W. Va. Code R. § 145-7-3 - Definitions

3.1. Affiliate. -- The terms "affiliate" or "affiliates" include all concerns which are affiliates of each other when either directly or indirectly one concern controls or has the power to control the other or a third party or third parties control or have the power to control both. In determining whether concerns are independently owned and operated and whether or not affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

3.2. Capacity Building. -- The term "capacity building" means to generally enhance the capacity of the community to achieve improvements and to obtain the community services described in subsections 3.4.a. through 3.4.e. of these rules. Capacity building includes, but is not limited to, improvement of the means or capacity to:

3.2.1. Access, obtain and use private, charitable and governmental assistance programs, administrative assistance, and private, charitable and governmental resources or funds;

3.2.2. Fulfill legal, bureaucratic and administrative requirements and qualifications for accessing assistance, resources or funds; and

3.2.3. Attract and direct political and community attention to needs of the community for the purpose of increasing access to and use of assistance, resources or funds for a given purpose, goal or need.

3.3. Commissioner or tax commissioner. -- The terms "commissioner" and "tax commissioner" are used interchangeably in these rules and mean the tax commissioner of the State of West Virginia or his or her designee.

3.4. Community Services. -- "Community services" means any of the following services provided at no charge whatsoever:

3.4.1. Any type of health, personal finance, psychological or behavioral, religious, legal, marital, educational or housing counseling and advice to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.4.2. Emergency assistance or medical care to economically disadvantaged citizens or to a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.4.3. The establishment, maintenance or operation of recreational facilities or housing facilities for economically disadvantaged citizens, a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.4.4 Economic development assistance to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens without regard to whether they are located in an economically disadvantaged area, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area; or

3.4.5. Community technical assistance and capacity building to economically disadvantaged citizens, a specifically designated group of economically disadvantaged citizens, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area.

3.5. Compensation. -- The term "compensation" means wages, salaries, commissions and other forms of remuneration paid to employees for personal services.

3.6. Community Based - The project is to be managed locally without national, state, multi-state or international affiliations. The project will benefit local citizens in the immediate geographic area where the project is to operate. The sponsor of the project is a local entity, rather than a statewide national or international organization or an affiliate of a statewide, national or international organization.

3.7. Control. -- The term "control," with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of such corporation which entitles its owners to vote. With respect to a trust, "control" means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of such trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in Section 276(c), other than paragraph (3) of such section, of the United States Internal Revenue Code, as amended.

3.8. Corporation. -- The term "corporation" means any corporation, joint-stock company or association, or any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certification of interest or ownership or by some similar written instrument.

3.9. Crime Prevention. -- "Crime prevention" means any activity which aids in the reduction of crime.

3.10. Designee. -- The term "designee" or "his or her designee," when used in reference to the tax commissioner, means any officer or employee of the Tax Division of the Department of Tax and Revenue duly authorized by the tax commissioner, either directly or indirectly to perform the functions mentioned or described in these rules.

3.11. Development Office. -- The term "Development Office" means the West Virginia Development Office established by W. Va. Code § 5B-1-1 et seq.

3.12. Direct needs program. -- The term "direct needs program" means a program, organization or community endowment that serves persons whose annual income is no more that 125% of the federal poverty level with self reliance and independence from government assistance as its primary objective.

3.13. Director or director of the West Virginia Development Office. -- The term "director" or "director of the West Virginia Development Office" means the executive director of the West Virginia Development Office.

3.14. Economically disadvantaged area. -- The term "economically disadvantaged area " Means any region of the State with a poverty rate greater than the average statewide poverty rate as determined by the US Census Bureau's most recently published data.

3.15. Economically disadvantaged citizen. -- The term "economically disadvantaged citizen" means a natural person who is a domiciliary and resident of this state that had an annual gross personal income not exceeding one hundred twenty-five percent of the federal designated poverty level for personal incomes during the current taxable year or during the immediately preceding taxable year.

3.16. Education. -- The term "education" means scholastic instruction to, or scholarship by, an individual that enables such individual to prepare for better life opportunities. Education does not include courses in physical training, physical conditioning, physical education, sports training, sports camps and similar training or conditioning courses except for physical therapy prescribed by a physician or other person licensed to prescribe courses of medical treatment under West Virginia law.

3.17 Eligible Contribution. -- An eligible contribution consists of cash, publicly traded common or preferred stock representing ownership in a corporation, tangible personal property valued at its fair market value, real property valued at its fair market value or a contribution of in-kind professional services valued at seventy-five percent of fair market value. For purposes of this definition, the value of in-kind professional services will not qualify as an eligible contribution unless the services are: reasonably priced and valued; reasonably necessary services customarily and normally provided by the contributor in the normal course of business to customers, clients or patients other than those encompassed by the project plan; not reimbursable, in whole or in part, from sources other than the tax credit provided under this article; and are services which are not available without cost elsewhere in the community. Common or preferred stock contributions to a project transferee must be sold by the project transferee within one hundred eighty days of its receipt.

3.17.1. Professional services -- The term "professional services" means only those services provided directly by a state licensed physician, dentist, lawyer, certified public accountant, public accountant, architect, registered nurse, licensed practical nurse, dental hygienist, or other health care professional.

3.17.2. Minimum contribution. -- No contribution of cash, stock, property or professional services or any combination thereof contributed in any tax year by any taxpayer having a fair market value of less than five hundred dollars qualifies as an eligible contribution.

3.17.3. Maximum contribution. -- No portion of a contribution of cash, stock, property or professional services or any combination thereof contributed in any tax year by any taxpayer having a fair Emergency Assistance.

3.17.4. Limitations. -- Not more than twenty-five percent of total eligible contributions to a certified project may be in-kind contributions. Not more than twenty-five percent of total eligible contributions made by any taxpayer to a certified project may be in-kind contributions.

3.18. Eligible Taxpayer. -- The term "eligible taxpayer" means a person subject to the taxes imposed by W. Va. Code §§11-21,23 or 24 that makes an eligible contribution to a qualified charitable organization pursuant to the terms of a certified project plan for the purposed of providing neighborhood assistance, community services, or crime prevention, or for the purpose of providing job training or education for individuals not employed by the contributing taxpayer or a person related to the contributing taxpayer. "Eligible taxpayer" also includes an affiliated group of taxpayers if the group elects to file a consolidated corporation or net income tax return and if at least one affiliate in the affiliated group would qualify as an eligible taxpayer as defined in the preceding sentence.

3.19. Emergency Assistance. -- The provision of basic needs including shelter, cloth, food, water, medical attention or supplies, personal safety or funds to obtain these to an individual facing circumstances that prevent him/her from securing these.

3.20. Fair market value. -- The term "fair market value" shall mean:

3.20.1. As it relates to in-kind professional medical services, it shall be the value of the procedure as published in reimbursement guides for medical professionals as published by the West Virginia Public Employees Insurance Agency.

3.20.2. As it relates to in-kind legal, accounting, or architectural services, it shall be the reimbursement rates for attorneys in court-appointed cases in criminal matters as established in W. Va. Code § 29-21-13a.

3.20.3. As it relates to tangible personal property, it shall be the Internal Revenue Service definition of a charitable personal property contribution.

3.20.4. As it relates to real property, with the exception of farms receiving farm use valuation and managed timberland, it shall be the fair market value as determined for property tax purposes. The exception categories shall be valued at the property's current market value.

3.20.5. As it relates to publicly traded common or preferred stock representing ownership in a corporation, it shall be the value of the stock at the average price between the highest and lowest quoted selling prices on the date of transfer to the project transferee.

3.21. Includes and including. -- The terms "includes" and "including," when used in a definition contained in this article, will not be deemed to exclude other things otherwise within the meaning to the term defined.

3.22. Job training. - The term "job training" means instruction for an individual that enables them to acquire vocational skills that will assist them in becoming employable or enable them to seek a higher grade of employment.

3.23. Natural person or individual. -- The term "natural person" and the term "individual" mean a human being. The terms "natural person" and "individual" do not mean and specifically exclude any corporation, limited liability company, partnership, joint venture, trust organization, association, agency, governmental subdivision, syndicate, affiliate or affiliation, group, unit or any entity other than a human being.

3.24. Neighborhood Assistance. - The term "neighborhood assistance" means either:

3.24.1. The furnishing of financial assistance, labor, material or technical advice that aids in the physical or economic improvement of a part or all of an economically disadvantaged area; or

3.24.2. The furnishing of technical advice that promotes higher employment in an economically disadvantaged area.

3.25. Neighborhood organization -- The term "neighborhood organization". means an organization that performs community services, as defined in these rules, and is exempt from income taxation under section 501(c)(3) of the Internal Revenue Code.

3.26. Partnership and partner. -- The term "partnership" includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust, estate, corporation or sole proprietorship. The term "partner" includes a member in a syndicate, group, pod, joint venture or organization.

3.27. Person. -- The term "person" includes any natural person, corporation, limited liability company or partnership.

3.28. Project transferee. -- The term "project transferee" means any neighborhood organization, qualified charitable organization or other organization, entity or person that receives an eligible contribution or part of an eligible contribution from an eligible taxpayer for the purpose of directly or indirectly providing neighborhood assistance, community services, or crime prevention, or for the purpose of providing job training, education or other services or assistance pursuant to a project plan. The project transferee is typically the first entity or person receiving eligible contributions from eligible taxpayers under a project plan. However, in the case of eligible contributions of in-kind services or other eligible contributions or portion thereof made pursuant to a certified project plan directly to indigent, disadvantaged or needy persons, economically disadvantaged citizens, or other persons or organizations under the sponsorship or auspices of any neighborhood organization, qualified charitable organization or other organization, entity or person as a certified project participant, the eligible contributions will be deemed to have been made to the entity, organization or person under whose sponsorship or auspices the eligible contributions are made, and that entity, organization or person is deemed to be the project transferee with relation to those eligible contributions. The project transferee is the entity, organization or person that is liable under this article for payment of the project certification fee to the Development Office. The term project transferee means and includes any deemed project transferee under the provisions of these rules.

3.29. Qualified charitable organization. -- The term "qualified charitable organization" means a neighborhood organization, as defined in section 3.25 of these rules, which is the sponsor of a project that has received certification by the director of the Development Office pursuant to the requirements of these rules. No organization may qualify as a qualified organization under these rules if the organization is not registered with the state as required under the solicitation of charitable funds act.

3.30. Related person. -- The term "related person" or "person related to" a stated taxpayer means:

3.30.1. An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer; or

3.30.2. An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

3.30.3. An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

3.30.4. A member of the same controlled group as the taxpayer.

3.31. State Fiscal Year. - The term "state fiscal year" means a twelve-month period beginning on the first day of July and ending on the thirtieth day of June.

3.32. Taxpayer. -- The term "taxpayer" means any person subject to the taxes imposed by W. Va. Code §§11-21, 23 or 24.

3.33. Technical assistance. -- The term "technical assistance" means assistance in understanding, using and fulfilling the legal, bureaucratic and administrative requirements and qualifications which must be negotiated for the purpose of effectively accessing, obtaining and using private, charitable, not-for-profit or governmental assistance, resources or funds, and maximizing the value thereof. The term "technical assistance" also means assistance provided by any person holding a license under West Virginia law to practice any licensed profession or occupation, whereby such person, in the practice of such profession or occupation, assists economically disadvantaged citizens or the persons in an economically disadvantaged area by:

3.33.1. Providing any type of health, personal finance, psychological or behavioral, religious, legal, marital, educational or housing counseling and advice to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area.

3.33.2. Providing emergency assistance or medical care to economically disadvantaged citizens or to a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.33.3. Establishing, maintaining or operating recreational facilities or housing facilities for economically disadvantaged citizens, a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.33.4. Providing economic development assistance to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens without regard to whether they are located in an economically disadvantaged area, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area; or

3.33.5. Providing community technical assistance and capacity building to economically disadvantaged citizens, a specifically designated group of economically disadvantaged citizens, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area.

Notes

W. Va. Code R. § 145-7-3