Method for Claiming Exemptions, Refunds of Tax, Credit Against Other Taxes

9a.1. General. - Any person having a right or claim to an exemption from the consumers sales and service tax or the use tax by reason of any of the foregoing exemptions in Section 9 of these regulations, except those exemptions set forth in Sections 9.2, 9.3, 9.5, 9.6 and 9.7 of these regulations, and who is not utilizing the direct pay permit procedure authorized in Section 9c of these regulations, shall pay to the vendor the consumers sales and service tax and use tax imposed and may exercise or assert such exemption only in accordance with the following Section 9a.2 or Section 9a.3 of these regulations.

9a.2. No refund shall be due and no credit shall be allowed unless the taxpayer or assignee shall have filed a claim for refund or a claim for credit, as appropriate, with the Tax Commissioner in accordance with this Section.

9a.3. Any claim for a refund of consumers sales and service tax or use tax overpayments or a tax credit for consumers sales and service tax or use tax overpayments which is not timely filed or not filed in proper form or in accordance with the requirements of this Section shall not be construed to constitute an obligation of the State of West Virginia for payment. No overpayment of consumers sales and service tax or use tax shall be subject to either W. Va. Code §§11-10-17(d) or 11-10-17(e)(1).

9a.4. Filing Claim for Refund. - Any person who has paid the consumers sales and service tax or the use tax imposed and who may lawfully claim any exemption set forth under Section 9.1 of these regulations which is not enumerated in the foregoing Section 9a.1 of these regulations, may exercise or assert such claim by filing a claim for refund of the consumers sales and service tax or the use tax overpayments on such form and in such manner as the Tax Commissioner may require and in accordance with the requirements of this Section.

9a.5. Filing Claim for Credit. - In lieu of filing a claim for refund of consumers sales and service tax and use tax overpayments, the taxpayer may, at his option and within one year from the date of payment of the tax, file a claim for credit on such form and in such manner as the Tax Commissioner may require and credit the amount of consumers sales and service tax and use tax overpayments against certain payments of other taxes due, so long as such credit is applied in accordance with the requirements in Sections 9a.3.1 through 9a.3.10 of these regulations.

9a.5.1. This procedure may not be utilized unless the purchaser has submitted a properly completed application for credit to the Tax Commissioner.

9a.5.1.1. An application for credit is required each time a purchaser seeks to utilize this procedure.
9a.5.1.2. Any credit may be disallowed as a result of Tax Department audits of the taxpayer's records.

9a.5.2. Method of Applying Credit.

9a.5.2.1. If the taxpayer is a vendor who is subject to consumers sales and service tax on certain purchases, he may credit the amount of consumers sales and service tax and use tax overpayments made against the consumers sales and service tax liability accrued through the use of his direct pay permit and apply any remaining tax liability against his quarterly or monthly remittance of the consumers sales and service tax imposed and otherwise due; or

9a.5.2.2. If the taxpayer is a vendor who is subject to the use tax on certain purchases, he may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Section 9a.3.2.1 of these regulations against the use tax liability accrued through the use of his direct pay permit and apply the remaining tax liability against his monthly remittance of the use tax imposed and otherwise due; or

9a.5.2.3. If the taxpayer is subject to the consumers sales and service tax, he may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Section 9a.3.2.1 and 9a.3.2.2 of these regulations against his quarterly or monthly remittance of the consumers sales and service tax imposed and otherwise due; or

9a.5.2.4. If the taxpayer is subject to the use tax, he may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.3 of these regulations against his quarterly remittance of the use tax imposed and otherwise due; or

9a.5.2.5. If the taxpayer is subject to the business and occupation tax, W. Va. Code §11-13-1 et seq., he may credit the amount of consumers sales and service tax and use tax overpayments after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.4 of these regulations against his quarterly or monthly remittance of the Business and Occupation Tax imposed and otherwise due; or

9a.5.2.6. If the taxpayer is subject to the Annual Tax On Incomes Of Certain Carriers imposed by W. Va. Code §11-12A-1 et seq., he may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.5 of these regulations against his annual or semiannual remittance of the tax imposed under W. Va. Code §11-12A-1 et seq. and otherwise due; or

9a.5.2.7. If the taxpayer is subject to the Severance Tax imposed under W. Va. Code §11-13A-1 et seq., the taxpayer may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.6 of these regulations against the taxpayer's quarterly or monthly remittance of the Severance Tax imposed and otherwise due; or

9a.5.2.8. If the taxpayer is subject to the Telecommunications Tax imposed under W. Va. Code §11-13B-1 et seq., the taxpayer may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.7 of these regulations against the taxpayer's quarterly or monthly remittance of the Telecommunications Tax imposed and otherwise due; or

9a.5.2.9. If the taxpayer is subject to the Corporation Net Income Tax imposed under W. Va. Code §11-24-1 et seq., the taxpayer may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.8 of these regulations against the taxpayer's installment of estimated tax for the Corporation Net Income Tax imposed and otherwise due under W. Va. Code §11-24-17; or

9a.5.2.10. If the taxpayer is subject to the Personal Income Tax imposed under W. Va. Code §11-21-1 et seq., the taxpayer may credit the amount of use tax overpayments remaining after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.9 of these regulations against the taxpayer's installment of estimated tax for the Personal Income Tax imposed and otherwise due under W. Va. Code §11-21-56; or 9a.5.2.11. If the taxpayer is subject to the Business Franchise Tax imposed under W. Va. Code §11-23-1 et seq., the taxpayer may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.10 of these regulations against the taxpayer's annual remittance of the Business Franchise Tax imposed and otherwise due; or

9a.5.2.12. If the taxpayer is required to deduct and withhold personal income tax under W. Va. Code §11-21-1 et seq., the taxpayer may credit the amount of consumers sales and service tax and use tax overpayments remaining after application of the foregoing Sections 9a.3.2.1 through 9a.3.2.11 of these regulations against the taxpayer's monthly remittance of the personal income tax withheld under said W. Va. Code §11-21-1 et seq. and otherwise due.

9a.6. Documents Supporting Claim for Exemption. - Any person asserting or exercising a claim of exemption from the consumers sales and service tax and use tax under the foregoing Sections 9a.2 or 9a.3 of these regulations shall file with the Tax Commissioner an application for exemption and shall file such affidavits, invoices, sales slips, records or documents as the Tax Commissioner may require to prove or verify the taxpayer's right and entitlement to such exemption. The Tax Commissioner may inspect or examine the records, books, papers, documents, affidavits, sales slips and invoices of a taxpayer or any other person to verify the truth and accuracy of any report or return or to ascertain whether the consumers sales and service tax or the use tax has been paid.

9a.6.1. In addition to the powers of the Tax Commissioner set forth in W. Va. Code §11-10-1 et seq., as a further means of obtaining the records, books, papers, documents, affidavits, sales slips or invoices of a taxpayer or any other person and ascertaining the amount of sales and services taxes or use taxes paid or due under W. Va. Code §11-15-1 et seq. or W. Va. Code §11-15A-1 et seq. or under any report, form, document or affidavit required, the Tax Commissioner shall have the power to examine witnesses under oath; and if any witness shall fail or refuse at the request of the Tax Commissioner to grant access to the books, records, papers, documents, affidavits, sales slips or invoices requested by the Tax Commissioner, the Tax Commissioner shall certify the facts and the names to the circuit court of the county having jurisdiction over the party, and such court shall thereupon issue a subpoena duces tecum to such party to appear before the Tax Commissioner, at a place designated within the jurisdiction of such court, on a day fixed.

9a.7. Time Limit for Filing Claim for Refund. - All claims for refund of consumers sales and service tax or use tax overpayments, including applications from vendors for authorizations to apply the amounts of consumers sales and service tax and use tax paid for business purchases against the amounts of such consumers sales and service tax collected from consumers, under Section 9a.2 of these regulations shall be filed within the time limitation for filing claims for refund set forth in W. Va. Code §11-10-14. Any claim for such refund or claim of entitlement to such refund made or asserted after the said time limitation shall be null and void, and if the consumers sales and service tax or use tax overpayment has not otherwise been credited against tax remittances in accordance with this Section, such claims shall be forfeited.

9a.8. Time Limit for Filing Claim for Credit. - Any credit of consumers sales and service tax or use tax overpayments against taxes under Section 9a.3 of these regulations shall be taken within one (1) year after the payment of the tax by the taxpayer to the vendor. Any such credit or claim of entitlement to such credit made or asserted more than one year after the payment of such tax by the taxpayer to the vendor shall be null and void, and such tax overpayments shall be forfeited.

9a.9. Assignment of Right to Refund or Credit. - Any assignment of the right or entitlement to a refund or credit arising under either W. Va. Code §11-15-9b or W. Va. Code §11-15A-3b shall be subject to strict proof. Any assignee claiming a right or entitlement to an assigned refund or credit shall submit to the Tax Commissioner and in the form prescribed or approved by him, an affidavit signed by the assignor and acknowledging the assignment. The assignee shall attest to the assignment and the terms thereof in his signed application for refund or credit. The assignee will be subject to the penalties provided under West Virginia law for perjury for any falsehood set forth in his signed application. The assignee also will be subject to the penalties set forth in W. Va. Code §11-9-1 et seq. Except as provided in Section 9a.8 of these regulations, no payment of a refund arising under this Section shall be made to any person other than the taxpayer or assignee of the taxpayer making the original overpayment of consumers sales and service tax or use tax.