W. Va. Code R. § 117-5-4

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

Section 117-5-4 - Application for the Tax Credit

4.1. Prerequisites to Claiming the Tax Credit -- No tax credit is allowed or may be applied under the Statute until the taxpayer seeking to claim the credit has:

4.1.a. Filed with the Authority a written application for the tax credit on forms provided by the Authority;

4.1.b. Filed with the Authority the research and development program or project certification issued pursuant to W. Va. Code § 11-13R-6 for the qualified research and development company that will benefit from the investment;

4.1.c. Filed with the Authority a certified copy of its certificate of incorporation, articles of organization, certificate of formation of limited partnership or statement of limited liability partnership, as appropriate; and

4.1.d. Received from the Authority certification of the amount of tax credit to be allocated to the eligible taxpayer, as described in subsection 4.9 of this Rule.

4.2. Contents of the Application. -- The application shall be signed and verified by the applicant or by a duly authorized representative of the applicant, and shall, in addition to the items required by the Statute, contain the following:

4.2.a. The full legal name and tax identification number of the applicant;

4.2.b. The applicant's physical address, mailing address and telephone number;

4.2.c. If the applicant is a business entity, a copy of the applicant's bylaws, operating agreement or partnership agreement certified as a true and correct copy thereof by an officer, manager, member or partner of the entity;

4.2.d. If the applicant is a corporation, a copy of any agreements effective among the shareholders, including shareholder agreements as described in W. Va. Code § 31D-7-732 or a statute of similar import;

4.2.e. If the applicant is a business entity, the names and addresses of, as applicable, the individuals and entities serving on the board of directors or other managing body of the applicant or as the managers or general partners of the applicant. The addresses shall include street and number, city or town, state and zip code;

4.2.f. If the applicant is a business entity, the names and addresses of, as applicable, the individuals and entities having an ownership interest in the applicant and the percentage of the entity owned by each owner. The addresses shall include street and number, city or town, state and zip code;

4.2.g. An agreement that the applicant, if accepted as an eligible taxpayer, does, and will, comply with all requirements of the Statute and this Rule;

4.2.h. A statement as to the amount of proposed qualified investment in a qualified research and development company;

4.2.i. A completed Form WV-ARI-001, Authorization to Release Information, or any subsequent applicable document of similar import, required for the applicant to waive tax confidentiality provisions found in the West Virginia Code; and

4.2.j. Any and all additional information or statements requested by the Authority.

4.3. Application Forms. -- A person applying to become an eligible taxpayer may obtain the form from the Director at the following address: West Virginia Economic Development Authority, NorthGate Business Park, 160 Association Drive, Charleston, WV 25311-1217.

4.4. Filing. -- Each applicant shall file with the Director three (3) complete applications with original signatures.

4.5. Application Receipt and Review.

4.5.a. During regular business hours of the Authority, the Authority shall receive applications on a first come, first served basis beginning on July 1, 2005; provided, that all applications received by the Authority on the same calendar day shall be considered simultaneously received regardless of the time of day of actual delivery. The Authority shall record the time and date of receipt of an application. The Authority may not receive applications prior to July 1, 2005.

4.5.b. Applications shall be considered received by the Authority and submitted by the applicant on the day of actual delivery to the Authority, whether the delivery is performed in person, by mail, by courier or delivery service, or otherwise.

4.5.c. The Director shall review all applications in the order of their receipt to determine if each application is complete. The Director has sole discretion to determine whether an application is complete. The Director's determination shall be made within thirty (30) days of the application's receipt. In the event that the Director determines an application to be incomplete, the Director shall notify the applicant, in writing, of the reasons for that determination and shall return the incomplete application to the applicant. The applicant may resubmit the application after correcting the deficiencies stated in the notice, but resubmission of the application must be made within twenty (20) days after the Authority sends the notice. If an application, though incomplete, is substantially complete as determined in the sole discretion of the Director, the time of receipt of the resubmitted application, for purposes of review by the Director, shall be considered to be the time of receipt of the initial application. If an application is not substantially complete as determined in the sole discretion of the Director, the resubmitted application shall be considered received, for purposes of review by the Director, when resubmitted.

4.5.c.1. In the event of simultaneously received applications submitted by applicants, the Director shall first review the applications to determine the tax credits sought by each application, and the total of the tax credits sought by all the simultaneously received applications. If the total tax credits sought by all the simultaneously received applications are less than the tax credits authorized for allocation by the Authority, after taking into account applications reviewed previously and determined to be complete or substantially complete, the Director shall proceed to review the simultaneously received applications for completeness and the applications shall be considered simultaneously reviewed.

4.5.c.2. If the total tax credits sought by all the simultaneously received applications exceed the tax credits authorized for allocation by the Authority, after taking into account applications reviewed previously and determined to be complete or substantially complete, and if tax credits still remain, the Director shall, within thirty (30) days, but not earlier than five (5) days, after receipt of the applications, conduct a lottery to determine the order of review of the simultaneously received applications as follows:

4.5.c.2.A. The Director shall provide all applicants that submitted simultaneously received applications with written notice of the lottery and the opportunity for their designated representative to attend the lottery;

4.5.c.2.B. To conduct the lottery, the Director shall:

(1) prepare for each applicant, on index cards of the same fundamental character, an index card setting forth the applicant's name and the amount of tax credits sought by the applicant in its application;

(2) deposit one index card for each applicant in a container;

(3) select and draw from the container one index card in a manner that the Director may not determine the identity of the applicant until after the card is drawn from the container;

(4) announce and record the applicant whose index card was drawn and the amount of tax credits sought by that applicant; and

(5) repeat steps (3) and (4) until all applicants' cards are drawn from the container;

4.5.c.2.C. Each application shall be then reviewed for completeness by the Director in the order in which it was drawn from the container;

4.5.c.2.D. Prior to commencement of the lottery process, all applicants participating in the lottery may, by written agreement in a form acceptable to the Authority, agree as to how the remaining tax credits are to be divided amongst the applicants; and

4.5.c.2.E. If for any reason an applicant selected for a tax credit allocation does not make its qualified investment, the Authority shall award the unused credit to the next qualified applicant.

4.6. False Information. -- Upon the submittal of any false or misleading information by an applicant, the Director may reject the application and deny further consideration of the applicant for qualification in that and subsequent fiscal years.

4.7. Complete Application -- Upon a determination by the Director that an application is complete, the Director shall place the complete application on the agenda of the next duly or regularly scheduled meeting of the Authority. Complete applications shall be placed on the agenda in the order of their review by the Director.

4.8. Action of Authority. -- The allocation of all tax credits under this Rule must be approved by the Authority. The Authority shall consider all completed applications in the order they are placed on the agenda and allocate tax credits under this Rule by approving those meeting the requirements of the Statute and this Rule.

4.9. Allocation of Tax Credits. -- In the order set forth in this section, the Authority shall issue certificates of the amount of tax credit to be allocated to each eligible taxpayer.

W. Va. Code R. § 117-5-4