W. Va. Code R. § 110-21-60

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

Section 110-21-60 - Change Of Election

60.1. General. - Unless otherwise provided herein, any change of election made by a taxpayer for federal income tax purposes pursuant to the provisions of the Internal Revenue Code and its applicable regulations, which increases or decreases the taxpayer's federal taxable income for a taxable year, must be made identically for West Virginia income tax purposes, except to the extent that such federal provisions are inconsistent with the West Virginia Personal Income Tax Act. A taxpayer making such a change of election for federal income tax purposes shall file an amended West Virginia return within ninety (90) days thereafter.

60.1.1. Any change of election - shall be subject to the approval of the Tax Commissioner and, for this purpose, he may require such information, records or evidence that he deems necessary and may attach such conditions or limitations to his approval of such a change of election as he may consider advisable.

60.2. Husband And Wife.

60.2.1. Change From Separate To Joint Return. - A husband and wife can file separate West Virginia returns, and then after the time for filing returns (April 15th, for calendar year taxpayers) has passed they may elect to file a joint West Virginia return. This election may be made within three (3) years after the date the original return was originally due, without regard to any extension of time. This election to change from separate to joint may, however, only be made if the taxpayer has made the same election federally. See Section 11 of these regulations.

60.2.1.2. If a husband and wife determine their federal taxable income on a joint federal return, they may elect to determine their West Virginia taxable income on a joint West Virginia return. If the taxpayers elect to change from a joint return to separate returns federally, within the prescribed time period, the taxpayers must also make the same election for West Virginia purposes. (See Section 11 of these regulations). An election to file a joint West Virginia return is binding and may not be changed after the due date of the original West Virginia return. A different election may be made each year.

60.2.2. Husband And Wife With Different Resident Status. - Sections 11 and 31 of these regulations provide that, where either husband and wife is a resident and the other is a nonresident, they shall file separate returns unless they were otherwise entitled to file a joint federal return and both elect to file a joint West Virginia return for the taxable year as if both were residents. A husband and wife may elect to file a joint West Virginia return only if one spouse was a resident for the entire taxable year and the other spouse was a nonresident for the entire taxable year. If they exercise such election they will be permitted to change their original election to file separate State returns and to make, instead, a joint return as if both were residents in accordance with Subsection 60.1 above, provided that the tax due on such joint return is paid in full at the time it is filed.

60.2.3. Approval For Change Of Election. - Elections to make the changes as hereinbefore described and to file amended returns shall be subject to the Tax Commissioner's approval and discretion. No amended return filed with the Tax Commissioner shall be valid unless the amount of tax due on such amended return is or has been paid in full at the time of the filing of the amended return.

60.3. Additions To Tax And Interest. - The filing or acceptance of an amended return pursuant to this regulation shall not prevent the assessment of additions to tax or interest to which the taxpayer may be subject prior to the filing of such amended return, except that the amount thereof shall be computed upon the amount of tax due after giving effect to any change of election made in such amended return.

W. Va. Code R. § 110-21-60