|
A. Coal Severance License Tax
|
[1]
Editor's Note: This ordinance superseded former Art. V, Mineral
Severance License Tax and Coal and Gas Road Improvement and Economic
Development Tax, adopted 12-28-1995, as amended.
The coal severance license tax portions of this article are adopted pursuant to Chapter 37.1 of Title 58.1 of the Code of Virginia (§ 58.1-3740 et seq.) and all other applicable sections of Chapters 37 and 39 of Title 58.1 of the Code of Virginia, as amended, whether or not the specific section is cited herein. Such adoption is by reference and is inclusive, including all tax collection and lien enforcement provisions provided by Virginia law. Any and all additional and applicable sections of Chapters 37, 37.1 and 39 of Title 58.1 of the Code of Virginia, as amended, including but not limited to Virginia Code § 58.1-3703.1, are hereby adopted and incorporated herein by reference. Any amendments to any applicable sections of Chapter 37, Chapter 37.1, and Chapter 39 of Title 58.1 of the Code of Virginia, as amended, shall be deemed to be incorporated into this article when they become effective as if they were separately adopted.
A.Â
As it applies to coal severance license taxes, this article, including the general provisions in Subarticle C, revises and replaces previous ordinances enacted under authority of Virginia Code §§ 58.1-3712 and 58.1-3713 as applied to persons engaged in the business of severing coal from the earth ("Prior Coal Severance License Tax Statutes"). These amendments are intended to reflect changes in the law set forth in Virginia Code § 58.1-3740 et seq. and associated statutory provisions enacted by the Virginia General Assembly in 2013. Sections 88-23.1 through 88-25 shall be effective as of July 1, 2013. Sections 88-23.1 through 88-25 of this article are intended to be applied in accordance with the terms herein. Past administrative practices in applying prior ordinances enacted pursuant to Virginia Code §§ 58.1-3712, 58.1-3712.1, 58.1-3713, 58.1-3713.3, and 58.1-3713.4 shall not apply in interpreting such provisions of this article.
B.Â
All unpaid taxes authorized by the Prior Coal Severance License Tax
Statutes shall remain due and payable.
C.Â
All persons having a valid mineral severance license granted pursuant
to the County's previously enacted ordinances under the Prior Coal
Severance License Tax Statutes shall be deemed to have a license pursuant
to this article until such time as such licenses must be renewed as
provided herein.
D.Â
The penalties for violations of the County's previously enacted ordinances
under the Prior Coal Severance License Tax Statutes prior to the effective
date shall remain applicable and in full force and effect.
E.Â
All assessments and collections previously made pursuant to the Prior
Coal Severance License Tax Statutes prior to the effective date shall
remain applicable and are hereby affirmed and ratified pursuant to
appropriate statutory authority.
The following words, terms, and phrases, when used in this article
as applied to coal severance license taxes, shall have the meaning
ascribed to them in this section, unless otherwise defined by Virginia
law or where the context clearly indicates a different meaning.
Any mineral deposit composed predominantly of hydrocarbons
in a solid state.
The meaning set forth in Virginia Code § 58.1-3740.
The meaning set forth in Virginia Code § 58.1-3740.
The meaning set forth in Virginia Code § 58.1-3740.
The meaning set forth in Virginia Code § 58.1-3740.
With regard to coal, the taking of any coal from any land,
soil, slag piles, or any other source situated in the County in any
manner whatsoever.
The meaning set forth in Virginia Code § 58.1-3740.
To put to beneficial use for such purposes as making coke,
facility heating, power generation, machinery operation, equipment
operation, and similar uses.
A.Â
A license tax is hereby levied and imposed pursuant to Virginia Code
§ 58.1-3741(A) on every coal producer that sells or utilizes
coal severed from the earth within the County. The rate of tax for
the sale or utilization of coal from small mines shall be 3/4 of 1%
of the gross receipts from the sale or utilization of such coal by
the coal producer. The rate of tax for all other coal shall be 1%
of the gross receipts from the sale or utilization of such coal by
the coal producer.
B.Â
In addition to the tax imposed in Subsection A, a license tax is hereby levied and imposed pursuant to Virginia Code § 58.1-3741(B) on every coal producer that sells or utilizes coal severed from the earth within the County. The rate of tax for the sale or utilization of coal from small mines shall be 3/4 of 1% of the gross receipts from the sale or utilization of such coal by the coal producer. The rate of tax for all other coal shall be 1% of the gross receipts from the sale or utilization of such coal by the coal producer.
C.Â
The foregoing taxes are hereby levied and imposed in addition to
all other taxes and fees of every kind now imposed by law upon every
coal producer.
|
B. Gas and Oil Severance License Taxes
|
The gas and oil severance license tax portions of this article are adopted pursuant to Virginia Code §§ 58.1-3712, 58.1-3712.1, 58.1-3713, 58.1-3713.3, and 58.1-3713.4 (the "Gas Severance License Tax Statutes") and all other applicable sections of Chapters 37 and 39 of Title 58.1 of the Code of Virginia, as amended, whether or not the specific section is cited herein. Such adoption is by reference and is inclusive, including all tax collection and lien enforcement provisions provided by Virginia law. Any and all additional and applicable sections of Chapters 37 and 39 of Title 58.1 of the Code of Virginia, as amended, including but not limited to Virginia Code § 58.1-3703.1, are hereby adopted and incorporated herein by reference. Any amendments to any applicable sections of Chapter 37 and Chapter 39 of Title 58.1 of the Code of Virginia, as amended, shall be deemed to be incorporated into this article when they become effective as if they were separately adopted.
A.Â
As it applies to gas and oil severance license taxes, this article,
including the general provisions in Subarticle C, amends the Buchanan
County Coal, Gas and Oil Severance License Tax Ordinance adopted on
June 4, 2012, which was enacted under authority of the Severance License
Tax Statutes and effective as of January 1, 2008. These amendments
shall not alter that prior effective date. This article is intended
to be applied in accordance with the terms stated herein. Past administrative
practices in applying prior ordinances enacted pursuant to the Gas
Severance License Tax Statutes shall not apply in interpreting this
article.
B.Â
All unpaid taxes authorized by the Gas Severance License Tax Statutes
shall remain due and payable.
C.Â
All persons having a valid mineral severance license granted pursuant
to the County's previously enacted ordinances under the Gas Severance
License Tax Statutes shall be deemed to have a license pursuant to
this article until such time as such licenses must be renewed as provided
herein.
D.Â
The penalties for violations of the County's previously enacted ordinances
under the Gas Severance License Tax Statutes prior to the effective
date shall remain applicable and in full force and effect.
E.Â
All assessments and collections previously made pursuant to the Gas
Severance License Tax Statutes prior to the effective date shall remain
applicable and are hereby affirmed and ratified pursuant to appropriate
statutory authority.
The following words, terms, and phrases, when used in this article
as applied to gas and oil severance license taxes, shall have the
meaning ascribed to them in this section, unless otherwise defined
by Virginia law or where the context clearly indicates a different
meaning.
Occluded natural gas produced from coalbeds and rock strata
associated therewith.
The following: (1) in circumstances where the gas or oil
is sold by arms-length transaction between unrelated persons, the
sale price of the gas or oil; (2) in circumstances in which the gas
or oil is (i) utilized or (ii) sold in a related party transaction
or under other circumstances that indicate that the sale is not an
arms-length transaction, the average sale price received by the person
engaged in the business of severing oil or gas from the earth in arms-length
transactions for the sale of other minerals of comparable quality
produced from a comparable area during the same time frame or, if
none, the sale price for other such minerals of comparable quality
as indicated by either appropriate regional indices or sales by other
persons engaged in the severance of similar minerals within the County
or neighboring counties.
All natural gas, including, but not limited to, coalbed methane
gas, whether hydrocarbon or non-hydrocarbon or any combination or
mixture thereof, including hydrocarbons, hydrogen sulfide, helium,
carbon dioxide, nitrogen, hydrogen, casing head gas, and all other
fluids not defined as oil herein.
Except in the case of persons engaging in the production
and operation of severing gases from the earth in connection with
coal mining, the fair market value of the severed oil or gas measured
at the time the oil or gas is utilized or sold for utilization in
the County or at the time the oil or gas is placed in transit for
shipment from the County. When such minerals are placed in transit
for shipment from the County, fair market value may be reduced by
deducting reasonable costs actually incurred by the person engaged
in the business of severing oil or gas from the earth in processing
or transporting the mineral after it is placed in transit for shipment
from the County prior to sale of the mineral. For persons engaging
in the production and operation of severing gases from the earth in
connection with coal mining, gross receipts means the fair market
value of the gas measured at the time it is utilized or sold for utilization
in the County or at the time it is placed in transit for shipment
from the County, with no deduction or allowance for costs. In all
circumstances, gross receipts includes the royalty share of the mineral(s)
severed and all minerals subject to a royalty obligation.
Oil or gas.
Natural crude oil or petroleum and other hydrocarbons, regardless
of gravity, which are produced at the well, in liquid form by ordinary
production methods and which are not the result of condensation of
gas after it leaves the underground reservoir.
The owner of a legal or equitable interest in oil or gas
at the time of severance.
Any individual, firm, partnership, limited liability company,
corporation, cooperative, joint venture, association, estate, trust,
business trust, trustee, trustee in bankruptcy, any person acting
under a declaration of trust, executor, administrator, partner, agent,
receiver, syndicate, assignee, or other group or combination acting
as a unit, in the plural as well as in the singular number.
The following: (1) where the minerals are unleased, the owner(s)
of such minerals; or (2) where the minerals are leased, the lessee
of the mineral or the lessee of the right to extract, mine or produce
such minerals.
The point in distribution of the severed mineral at which
the mineral is placed in final shipment from the County with no additional
treatment, processing, compression, handling, or mechanical manipulation
to be performed within the County. Except in cases where gas is produced
at the wellhead at sufficient pressure and quality such that it is
not treated in any manner or compressed by mechanical compressor within
the County, gas is not placed in transit for shipment from the County
at the wellhead.
With regard to oil or gas, the taking of any oil or gas from
any land, soil, landfill, or any other formation or source situated
in the County in any manner whatsoever.
Producing coalbed methane gas from wells that directly or
indirectly remove gas from: (1) units or permitted well areas which
include coal seams that have been fractured by current or previous
mining activities ("GOB wells"); and (2) units or permitted well areas
which include coal seams that have been fractured in the absence of
mining ("FRAC wells") but where all or some of the fractured coal
seams are within a permitted mine boundary or within the area projected
for mining by the twenty-year mine plan map for any coal operator.
With regard to oil or gas, to put to beneficial use for such
purposes as facility heating, power generation, machinery operation,
equipment operation, and similar uses. Utilized minerals include oil
or gas that is severed from the earth within the County and used by
the person engaged in the business of severing oil or gas from the
earth (or those acting on his behalf, at his direction, or with his
permission or consent) in some beneficial manner, in which case, the
severed and utilized mineral shall be deemed to have been sold for
the fair market value of such mineral.
A.Â
A license tax is hereby levied and imposed pursuant to § 58.1-3712
of the 1950 Code of Virginia, as amended, on every person engaged
in the business of severing gas from the earth. Such tax shall be
at a rate of 1% of gross receipts.
B.Â
In addition to the taxes levied in Subsection A herein, a license tax is hereby levied and imposed pursuant to § 58.1-3713 of the 1950 Code of Virginia, as amended, on every person engaged in the business of severing gas from the earth. Such tax shall be at a rate of 1% of gross receipts.
C.Â
In addition to the taxes levied in Subsections A and B herein, a license tax is hereby levied and imposed pursuant to § 58.1-3713.4 of the 1950 Code of Virginia, as amended, on every person engaged in the business of severing gas from the earth. Such tax shall be at a rate of 1% of gross receipts.
D.Â
A license tax is hereby levied and imposed pursuant to § 58.1-3712.1
of the Code of Virginia, as amended, on every person engaged in the
business of severing oil from the earth. Such tax shall be at a rate
of 1/2 of 1% of gross receipts.
E.Â
The foregoing taxes are hereby levied and imposed in addition to
all other taxes and fees of every kind now imposed by law upon every
person engaged in the business of severing oil or gas from the earth.
|
C. General Provisions Applicable to Coal, Gas and Oil
Severance License Taxes
|
The following words, terms, and phrases, when used in this article,
shall have the meaning ascribed to them in this section, unless otherwise
defined by Virginia law or where the context clearly indicates a different
meaning.
A corporation not publicly traded and having 20 or fewer
shareholders.
Any person involved in any phase of the transportation of
coal, oil, or gas within the County or from the County. This includes,
but is not limited to, the receiving, collection, or assembly of coal,
oil, or gas for conveyance from one mode of transportation to another
or to the same mode of transportation, as well as the actual movement
of the coal, oil, or gas in shipment.
Any act or activity which results in the severing of coal,
oil, or gas from the earth.
Any individual, firm, partnership, limited liability company,
corporation, cooperative, joint venture, association, estate, trust,
business trust, trustee, trustee in bankruptcy, any person acting
under a declaration of trust, executor, administrator, partner, agent,
receiver, syndicate, assignee, or other group or combination acting
as a unit, in the plural as well as in the singular number.
A.Â
It shall be unlawful for any coal producer or any person to engage
in the business of severing coal, oil, or gas from the earth within
the County or to cause others to sever coal, oil, or gas from the
earth within the County unless the coal producer or person engaging
in the business of severing coal, oil, or gas from the earth has first
obtained a current license to do so issued by the Commissioner of
Revenue.
B.Â
Every coal producer and every person engaged in the business of severing
oil or gas from the earth shall file with the Commissioner of Revenue
an application for a license for each of such coal producer's or such
person's mining operations in the County. Every application shall
be signed by each such coal producer or person or an authorized representative
of such coal producer or person. In connection with any such application,
the coal producer or the person engaged in the business of severing
oil or gas from the earth shall provide such information as the Commissioner
of Revenue may require.
C.Â
Every coal producer and every person engaged in the business of severing
oil or gas from the earth that did not have a license to sever coal,
oil, or gas in the County in the previous license tax year shall file
an application as provided herein prior to beginning any severance
of coal, oil, or gas in the County.
|
Every coal producer and every person engaged in the business
of severing oil or gas from the earth that had a license or licenses
to sever coal, oil, or gas in the County in the previous license tax
year shall file an application for the renewal of such license or
licenses on or before March 1 of the current license tax year. In
such case, the existing license shall remain in effect until the new
license is issued. Issuance of a new license may be conditioned upon
receipt by the Commissioner of Revenue of a written report from the
County Treasurer documenting such person's payment of any license
taxes due or an arrangement for the payment of any license taxes.
|
|
The Commissioner of Revenue may grant an extension of time in
which to file an application for a license or renewal thereof, for
reasonable cause. The extension may be conditioned upon the timely
payment of a reasonable estimate of the appropriate tax. Any such
estimated tax is subject to adjustment to the correct tax at the end
of the extension, together with interest from the due date until the
date paid and, if the estimate submitted with the extension is found
to be unreasonable under the circumstances, with a penalty of 10%
of the portion paid after the due date.
|
D.Â
When the required application has been made, the Commissioner of
Revenue shall issue to each applicant who has met all of the requirements
of this article a separate license for each mining operation within
the County, which license shall not be transferable.
E.Â
No license shall be issued or reissued under this section to a person who owns an interest in a mining operation conducted by a person owing delinquent taxes at the time the application is submitted, or to a person who owes delinquent taxes. When such facts are known to the Commissioner of Revenue, he may, at his election, hold the hearing provided for in Subsection F of this section. An arrangement for payment of delinquent taxes made by the County Treasurer may be treated as payment for the purposes of this section.
F.Â
Whenever any person fails to comply with any provision of this article,
the Commissioner of Revenue may hold a hearing after giving such person
10 days' notice, in writing, specifying the time and place of hearing
and requiring the person to show cause why his license should not
be revoked or suspended or his application for renewal of his license
should not be denied. The Commissioner of Revenue may revoke or suspend
or deny reissuance of any one or more of the licenses held by such
person.
Every coal producer and every person engaged in the business
of severing oil or gas from the earth required to pay any of the taxes
imposed by this article shall, on or before the 20th day of each month,
transmit to the Commissioner of Revenue, upon a form furnished by
the Commissioner, a completed return showing such information as the
Commissioner of Revenue may require, including (i) the quantities
of coal, oil, and gas produced from each mining operation, (ii) the
gross receipts from all coal, oil, and gas severed from each mining
operation during the immediately preceding calendar month, and (iii)
any deductions that have been applied in calculating gross receipts.
At the request of the Commissioner of Revenue, coal producers and
persons engaging in the business of severing oil or gas shall provide
the names and addresses of any owners or other persons participating
in each mining operation, any persons who are members of an affiliated
group of which the operator is a member and to whom the coal, oil,
or gas was sold or placed into transit for shipment from the County,
and all persons having an economic interest in the mining operation.
In the event that any date on which a return is to be filed falls
upon a Saturday, Sunday, legal holiday, or other date on which the
County Courthouse is closed, then the time for the filing of such
return shall be extended until the next day that the Commissioner
of Revenue's office is open for business. This return shall be made
under oath and subject to the penalty for perjury. The Commissioner
of Revenue shall transmit to the County Treasurer forthwith all records
related to the taxes owed by and the payments received from each coal
producer and each person engaged in the business of severing gas or
oil from the earth.
A.Â
At the time of transmitting the return required by § 88-32 to the Commissioner of Revenue, the coal producer or person engaged in the business of severing oil or gas from the earth shall remit to the County Treasurer therewith the amount of tax due under the applicable provisions of this article. Failure to remit such tax by the deadline for filing the return required by § 88-32 shall cause such tax to become delinquent.
B.Â
A penalty of 10% of the tax may be imposed upon the failure to file
an application for a license or the failure to pay the required tax
by the appropriate due dates set forth in this article. Only the late
filing penalty shall be imposed by the Commissioner of Revenue if
both the application and tax payment are late; however, both penalties
may be assessed if the Commissioner of Revenue determines that the
taxpayer has a history of noncompliance. In the case of an assessment
of additional tax made by the Commissioner of Revenue, if the application
and, if applicable, the return were made in good faith and the understatement
of the tax was not due to any fraud or reckless or intentional disregard
of the law by the taxpayer, there shall be no late payment penalty
assessed with the additional tax. If any assessment of tax by the
Commissioner of Revenue is not paid within 30 days, the County Treasurer
may impose a 10% late payment penalty. If the failure to file or pay
was not the fault of the taxpayer, the penalties shall not be imposed,
or if imposed, shall be abated by the County Treasurer. In order to
demonstrate lack of fault, the taxpayer must show that he acted responsibly
and that the failure was due to events beyond his or her control.
|
"Acted responsibly" means that: (i) the taxpayer exercised the
level of reasonable care that a prudent person would exercise under
the circumstances in determining the filing obligations for the business
and (ii) the taxpayer undertook significant steps to avoid or mitigate
the failure, such as requesting appropriate extensions (where applicable),
attempting to prevent a foreseeable impediment, acting to remove an
impediment once it occurred, and promptly rectifying a failure once
the impediment was removed or the failure discovered.
|
|
"Events beyond the taxpayer's control" include, but are not
limited to, the unavailability of records due to fire or other casualty;
the unavoidable absence (e.g., due to death or serious illness) of
the person with the sole responsibility for tax compliance; or the
taxpayer's reasonable reliance in good faith upon erroneous written
information from the assessing official who was aware of the relevant
facts relating to the taxpayer's business when he provided the erroneous
information.
|
C.Â
Interest shall be charged on the late payment of the tax from the
due date until the date paid without regard to fault or other reason
for the late payment. Whenever an assessment of additional or omitted
tax by the Commissioner of Revenue is found to be erroneous, all interest
and any penalties charged and collected on the amount of the assessment
found to be erroneous shall be refunded together with interest on
the refund from the date of payment or the due date, whichever is
later. Interest shall be paid on the refund of any tax from the date
of payment or due date, whichever is later, whether attributable to
an amended return or other reason. However, no interest shall be paid
on a refund or charged on a late payment, provided the refund or the
late payment is made not more than 30 days from the date of the payment
that created the refund or the due date of the tax, whichever is later.
Interest charged on any late payment or paid on any refund shall be
calculated at the same rate charged under Virginia Code § 58.1-3916.
No interest shall accrue on an adjustment of estimated tax liability
to actual liability at the conclusion of a base year.
D.Â
The County Treasurer and the Commissioner of Revenue shall reconcile
their records monthly concerning the identities of taxpayers, amounts
received, outstanding taxes due, and, if applicable, any arrangements
made by the County Treasurer for payment of delinquent taxes.
In the event any coal producer or person engaged in the business of severing oil or gas from the earth fails to make a return as provided by this article, the Commissioner of Revenue shall give such coal producer or such person 10 days' notice in writing requiring such coal producer or such person to appear before him, with such books, records, and papers as the Commissioner of Revenue may require relating to the business of such coal producer or such person for such taxable period, and the Commissioner of Revenue may require such coal producer or such person or the agents and employees of such coal producer or such person to give testimony or to answer interrogatories under oath respecting such mining or extracting of coal, oil, or gas or the failure to make a return thereof as provided in this article. If, after being provided with the opportunity to supply such information, such coal producer or such person still fails to make a return or refuses to permit an examination of his or its books, records, or papers, or to appear and answer questions within the scope of such investigation, the Commissioner of Revenue is hereby authorized to make an estimate of gross receipts for all such coal, oil, or gas severed by or at the direction of such coal producer or such person and to assess the appropriate tax, plus penalties and interest in accordance with § 88-33, based upon such information as may be available to him. The County Treasurer may issue a warrant for the collection of any such taxes and penalties so found to be due. The assessment so made shall be deemed prima facie correct. In addition, the Commissioner of Revenue may, upon reasonable notice, assess taxes for such mining operation against any other person liable for the tax.
If the holder of a license issued under this article ceases
to conduct a mining operation, the license shall thereupon expire,
and such license holder shall inform the Commissioner of Revenue in
writing within 30 days thereafter that he has ceased to conduct such
mining operation. A copy of such report, upon receipt thereof, shall
be forwarded to the County Treasurer.
A.Â
Every person who is assessable with a license tax under this article
or who is a common carrier of coal, oil, or gas shall keep sufficient
records, including, but not limited to, records showing the source
and quantity of, and gross receipts from, the coal, oil, and gas which
he has produced or transported, or for which he has received some
economic benefit, to enable the Commissioner of Revenue to verify
the correctness of the tax paid for the license months or years assessable
and to enable the Commissioner of Revenue to ascertain what is the
correct amount of tax that was assessable for each of those months
or years. All such records, books of accounts, and other information
shall be open to inspection and examination by the Commissioner of
Revenue in order to allow the Commissioner of Revenue to establish
whether a particular receipt is directly attributable to the taxable
privilege exercised within the County. The Commissioner of Revenue
shall provide such persons with the option to conduct the audit in
such person's local business office within the County, if the records
are maintained there. In the event the records are maintained outside
the County, copies of the appropriate books and records shall be sent
to the Commissioner's office upon demand.
B.Â
Any common carrier involved in the transportation of coal, oil, or
gas within or from the County shall submit, upon request, to the Commissioner
of Revenue records showing the source and quantity of, and, if purchased,
the price paid for, all coal, oil, or gases which the common carrier
acquired or transported during the applicable time periods. This information
may be made available to any other political subdivision in which
the coal, oil, or gas may have been severed.
The taxes collected pursuant to this article shall be paid and
distributed as provided by Virginia law. Any taxes not distributed
according to specific provisions of law shall be paid into the general
fund of the County. In the event that a taxpayer is issued a refund
of severance license taxes paid pursuant to this article, the recipients
of the revenue from such severance license taxes shall be proportionately
liable for such refund based on their respective percentages of the
original distribution of such revenue. The County Treasurer is hereby
authorized to offset such liability for any such refund against any
future distribution of severance license tax revenues paid pursuant
to this article.
Pursuant to Virginia Code § 58.1-3713, there is hereby
established a Coal and Gas Road Improvement Advisory Committee to
be composed of four members as follows: a member of the Board of Supervisors
of the County appointed by the Board of Supervisors; a representative
of the Virginia Department of Transportation; and two citizens of
the County connected with the coal and gas industries and to be appointed
for a term of four years by the Chief Judge of the Circuit Court.
Pursuant to Virginia Code § 58.1-3713, the Coal and
Gas Road Improvement Advisory Committee shall develop, on or before
July first of each year, a plan for improvement of roads during the
following fiscal year. Such plan must have the approval of three members
of the Committee and shall be submitted to the Board of Supervisors
of the County for approval. The Board of Supervisors may approve or
disapprove such plan, but may make no changes without the approval
of three members of the Committee.
The Board of Supervisors may, in its discretion, and when permitted
by applicable state law, elect to improve city and town roads with
its funds, if consent of the city or town council is obtained.
A.Â
The following persons shall be guilty of a Class 1 misdemeanor:
(1)Â
Any person who engages in the business of severing coal, oil,
or gas from the earth in this County without first obtaining a license
or after a license has been suspended or revoked.
(2)Â
Each officer or director of a corporation that engages in the
business of severing coal, oil, or gas from the earth in this County
without first obtaining a license or after a license has been suspended
or revoked, provided that such officer or director had actual or constructive
knowledge that the corporation was engaging in the business of severing
coal, oil, or gas from the earth in this County without first obtaining
a license or after a license had been suspended or revoked.
(3)Â
Each shareholder of a closely-held corporation that engages
in the business of severing coal, oil, or gas from the earth in this
County without first obtaining a license or after a license has been
suspended or revoked, provided that such shareholder had actual knowledge
or constructive knowledge that the corporation was engaging in the
business of severing coal, oil, or gas from the earth in this County
without first obtaining a license or after a license had been suspended
or revoked.
(4)Â
Any person who violates any provision of this article.
|
Each day of violation shall constitute a separate offense. No person shall be convicted under the provisions of Subsection A(2) and (3) of this section who shall have objected to the conduct of the mining operation in writing to the president or secretary of such corporation and forwarded a copy of this objection to the Commissioner of Revenue.
|
B.Â
It shall be unlawful for any person:
(1)Â
To fail to keep the records required by this article or fail
to make such records available as herein required; or
(2)Â
Willfully to fail to pay, collect, or truthfully account for
and pay any license tax herein imposed; or
(3)Â
Willfully to attempt in any manner to evade or defeat any such
license tax or the payment thereof.
|
Each day of violation shall constitute a separate offense.
|
C.Â
Violations under this section shall be Class 1 misdemeanors, and
shall be punishable by a fine not to exceed $2,500 for each day of
violation and confinement in the County jail for not more than 12
months, either or both in the discretion of the court or jury trying
the case. Conviction of a second offense under this section shall,
in addition to a fine not to exceed $2,500, require confinement in
the County jail for not less than 10 days nor more than 12 months.
D.Â
Any penalty imposed for violation of this section shall be in addition
to the civil remedies or penalties provided for by law.
A.Â
Where, before the expiration of the time prescribed for the assessment
of any license tax imposed pursuant to this article, both the Commissioner
of Revenue and the taxpayer have consented in writing to its assessment
after such time, the tax may be assessed at any time prior to the
expiration of the period agreed upon. The period so agreed upon may
be extended by subsequent agreements in writing made before the expiration
of the period previously agreed upon.
B.Â
Notwithstanding Virginia Code § 58.1-3903, the Commissioner
of Revenue shall assess the license tax omitted because of fraud or
failure to apply for a license for the current license tax year and
the six preceding license tax years.
C.Â
The period for collecting any local license tax shall not expire prior to the period specified in Virginia Code § 58.1-3940, two years after the date of assessment if the period for assessment has been extended pursuant to this section, two years after the final determination of an appeal for which collection has been stayed pursuant to Subsection B or D of § 88-38.3, or two years after the final decision in a court application pursuant to Virginia Code § 58.1-3984 or a similar law for which collection has been stayed, whichever is later.
A.Â
AMOUNT IN DISPUTE
APPEALABLE EVENT
FRIVOLOUS
JEOPARDIZED BY DELAY
Definitions for purposes of this section:
When used with respect to taxes due or assessed, the amount
specifically identified in the administrative appeal or application
for judicial review as disputed by the party filing such appeal or
application.
An increase in the assessment of a license tax payable by
a taxpayer, the denial of a refund, or the assessment of a license
tax where none previously was assessed, arising out of the Commissioner
of Revenue's (i) examination of records, financial statements, books
of account, or other information for the purpose of determining the
correctness of an assessment; (ii) determination regarding the rate
or classification applicable to the licensable business; (iii) assessment
of a license tax when no return has been filed by the taxpayer; or
(iv) denial of an application for correction of erroneous assessment
attendant to the filing of an amended application for license.
A finding, based on specific facts, that the party asserting
the appeal is unlikely to prevail upon the merits because the appeal
is (i) not well grounded in fact; (ii) not warranted by existing law
or a good faith argument for the extension, modification, or reversal
of existing law; (iii) interposed for an improper purpose, such as
to harass, to cause unnecessary delay in the payment of tax or a refund,
or to create needless cost from the litigation; or (iv) otherwise
frivolous.
A finding, based upon specific facts, that a taxpayer designs
to (i) depart quickly from the County; (ii) remove his property from
the County; (iii) conceal himself or his property in the County; or
(iv) do any other act tending to prejudice, or to render wholly or
partially ineffectual, proceedings to collect the tax for the period
in question.
B.Â
Filing and contents of administrative appeal. Any person assessed
with a license tax as a result of an appealable event as defined in
this section may file an administrative appeal of the assessment within
one year from the last day of the tax year for which such assessment
is made, or within one year from the date of the appealable event,
whichever is later, with the Commissioner of the Revenue. The appeal
must be filed in good faith and sufficiently identify the taxpayer,
the tax periods covered by the challenged assessments, the amount
in dispute, the remedy sought, each alleged error in the assessment,
the grounds upon which the taxpayer relies, and any other facts relevant
to the taxpayer's contention. The Commissioner of Revenue may hold
a conference with the taxpayer if requested by the taxpayer, or require
submission of additional information and documents, an audit or further
audit, or other evidence deemed necessary for a proper and equitable
determination of the appeal. The assessment placed at issue in the
appeal shall be deemed prima facie correct. The Commissioner of Revenue
shall undertake a full review of the taxpayer's claims and issue a
written determination to the taxpayer setting forth the facts and
arguments in support of his decision.
C.Â
Notice of right of appeal and procedures. Every assessment made by
the Commissioner of Revenue pursuant to an appealable event shall
include or be accompanied by a written explanation of the taxpayer's
right to file an administrative appeal and the specific procedures
to be followed in the County, the name and address to which the appeal
should be directed, an explanation of the required content of the
appeal, and the deadline for the filing of an appeal.
D.Â
Suspension of collection activity during appeal. Provided a timely and complete administrative appeal is filed, collection activity with respect to the amount in dispute shall be suspended until a final determination is issued by the Commissioner of Revenue, unless the County Treasurer (i) determines that collection would be jeopardized by delay as defined in Subsection A of this section; (ii) is advised by the Commissioner of Revenue that the taxpayer has not responded to a request for relevant information after a reasonable time; or (iii) is advised by the Commissioner of Revenue that the appeal is frivolous as defined in Subsection A of this section. Interest shall accrue in accordance with the provisions of Subsection C of § 88-33, but no further penalty shall be imposed while the collection action is suspended.
E.Â
Procedure in event of nondecision. Any taxpayer whose administrative appeal to the Commissioner of Revenue pursuant to the provisions of this section has been pending for more than one year without the issuance of a final determination may, upon not less than 30 days' written notice to the Commissioner of Revenue, elect to treat the appeal as denied and appeal the assessment to the Tax Commissioner in accordance with the provisions of § 88-38.5. The Tax Commissioner shall not consider an appeal filed pursuant to the provisions of this article if he finds that the absence of a final determination on the part of the Commissioner of Revenue was caused by the willful failure or refusal of the taxpayer to provide information requested and reasonably needed by the Commissioner of Revenue to make his determination.
A.Â
Any person assessed with a local license tax as a result of a determination, upon an administrative appeal to the Commissioner of Revenue pursuant to § 88-38.4, that is adverse to the position asserted by the taxpayer in such appeal may appeal such assessment to the Tax Commissioner within 90 days of the date of the determination by the Commissioner of Revenue. The appeal shall be in such form as the Tax Commissioner may prescribe and the taxpayer shall serve a copy of the appeal upon the Commissioner of Revenue. The Tax Commissioner shall permit the Commissioner of Revenue to participate in the proceedings, and shall issue a determination to the taxpayer within 90 days of receipt of the taxpayer's application, unless the taxpayer and the Commissioner of Revenue are notified that a longer period will be required. The appeal shall proceed in the same manner as an application pursuant to Virginia Code § 58.1-1821, and the Tax Commissioner may issue an order correcting such assessment pursuant to Virginia Code § 58.1-1822.
B.Â
Suspension of collection activity during appeal. On receipt of a notice of intent to file an appeal to the Tax Commissioner pursuant to the provisions of Subsection A of this section, collection activity with respect to the amount in dispute shall be suspended until a final determination is issued by the Tax Commissioner, unless the County Treasurer (i) determines that collection would be jeopardized by delay as defined in Subsection A of § 88-38.3; (ii) is advised by the Commissioner of Revenue, or the Tax Commissioner, that the taxpayer has not responded to a request for relevant information after a reasonable time; or (iii) is advised by the Commissioner of Revenue that the appeal is frivolous as defined in Subsection A of § 88-38.3. Interest shall accrue in accordance with the provisions of Subsection C of § 88-33, but no further penalty shall be imposed while collection action is suspended. The requirement that collection activity be suspended shall cease unless an appeal pursuant to the provisions of Subsection A of this section is filed and served on the necessary parties within 30 days of the service of notice of intent to file such appeal.
C.Â
Implementation of determination of Tax Commissioner. Promptly upon receipt of the final determination of the Tax Commissioner with respect to an appeal pursuant to the provisions of Subsection A of this section, the Commissioner of Revenue shall take those steps necessary to calculate the amount of tax owed by or refund due to the taxpayer consistent with the Tax Commissioner's determination and shall provide that information to the taxpayer and to the County Treasurer in accordance with the provisions of this article.
(1)Â
If the determination of the Tax Commissioner sets forth a specific
amount of tax due, the Commissioner of Revenue shall certify the amount
to the County Treasurer and the County Treasurer shall issue a bill
to the taxpayer for such amount due, together with interest accrued
and penalty, if any is authorized by this article, within 30 days
of the date of the determination of the Tax Commissioner.
(2)Â
If the determination of the Tax Commissioner sets forth a specific
amount of refund due, the Commissioner of Revenue shall certify the
amount to the County Treasurer and the County Treasurer shall issue
a payment to the taxpayer for such amount due together with interest
accrued pursuant to this article, within 30 days of the date of the
determination of the Tax Commissioner.
(3)Â
If the determination of the Tax Commissioner does not forth
a specific amount of tax due, or otherwise requires the Commissioner
of Revenue to undertake a new or revised assessment that will result
in an obligation to pay a tax that has not previously been paid in
full, the Commissioner of Revenue shall promptly commence the steps
necessary to undertake such new or revised assessment, and provide
the same to the taxpayer within 60 days of the date of the determination
of the Tax Commissioner, or within 60 days after receipt from the
taxpayer of any additional information requested or reasonably required
under the determination of the Tax Commissioner, whichever is later.
The Commissioner of Revenue shall certify the new assessment to the
County Treasurer and the County Treasurer shall issue a bill to the
taxpayer for the amount due, together with interest accrued and penalty,
if any as authorized by this article, within 30 days of the date of
the new assessment.
(4)Â
If the determination of the Tax Commissioner does not set forth
a specific amount of refund due, or otherwise requires the Commissioner
of Revenue to undertake a new or revised assessment that will result
in an obligation on the part of the locality to make a refund of taxes
previously paid, the Commissioner of Revenue shall promptly commence
the steps necessary to undertake such new or revised assessment, and
provide the same to the taxpayer within 60 days of the date of the
determination of the Tax Commissioner, or within 60 days after receipt
from the taxpayer of any additional information requested or reasonably
required under the determination of the Tax Commissioner, whichever
is later. The Commissioner of Revenue shall certify the new assessment
to the County Treasurer and the County Treasurer shall issue a refund
to the taxpayer for the amount of tax due, together with interest
accrued, within 30 days of the date of the new assessment.
A.Â
Judicial review. Following the issuance of a final determination of the Tax Commissioner pursuant to Subsection A of § 88-38.4, the taxpayer or Commissioner of Revenue may apply to the Circuit Court in the County for judicial review of the determination, or any part thereof, pursuant to Virginia Code § 58.1-3984. In any such proceeding for judicial review of a determination of the Tax Commissioner, the burden shall be on the party challenging the determination of the Tax Commissioner, or any part thereof, to show that the ruling of the Tax Commissioner is erroneous with respect to the part challenged. Neither the Tax Commissioner nor the Department of Taxation shall be made a party to an application to correct an assessment merely because the Tax Commissioner has ruled on it.
B.Â
Suspension of payment of disputed amount of tax due upon taxpayer's
notice intent to initiate judicial review.
(1)Â
On receipt of a notice of intent to file an application for judicial review, pursuant to Virginia Code § 58.1-3984, of a determination of the Tax Commissioner pursuant to Subsection A of § 88-38.4 and upon payment of the amount of the tax that is not in dispute together with any penalty and interest then due with respect to such undisputed portion of the tax, the County Treasurer shall further suspend collection activity while the court retains jurisdiction unless the court, upon appropriate motion after notice and an opportunity to be heard, determined that (i) the taxpayer's application for judicial review is frivolous, as defined in Subsection A of § 88-38.3; (ii) collection would be jeopardized by delay, as defined in Subsection A of § 88-38.3; or (iii) suspension of collection would cause substantial economic hardship to the County. For purposes of determining whether substantial economic hardship to the County would arise from a suspension of collection activity, the court shall consider the cumulative effect of then-pending appeals filed within the County by different taxpayers that allege common claims or theories of relief.
(2)Â
Upon a determination that the appeal is frivolous, that collection
may be jeopardized by delay, or that suspension of collection would
result in substantial economic hardship to the County, the court may
require the taxpayer to pay the amount in dispute or a portion thereof,
or to provide surety for payment of the amount in dispute in a form
acceptable to the court.
(3)Â
No suspension of collection activity shall be required if the
application for judicial review fails to identify with particularity
the amount in dispute.
(4)Â
The requirement that collection activity be suspended shall
cease unless an application for judicial review pursuant to Virginia
Code § 58.1-3984 is filed and served on the necessary parties
within 30 days of the service of the notice of intent to file such
application.
C.Â
Suspension of payment of disputed amount of refund due upon the County's
notice of intent to initiate judicial review.
(1)Â
Payment of any refund determined to be due pursuant to the determination of the Tax Commissioner of an appeal pursuant to Subsection A of § 88-38.4 shall be suspended if the County serves upon the taxpayer, within 60 days of the date of the determination of the Tax Commissioner, a notice of intent to file an application for judicial review of the Tax Commissioner's determination pursuant to Virginia Code § 58.1-3984 and pays the amount of the refund not in dispute including tax and accrued interest. Payment of such refund shall remain suspended while the court retains jurisdiction unless the court, upon appropriate motion after notice and an opportunity to be heard, determines that the County's application for judicial review is frivolous, as defined in Subsection A of § 88-38.3.
(2)Â
No suspension of refund activity shall be permitted if the County's
application for judicial review fails to identify with particularity
the amount in dispute.
(3)Â
The suspension of the obligation to make a refund shall cease
unless an application for judicial review pursuant to Virginia Code
§ 58.1-3984 is filed and served on the necessary parties
within 30 days of the service of the notice of intent to file such
application.
Any taxpayer or authorized representative of a taxpayer may
request a written ruling regarding the application of a license tax
to a specific situation from the Commissioner of Revenue. Any person
requesting such a ruling must provide all facts relevant to the situation
placed at issue and may present a rationale for the basis of an interpretation
of the law most favorable to the taxpayer. Any misrepresentation or
change in the applicable law or the factual situation as presented
in the ruling request shall invalidate any such ruling issues. A written
ruling may be revoked or amended prospectively if (1) there is a change
in the law, a court decision, or the guidelines issued by the Department
of Taxation upon which the ruling was based or (2) the Commissioner
of Revenue notifies the taxpayer of a change in the policy or interpretation
upon which the ruling was based. However, any person who acts on a
written ruling which later becomes invalid shall be deemed to have
acted in good faith during the period in which such ruling was in
effect.
The Commissioner of Revenue is authorized to perform any audits
in connection with his duty to assess the taxes levied by this article
that, in his discretion, are necessary to enable him to verify the
correctness of the tax paid for the license months or years assessable
and to enable him to ascertain what is the correct amount of tax that
was assessable for each of those months or years.
In the event any provisions of this article or any part, section,
subsection, sentence, definition or phrase thereof should be held
unconstitutional or otherwise void or invalid on any ground, such
provision, part, section, subsection, sentence, or phrase shall be
deemed severable and the remainder of this article shall remain in
full force and effect.
It is the intention of this article to include the uniform ordinance
provisions of § 58.1-3703.1, with the exception of subdivisions
Al and A3 of such section. To the extent that any provision of this
article is in conflict with the provisions of § 58.1-3703.1
or this article fails to recite or contain provisions substantially
similar to those set forth in § 58.1-3703.1 (with the exception
of subdivisions Al and A3 of such section), such provisions of § 58.1-3703.1
are incorporated herein by reference and shall take precedence over
any conflicting provisions in this article.
No provision of this article shall be construed or interpreted
to change or affect, invalidate, or interfere with any agreement regarding
coal, gas, or oil severance license taxes entered into between a taxpayer
and the Commissioner of Revenue or other local assessing official
of the County.
