Andy Bros. Tire Co., Inc. v. West Virginia State Tax Com'r, 13636
| Decision Date | 15 March 1977 |
| Docket Number | No. 13636,13636 |
| Citation | 233 S.E.2d 134,160 W.Va. 144 |
| Parties | ANDY BROS. TIRE CO., INC. v. WEST VIRGINIA STATE TAX COMMISSIONER. |
| Court | West Virginia Supreme Court |
Wilson, Frame & Rowe, Clark B. Frame and Richard E. Rowe, Morgantown, for appellant.
Chauncey H. Browning, Jr., Atty. Gen., Robert P. Howell, Asst. Atty. Gen., Charleston, for appellee.
Syllabus by the Court
The cost of a completely reconstructed industrial facility is a "qualified investment" within the meaning of W.Va. Code 11-13C, and proper basis for business and occupation tax credit.
This is an appeal from the Circuit Court of Kanawha County which affirmed a State Tax Commissioner ruling denying Andy Bros. Tire Co., Inc. industrial expansion tax credits.
W.Va. Code 11-13C, titled "Business and Occupation Tax Credit for Industrial Expansion", states in its first section:
In order to encourage the location of new industry within this State and in order to encourage the expansion of existing industry within this State and thereby increase employment, there is hereby provided a business and occupation tax credit for industrial expansion.
Section 2 has definitions and Section 3 provides that the amount of credit allowed is ten percent of the cost of qualified investment made for industrial expansion to be applied at the rate of one percent per year for ten years to the taxpayer's business and occupation tax obligation. The act proceeds in Section 4:
(a) The term "qualified investment" means with respect to any taxable year, the aggregate of the applicable percentage of the cost of each property purchased for the purpose of industrial expansion . . ..
(b) The term "property purchased for industrial expansion" means real property and improvements thereto and tangible personal property but only if such property is constructed or purchased for use as a component part of a new or expanded business . . .. The term "property purchased for industrial expansion" does not include replacement property . . . nor property the construction, reconstruction or erection of which has begun . . . prior to the effective date of this article. (Emphasis added.)
Expressio unis est exclusio alterius translates this last phrase to mean that property constructed, reconstructed or erected after the effective date of the article, July 25, 1969, is qualified investment.
The article concludes with a section prescribing when forfeiture of unused credits occurs.
On August 28, 1971, the Andy Bros. tire recapping factory near Morgantown in Monongalia County was totally destroyed by fire. The employees were out of work and the plant site was leveled by bulldozers.
The owners, after careful study, decided to build a new plant on the old site instead of in Pennsylvania, where they had other property, or elsewhere. In October, 1971 construction of the new tire recapping factory was commenced and by March 15, 1972 production was resumed.
The company was assessed $1,765.50 for business and occupation tax and penalties for its operations from July 1 through December 31, 1972. It petitioned the state tax commissioner for reassessment allowing industrial expansion tax credit. Its petition was denied and the Kanawha County Circuit Court affirmed the tax commissioner's ruling that the new factory was...
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