W. Va. Code R. § 110-37-29

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

Section 110-37-29 - Additional Remedies for the Tax Commissioner, Administrative Procedures; Deposit of Money Penalties

29.1. For any material violation of W. Va. Code '47-21-1 et seq. or this rule, the Tax Commissioner may:

29.1.1. Revoke or refuse to renew any charitable raffle license;

29.1.2. Suspend the charitable raffle license of any licensee for the period of time the Tax commissioner considers appropriate. A suspension may not be for less than one week nor more than twelve months for each material violation;

29.1.3. Place a charitable raffle licensee on probation for a period of not less than six months nor for more than five years for each material violation;

29.1.3.1. In the event a licensee is placed on probation, then, as a condition of the probation, the licensee shall pay to the Tax Commissioner a Probation Supervision Fee in an amount equal to two thousand dollars or two percent of the gross proceeds derived by the licensee from the conduct of raffle occasions during the period of the probation, whichever is greater.

29.1.3.2. No Probation Supervision Fee paid in accordance with this section may be claimed by the licensee as a reasonable, necessary or actual expense incurred in connection with the conduct of a raffle occasion under the authority of W. Va. Code '47-21-15.

29.1.3.3. The imposition of probation shall be used, when warranted, to insure the charitable raffle licensee's continued adherence to the applicable statutes and legislative rules. After due consideration of the severity of the violation, probationary terms and conditions shall be determined by the Tax Commissioner;

29.1.4. Require a charitable raffle licensee to replace any officer who knew or because of the officer's responsibilities within the licensee organization should have known of a material violation.

29.1.4.1. The Tax Commissioner shall suspend for a period of not less than one month nor more than twenty-four months the license or licenses of a licensee that refuses to replace any officer as directed by the Tax Commissioner. The Tax Commissioner shall consider the severity of the violation and whether the violation was a one-time or repeated occurrence when implementing this disciplinary action;

29.1.5. Require a charitable raffle licensee to prohibit one or more members, supporters, volunteers or employees of the licensee involved in material violations from participating in, or being present at or on the premises of all future raffle occasions held under the charitable raffle license, or for the period of time specified by the Tax Commissioner.

29.1.5.1. The Tax Commissioner shall suspend for a period of not less than one month nor more than twelve months the license of a licensee that refuses to prohibit the participation of identified members, supporters, volunteers or employees as directed by the Tax Commissioner. The Tax Commissioner shall consider the severity of the violation and whether the violation was a one-time or repeated occurrence when applying this disciplinary action; and

29.1.6. Impose a civil money penalty of not less than one hundred dollars nor more than two times the annual gross proceeds derived by the charitable raffle licensee from the conduct of raffle, for each material violation:

29.1.6.1. In setting any monetary penalty for a first violation, the Tax Commissioner shall take into consideration the ability of the licensee to continue to exist and operate.

29.1.6.2. No money penalty paid in accordance with this section may be claimed by the licensee as a reasonable, necessary or actual expense incurred in connection with the conduct of a raffle occasion.

29.1.6.3. For each material violation that is a second or succeeding violation, the amount of the civil penalty that may be imposed may not be less than five hundred dollars and may not exceed the greater of one hundred thousand dollars or two times the annual gross proceeds of the licensee from the conduct of raffle.

29.1.6.4. Any charitable raffle licensee aggrieved by the amount of the civil penalty may in lieu of paying the penalty surrender its charitable raffle license for a minimum period of twelve consecutive months.

29.1.6.5. The license shall be revoked If the licensee refuses to pay the penalty or surrender its license,

29.1.6.6. After the licensee has exhausted all administrative remedies provided in subsection 29.4 of this rule, the licensee may have the issue of whether a material violation was committed by the licensee reviewed in the circuit court of the county where the violation giving rise to the civil penalty occurred.

29.1.6.7. The imposition of civil penalties shall be implemented in accordance with the criteria set forth in subsection 29.2 of this rule.

29.1.6.8. For purposes of this rule, surrender of the charitable raffle license or surrender of the license means and includes surrender of all regular and limited occasion raffle licenses held by the licensee, unless specifically otherwise directed by the Tax Commissioner.

29.2. The imposition of civil money penalties shall be in accordance with the following criteria:

29.2.1. For conducting charitable raffle occasions at times or at a location inconsistent with the license application, the money penalty is:

First violation	$100
Second or succeeding violation	$500	but not more than	$3,000

29.2.2. For failure to timely amend or modify the charitable raffle license in accordance with section 9 of this rule, the money penalty is:

First violation	$100
Second or succeeding violation	$500	but not more than	$3,000

29.2.3. For not having the raffle license posted at the occasion; and allowing charitable raffle workers to play raffle, the money penalty is:

First violation	$100
Second or succeeding violation	$500	but not more than	$3,000

29.2.4. For utilizing charitable raffle workers who fail to qualify under W. Va. Code '47-21-1 et seq. and this rule, the money penalty is:

First violation	$100	but not more than	$500
Second or succeeding violation	$500	but not more than	$2500

29.2.5. For expending or using charitable raffle proceeds for unauthorized expenses, the money penalty is:

First violation	$500
but not more than 2 x Gross Proceeds
Second or succeeding violation	$500
but not more than 2 x Gross Proceeds

29.2.6. For distributing charitable raffle net proceeds for purposes other than qualified charitable or public service purposes or for unauthorized purposes, the money penalty is:

First violation	$500
but not more than 2 x Gross Proceeds
Second or succeeding violation	$500
but not more than 2 x Gross Proceeds

29.2.7. For continuing failure to maintain accurate records, the money penalty is:

First violation	$500
but not more than 2 x Gross Proceeds
Second or succeeding violation	$500
but not more than 2 x Gross Proceeds

29.2.8. For continuing violations of any nature, subsequent to the licensee having been notified in writing of a violation, the monetary penalty is:

First violation	$500
but not more than 2 x Gross Proceeds
Second or succeeding violation	$500
but not more than 2 x Gross Proceeds

29.2.8.1 The penalty for violations occurring subsequent to written notice shall be in addition to the penalty that may be applied for a second or succeeding violation under any other provision of this rule.

29.2.9. For conducting fraudulent charitable raffle occasions, or obtaining a charitable raffle license under false pretenses or deceptive or fraudulent circumstances, the monetary penalty is:

First violation	$500
but not more than 2 x Gross Proceeds
Second or succeeding violation	$500
but not more than 2 x Gross Proceeds

29.2.10. The Tax Commissioner may impose any one or more, or any combination, of the penalties provided for in this subsection 29.2.

29.3. No sanctions or other penalty shall be imposed under subdivision 29.2.4 on a charitable raffle licensee for failure to operate charitable raffle occasions with members when:

29.3.1. The licensee is exempt from federal income taxation under Internal Revenue Code '501 (c)(3) or 501 (c)(4);

29.3.2. The licensee is a non-membership organization that does not have bona fide members; and

29.3.3. The raffle occasions are operated by residents of this State who have been employed by the licensee or who have been meaningfully associated with the licensee for one or more years before the date of the licensee's application for a license under the Act, or for one or more years before the date of the licensee's most recent application for renewal of a license under the Act, whichever is later.

29.4. Administrative procedures.

29.4.1. An order issued under this section shall be served by certified mail or in the manner provided in rule 4(d) of the West Virginia Rules of Civil Procedures

29.4.2. A charitable raffle licensee may appeal an order of the Tax Commissioner issued under this section by filing a written protest with the Tax Commissioner, either in person or by certified mail, properly addressed and postage prepaid, within twenty days after the licensee is served with a copy of the order. Appeals shall be filed in the form or forms as the Tax Commissioner furnishes with the order.

29.4.3. When a timely written protest is filed, the procedures for contested cases set forth in W. Va. Code '29A-5-1 et seq. apply.

29.4.4. The burden of proof in any administrative or court proceeding is on the charitable raffle licensee to show cause why the order of the Tax Commissioner under this section should be modified, in whole or in part, or set aside.

29.5. Nothing contained in this rule shall be construed to prohibit, limit, alter or amend the Tax Commissioner's power under W. Va. Code '47-21-23 to issue an emergency order suspending a raffle licensee.

W. Va. Code R. § 110-37-29