W. Va. Code R. § 110-21-51

Current through Register Vol. XLI, No. 49, December 6, 2024

Section 110-21-51 - Returns And Liabilities

51.1. General. - On or before the fifteenth (15th) day of the fourth (4th) month following the close of a taxable year, a West Virginia income tax return shall be made and filed by or for:

(1) Every resident individual required to file a federal income tax return for the taxable year, or having West Virginia adjusted gross income for the taxable year, determined under W. Va. Code '11-21-12 and Section 12 of these regulations, in excess of the sum of his West Virginia personal exemptions;

(2) Every resident estate or trust required to file a federal income tax return for the taxable year, or having any West Virginia taxable income for the taxable year as determined under W. Va. Code '11-21-18 and Section 18 of these regulations;

(3) Every nonresident individual having any West Virginia adjusted gross income for the taxable year, determined under W. Va. Code '11-21-32 and Section 32 of these regulations, in excess of the sum of his personal exemptions;

(4) Every nonresident estate or trust having items of income or gain derived from West Virginia sources, determined in accordance with W. Va. Code '11-21-32 and the applicable rules of Section 32 of these regulations as in the case of a nonresident individual, in excess of its West Virginia exemption; and

(5) Every resident or nonresident individual who is entitled to claim and who claims an overpayment of income tax for the taxable year regardless of whether he would not otherwise be required to file a return under this regulation.

51.1.1. A taxpayer who has had West Virginia income tax withheld from his wages, or who has paid estimated tax during the taxable year, but whose West Virginia adjusted gross income for such taxable year does not exceed his exemptions must file a West Virginia income tax return in order to obtain a refund.

51.1.2. Any taxpayer required to file a West Virginia income tax return must file a return even if such return, after modifications, exemptions and credits, shows no tax liability.

51.2. Returns Of Husband And Wife.

51.2.1. Separate Federal Returne. - If a husband or wife files and determines their tax liability on separate federal returns, they must file separate West Virginia income tax returns.

51.2.2. Joint Federal Returns. - If a husband and wife, other than a husband and wife described in Subsection 51.2.3 of this regulation, file and determine their tax liability on a joint federal return, or if neither spouse files a federal return, they may either:

(1) File a joint West Virginia income tax return in which event their tax liabilities shall be joint and several and each is liable for the entire tax on such joint return regardless of whether only one spouse had income, or

(2) File separate West Virginia income tax returns where their tax liabilities shall be separate.

51.2.3. If either the husband or wife is a resident and the other is a nonresident of West Virginia, they shall file separate West Virginia income tax returns without regard to their method of filing for federal income tax purposes, in which event their West Virginia tax liabilities shall be separate. Provided, however, that a West Virginia joint resident return may be filed by such husband and wife where all three (3) of the following requirements are met:

(1) they are otherwise entitled to file a joint return,

(2) each spouse maintained his or her status as a resident or nonresident during the entire taxable year, and

(3) they elect to determine their West Virginia taxable income on a joint return as if both were residents for the entire taxable year.

51.2.3.1. Where the husband and wife qualify under the above requirements and file a joint resident return, their tax liabilities shall be joint and several.

51.3. Returns For Decedents. - In general, the rules set forth in this regulation pertaining to the filing of returns apply to decedents as well as other taxpayers.

51.3.1. The executor or administrator of the estate of a taxpayer who died during the taxable year, or other person charged with the property of a decedent, shall make and file the return of income required in respect of such decedent on the form which would have been appropriate had such taxpayer lived. For a decedent's taxable year which ends with the date of the taxpayer's death, the return shall cover the period during which said taxpayer was alive. For purposes of this Subsection, the term "executor or administrator" means the person who is actually appointed to and qualifies for such office and not a person who is merely in charge of the property of the decedent.

51.3.2. Joint Return After Death. - Where one or both spouses die during the year, a joint West Virginia income tax return may be made if the following conditions are met:

(1) a joint federal return was made for the taxable year;

(2) the taxable year of both decedents or of the decedent and the surviving spouse, as the case may be, began on the same day and ended on different days only because of the death of either or both;

(3) neither taxpayer was reporting for a fractional part of a year as a result of a change in accounting; and

(4) the surviving spouse had not remarried before the end of the taxable year.

51.4. Individuals Under A Disability. - The return required for an individual who is unable to make a return by reason of minority, insanity or other disability shall be made and filed by his guardian, committee, fiduciary or other person charged with the care of his person or property (other than a receiver in possession of only a part of his property), or by his duly authorized agent. In such case, the fiduciary, duly authorized agent, or other person charged with the care of his person or property shall be liable for the tax.

51.5. Estates And Trusts. - The return for an estate or trust shall be made and filed by the fiduciary.

51.6. Joint Fiduciaries. - If two (2) or more fiduciaries are acting jointly, the return may be made by either of them. When the fiduciary is a trustee of two (2) or more trusts, he must make a separate return for each trust, even though such trusts were created by the same grantor for the same beneficiary or beneficiaries.

51.7. Tax A Debt. - Any tax imposed by the West Virginia Personal Income Tax Act, and any additions, interest or penalty thereon, shall, from the time it is due and payable be a personal debt of the person or persons (including fiduciaries of estates or trusts) liable to pay the same, to the State of West Virginia.

51.8. Cross Reference. - For provisions as to information returns by partnerships, employers, and other persons, see Section 58 of these regulations.

W. Va. Code R. § 110-21-51