signing Of Joint Declaration. - A joint declaration of a husband and wife (if not made by an agent of one (1) or both spouses) shall be signed by both spouses. The provisions of Subsection 55.11 of this regulation, relating to returns made by agents shall apply where one (1) spouse signs a declaration as agent for the other or where a third (3rd) party signs a declaration as agent for both spouses.

55.4. Time For Filing Declaration.

55.4.1. In General. - A declaration of estimated income tax of an individual, other than a farmer, shall be filed on or before April fifteenth (15th) of the taxable year, except that if the requirements of Subsection 55.1 of these regulations are met:

(1) After April first (1st) and before June second (2nd) of the taxable year, the declaration shall be filed on or before June fifteenth (15th) or

(2) After June first (1st) and before September second (2nd) of the taxable year, the declaration shall be filed on or before September fifteenth (15th), or

(3) After September first (1st) of the taxable year, the declaration shall be filed on or before January fifteenth (15th) of the succeeding year.

55.4.2. Exceptions. - A declaration of estimated tax need not be filed for the taxable year if:

(1) At least ninety percent (90%) of the annual tax liability is satisfied by withholding; or

(2) The amount of taxes due for the taxable year that will be remitted (or should be remitted) with the annual return is ten percent (10%) or less.

55.4.3. Optional Rule For Farmers. - See Subsection 55.5 of this regulation.

55.4.4. Fiscal Year Taxpayers. - An individual's tax year for purposes of this tax shall be the same as his or her taxable year for federal income tax purposes. Fiscal year taxpayers, except farmers, shall file declarations of estimated tax in accordance with Subsection 55.9 of this regulation.

55.5. Declarations Of Estimated Tax By Farmers.

55.5.1. In General. - In the case of an individual on a calendar year basis, if that individual expects to derive at least two-thirds (2/3) of his or her estimated West Virginia adjusted gross income from farming, he or she may file a declaration of estimated income tax at any time on or before January fifteenth (15th) of the succeeding year in lieu of the time for filing set forth in Subsection 55.4 of these regulations.

55.5.1.1. "Farming" Defined. - Income is attributable to farming if it is obtained from cultivation of the soil, the raising or harvesting of any agricultural or horticultural commodities, the raising, etc., of livestock, bees, poultry, furbearing animals, or wildlife. In other words, the requisite percentage of West Virginia adjusted gross income must be derived from the operation of a stock, dairy, poultry, fruit or truck farm. If an individual receives for the use of his or her land income in the form of a share of the crops produced thereon, such income is from farming.

55.5.2. Fiscal Year. - In the case of an individual on a fiscal year basis, if that individual expects to derive at least two-thirds (2/3) of his or her estimated West Virginia adjusted gross income from farming, he or she may file a declaration of estimated income tax at any time on or before the fifteenth (15th) day of the first (1st) month of the succeeding year.

55.5.3. Joint Return. - If a joint declaration of estimated tax will be filed by a husband and wife, at least two-thirds (2/3) of their combined estimated West Virginia adjusted gross income must be from farming before that declaration may be filed under Subsections 55.5.1 and 55.5.2. Otherwise, the rules of Subsection 55.4 of this regulation shall control.

55.6. Automatic Extension Of Time For Filing Declarations Of Estimated Tax.

55.6.1. In General. - If an individual determines that the amount of tax to be remitted with his or her annual return for the taxable year will be ten percent (10%) or less of the amount of tax shown (or that should have been shown) to be due on the annual return for the taxable year, determined before application of credits for employer withholding taxes and installment payments of estimated tax, whichever is greater, he or she is only required to file an annual return for the taxable year and pay the amount of tax shown thereon to be due, on or before April fifteenth (15th) of the succeeding tax year. For this purpose, all eligible taxpayers are granted an automatic extension of time from the date when the declaration of estimated tax and installment payments would otherwise be lawfully due until April fifteenth (15th) of the next tax year.

55.6.1.1. A husband and wife who file a joint declaration of estimated tax or a joint annual return are treated as one (1) individual for purposes of Subsection 55.6.1.

55.6.1.2. An individual with estimated tax in excess of forty dollars ($40) would in the absence of Subsection 55.6.1 be required to file his or her declaration of estimated tax as provided in Subsection 55.4 of this regulation.

55.6.1.3. An individual with estimated tax of forty dollars ($40) or less would in the absence of Subsection 55.6.1 be required to file his or her declaration of estimated tax on or before January fifteenth (15th) of the succeeding tax year.

55.6.2. Additions To Tax.

55.6.2.1. If the amount remitted with the annual return is ten percent (10%) or less of the tax liability for the taxable year, or if one of the safety zones applies (See Subsection 56a), no additions to tax under W. Va. Code '11-10-18a will begin to accrue on the amount due until April sixteenth (16th) of the succeeding tax year (sixteenth (16th) day of the fourth (4th) month of the succeeding tax year if filing on a fiscal year basis).

55.6.2.2. If the amount remitted with the annual return exceeds ten percent (10%) of the tax liability and if none of the safety zones discussed under Section 56a of these regulations is applicable, additions to tax shall be imposed and shall be calculated from the date when the declaration of estimated tax and the first installment payment should have been remitted. Additions to tax shall similarly be applied to any subsequent installment payments that should have been remitted, calculated from the date such installments should have been paid. See Sections 56 and 56a of these regulations for matters pertaining to additions to tax and application of safety zones.

55.7. Amendment Of Declaration.

55.7.1. In General. - In making a declaration of estimated income tax, the taxpayer is required to take into account the then existing facts and circumstances as well as those reasonably to be anticipated relating to prospective West Virginia adjusted gross income, allowable deductions for personal exemptions and estimated credits for the taxable year. Amended or revised declarations may be made in any case in which the taxpayer estimates that his or her West Virginia adjusted gross income, deductions for personal exemptions or credits will differ from the West Virginia adjusted gross income, deductions for personal exemptions, or credits reflected in the previous declaration. Only one amended declaration, however, may be filed during the interval between installment dates and no further amendment may be made until a succeeding installment date. An amended declaration may be filed jointly by husband and wife even though separate declarations have previously been filed.

55.7.2. Payments. - Subsequent installment payments shall be proportionally increased or decreased based on the amended declaration. No refund will be issued due to the filing of an amended declaration. Consideration will be given to a refund only in connection with a completed annual return filed by a taxpayer for the taxable year covered by his or her declaration, and/or amended declaration.

55.7.3. Time For Filing Amended Declaration. - An amended declaration of estimated income tax may be filed on or after an installment date prescribed for the taxable year. However, no amended declaration may be filed until after the original declaration has been filed and only one (1) amended declaration may be filed during any interval between installment due dates.

55.7.4. Forms. - An amended declaration shall be made on Form 140-ES clearly marked "AMENDED". If the proper form is not available, the procedure outlined in Subsection 55.1 of this regulation must be followed.

55.8. Return As Declaration Or Amendment.

55.8.1. In General. - If the annual return of the taxpayer is filed as hereinafter provided, the annual return may be treated as the declaration or amended declaration of estimated tax.

55.8.2. Time For Filing Return.

55.8.2.1. Return As Declaration; February Fifteenth (15th). - If the taxpayer files his or her return for the calendar year on or before February fifteenth (15th) of the succeeding calendar year (or if the taxpayer is on a fiscal year basis, the fifteenth (15th) day of the second (2nd) month of the next succeeding fiscal year) and pays therewith the full amount of the tax shown to be due on the return, then such return shall be considered as the taxpayer's declaration if the declaration is not required to be filed during the taxable year, but is otherwise required to be filed on or before January fifteenth (15th) of the succeeding year (or in the case of a fiscal year, the fifteenth (15th) day of the first (1st) month of the succeeding fiscal year).

55.8.2.2. Return As Amendment Of Declaration: January Fifteenth (15th). - If the taxpayer files his or her return for the calendar year on or before January fifteenth (15th) of the succeeding calendar year (or if on a fiscal year basis, the fifteenth (15th) day of the first (1st) month of the succeeding fiscal year), and pays therewith the full amount of the tax shown to be due on the return, then if a declaration was filed during the taxable year, such return shall be considered as the amendment of the declaration if the tax shown on the return is greater than the estimated income tax shown in the declaration.

55.8.2.3. Examples.

Example 1. - An individual taxpayer on the calendar year basis who, subsequent to September 1, 1989, first meets the requirements of Subsection 55.1 of this regulation for filing a declaration for 1989, may satisfy such requirements by filing his or her return for 1989 on or before February 15, 1990, and paying in full at the time of such filing the tax shown thereon to be payable.

Example 2. - Similarly, if a taxpayer files on or before September 15, 1989, a timely declaration for such year and on or before January 15, 1990, files a 1989 return on which the tax shown is more than the estimated income tax shown on such declaration, and pays at the time of such filing the tax shown by the return to be payable, such return shall be treated as the amended declaration permitted to be filed on or before January 15, 1990.

Example 3. - A taxpayer discovers on January 10, 1990, that he underpaid his estimated tax for the calendar year 1989. He may in lieu of filing the amended declaration on January 15, 1990, file his annual return on January fifteenth (15th), and pay in full the amount computed thereon as payable. By so doing he will avoid the additions to tax with respect to the installment payment that was due January 15, 1990. The periods of underpayment of the installments due April 15, 1989, June 15, 1989, and September 15, 1989, will also terminate on January 15, 1990.

55.8.3. Additions To Tax.

55.8.3.1. Compliance with the provisions of Subsection 55.8 will enable a taxpayer to avoid paying additions to tax with respect to an underpayment of the installment not required to be paid until January fifteenth (15th) of the succeeding calendar year.

55.8.3.2. With respect to an underpayment of any earlier installment, compliance with Subsection 55.8 will not relieve the taxpayer from additions to tax imposed under Article 10, Chapter 11, of the West Virginia Code. However, the period of the underpayment with respect to an earlier installment will terminate on January fifteenth (15th) of the succeeding calendar year.

55.9. Fiscal Year Taxpayers. - In the case of individuals on a fiscal year basis, other than those referred to in Subsections 55.5 and 55.6 of this regulation, the declaration must be filed on or before the fifteenth (15th) day of the fourth (4th) month of the taxable year. The provisions of this Section and of Section 56 of these regulations shall apply to a taxable year other than a calendar year by the substitution of the corresponding fiscal year months for the calendar year months referred to in this Section 55. See Section 6 relating to accounting periods and tax years.

55.10. Short Taxable Periods.

55.10.1. In General. - If a taxpayer is required to make a declaration of estimated income tax pursuant to Subsection 55.1 of this regulation, and a short taxable year is involved, a separate declaration for such fractional part of the year is required, except as hereinafter provided.

55.10.2. Income And Income Tax Placed On Annual Basis. - In order to determine whether a declaration of estimated tax needs to be filed for a short taxable year, West Virginia adjusted gross income and the taxes imposed under the West Virginia Personal Income Tax Act shall be placed on an annual basis in the manner prescribed in 26 U.S.C. 443(b)(1).

55.10.2.1. Example. - A taxpayer changes from a calendar year to a fiscal year basis beginning July first (1st). The taxpayer will have a short taxable year beginning January first (1st), and ending June thirtieth (30th). The anticipated West Virginia adjusted gross income - (excluding wages on which tax is withheld) for such short taxable year is three thousand dollars ($3,000). His West Virginia adjusted gross income for the purpose of determining whether a declaration is required is six thousand dollars ($6,000), which is the amount obtained by placing the anticipated income of three thousand dollars ($3,000) upon an annual basis ($3,000 multiplied by 12 and divided by 6).

55.10.3. Four (4) Months Or Less. - No declaration is required if the short taxable year is a period of less than four (4) months or one (1) of the safety zones set forth under Section 56a of these regulations is applicable.

55.10.4. Time For Filing.

55.10.4.1. In General. - In the case of a short taxable year, the declaration shall be filed by individuals (other than those referred to in Subsection 55.5 and - 55.6 of this regulation) on or before the fifteenth (15th) day of the fourth (4th) month of such taxable year. If the requirements prescribed in Subsection 55.1 of this regulation are originally met after the first (1st) day of the fourth (4th) month but before the second (2nd) day of the sixth (6th) month, the declaration must be filed on or before the fifteenth (15th) day of the sixth (6th) month. If the requirements of Subsection 55.1 are originally met after the first (1st) day of the sixth (6th) month but before the second (2nd) day of the ninth (9th) month, the declaration must be filed on or before the fifteenth (15th) day of the ninth (9th) month.

55.10.4.2. Short Year Of More Than Six But Less Than Nine (9) Months. - If, however, the period for which the declaration is filed is at least six (6) months but less than nine (9) months and the requirements of Subsection 55.1 of this regulation are not met until after the first (1st) day of the fourth (4th) month, the declaration may be filed on or before the fifteenth (15th) day of the succeeding taxable year.

55.10.4.3. Short Year Of More Than Nine (9) Months. - If, however, the period for which the declaration is filed is for nine (9) months or more and such requirements are not met until after the first (1st) day of the sixth (6th) month, the declaration may be filed on or before the fifteenth (15th) day of the succeeding taxable year.

55.11. Declaration Made By Agent For Individual Under Disability.

55.11.1. In General. - The declaration of estimated tax for an individual who is unable to make a declaration by reason of minority, disease, injury, or other disability may be made and filed by his or her guardian, committee, fiduciary or other person charged with care of the individual or his property (other than a receiver in possession of only a part of the individual's property), or by his or her duly authorized agent in accordance with Subsection 55.11.2 below.

55.11.2. Procedure.

55.11.2.1. General. - Whenever a declaration is made by a duly authorized agent, it must be accompanied by a power of attorney (or copy thereof) authorizing the agent to represent his or her principal in making, executing, or filing the declaration. A copy of the Federal Form used for the same purpose, when properly completed, is sufficient, and in the case of a court appointed agent, a copy of the court order of appointment is sufficient.

55.11.2.2. Disabled Spouse. - Where one spouse is physically unable by reason of disease or injury to sign a joint declaration, the other spouse may, with the oral consent of the one who is incapacitated, sign the incapacitated spouse's name in the proper place in the declaration followed by the words "By...........Husband (or Wife)," and by the signature of the signing spouse in his or her own right, provided that a dated statement signed by the spouse who is signing the declaration is attached to and made a part of the declaration providing the following information: the name of the declaration being filed, the taxable year to which the declaration applies, the reason for the inability of the incapacitated spouse to sign the declaration and a statement verifying that the spouse who is incapacitated consented to the signing of the declaration.

55.11.2.3. Liability Of Taxpayer And Agent. - The taxpayer and his or her agent, if any, are responsible for the declaration as filed and incur liability for any penalties for false, or fraudulent declarations.

55.11.2.3.a. "Agent" Defined. - For purposes of this regulation, the term "agent" includes guardian, committee, fiduciary or other person charged with the care of the individual under a disability, and a duly authorized agent of the taxpayer.

W. Va. Code R. § 110-21-55