*1 Syl. part. at Pt. In a child.” Id. spent he has so much time
Brandon’s grandmother recog- his
with that she by treating psychiatrist “psy-
nized as the
chological” parent. determining In what require interests of Brandon
the best
regard arrange- to immediate custodial
ments, question whether father parental rights
has abdicated his and re-
sponsibilities must also be examined. upon foregoing, judgment
Based County
of the Circuit Court of Kanawha
reversed and the case is remanded for fur- proceedings opin-
ther consistent with this
ion.
Reversed and remanded.
BROCKWAY GLASS DIVISION, a
GLASSWARE
Corporation CARYL,
Michael E. as State Tax Commis Virginia,
sioner of West Successor Rose, III,
Herschel H. Former State Virginia.
Tax Commissioner of West
No. 18995. Supreme Appeals Roger Gen., Tompkins, Atty. W. John E. Virginia. West Shank, Gen., Charleston, Deputy Atty. Caryl, Michael E. Comm’r.
May 1990. Rogers, Highland, Lisa Stout McNeer & Dissenting Opinion of Justice McMunn, Clarksburg, Brockway Glass July Brotherton Co. McHUGH, Justice: upon This tax case is before this Court appeal by Department an the State Tax (now Department the State of Tax and Revenue) from a final order of the Circuit County, Virginia. Court of Harrison West The case involves the former business and expan- sion, W.Va.Code, 11-13C-5, 11-13C-1 to *2 123 expansion in should repeal 1985.1 credit for industrial be prior to thereof effective prorated daily on a basis between the seller impression one first in this The issue is of of buyer the for the sale the credit is to and and is whether such jurisdiction qualified property. The tax- investment daily on basis between the be hand, that, argues on the other payer, as of of buyer year the for the sale seller and buyer, the the between the seller and seller op- qualified property, as the investment year the entire credit for the is entitled to getting the entire credit posed to the seller sale, buyer of while the is entitled to the Agreeing year of sale. with the for the remaining of the available credit get amount is to the that the seller circuit court subsequent years only. agree We sale, for of we af- entire credit the the firm. W.Va.Code, ll-13C-3(a) [1978],
Under
occupation
amount
and
of
business
this
part of the assessment which
business.
pation
ness
the remainder
its Glassware
erated a
uary
against
claimed industrial
partment disallowed the credit
entire
Hocking
glass
tion of the
full
clusive of
Clarksburg, West
gross
Brockway
The
On
appeal
due before
year,
manufacturing operations throughout
when
appeal
State
amount
and
tax
1976
Harrison
Corp.
interest)
limited to
glass manufacturing
involved the business
credit for industrial
taxpayer
of 1979.2 The State Tax
Tax
Glass
occupation
and restored the
by
Division
sold
through
amount
1979. The
after
Department
calculation of
The latter continued the
business
expansion credit for the
County
its
Company,
Virginia,
for the
taxpayer
operations
fifty percent
(“the taxpayer”), op-
$14,921.59.
May
in controversy
taxpayer
tax assessment
1979 and
ruled
and
taxpayer had
period
issued a busi-
until
Inc., through
credit for the
the Circuit
1979. The
relevant
to Anchor
expansion
and occu-
plant
favor of
sold the
beyond.
May
of Jan-
of
credit.
por-
(ex-
De-
3,
property,
percent
over a
tion
vestment
tenth
long
the taxable
business. Similar
tains a substantial interest therein
whether the seller and
plementing regulations
taxpayer or the successor continues to
mere
in the form of
taxable
[1969],
ensuing
that
tax credits for
for the successor business
as
qualify as an industrial
share the industrial
W.Va.Code, 11-13C-5
disposed
coal
of the industrial
section, property shall not be treated
as the
change
of
ten-year
year. Under
of the cost of
loading
taxpayer
property
of
the amount
and
byof
sale,
taxpayer
such
conducting the
industrial revitalization and
the form of
period
facilities
in which the
years.
reason of mere
where
is
business
forfeits
credit
disposed
expansion
is retained
or the successor re-
of such credit
at the rate of one-
[1969]
are silent
there
explicitly provide
expansion is ten
However,
is to
and
conducting
buyer
of and for all
business,
unused
has been a
and its im-
investment
credit for
in such
and
entitled
change
are to
under
as
por-
per
in-
so
avail-
only to the
amount of the
II
year subsequent to the
credit for each
able
Code, ll-13D-7(b)
Department argues
Tax
of sale. See W.Va.
before
State
us that
and
[1985]
and
W.Va.Code,
ll-13E-6(b)
[1985].
W.VcuCode,ll-13C-3(b)
occupation tax
2. Pursuant
1. The business and
supple-
replaced
and
limited
industrial
its
against
by
vari-
gross
mented in 1985
ous
various credits
fifty percent of the
amount of
credit to
taxes,
types
of an overhaul
state
due
calcula-
before
business
See,
system.
e.g.,
current arti-
the state
tion of
credit.
13D,
chapter
cles
13E and 13C
W.Va.Code.
See also
11-13C-9(b)
tenth
per year.
While
proration
is not
sale,
(same
in the context of a
for business investment and
it is the
rule
period
over a
of time
taxes,
mentioned
jobs expansion
various
in the industrial
credit statute.
tax).
including
*3
Therefore,
gener-
because the statute calls
approach
taxpayer gets
This
the full
—a
ally
credit,
proration
for an annual
of the
credit for the
sale and the succes
mentioning
daily proration
without
in a
gets
sor
amount of the avail
given year, we believe the State Tax De-
subsequent year
able credit for each
—en
partment’s interpretation in this case re-
courages
stay
the successor to
in business
quiring daily proration
between the seller
during
year subsequent
at least the
to the
buyer
year
and the
pre-
for the
of sale is
year
any
of sale to
entitled to
of the
by
cluded
statutory
the rule of
construction
hand,
credit.
the other
On
State Tax
expressio
as
known
unius est exclusio al-
Department’s approach proration of the
—
(the expression
thing implies
terius
of one
credit for the
of sale
between
things
the exclusion of other
not ex
(successor)
(taxpayer)
buyer
seller
and the
See,
pressed).
J.A.,
e.g., Dotts v. Taressa
encourage
stay
—does not
the successor to
586, 591,
568,
182 W.Va.
390 S.E.2d
573
in
business the next
to obtain
of
(1990); Concerned Loved Ones & Lot
purpose
Consequently,
the credit.
of
Pence,
Owners Association v.
181 W.Va.
statute,
expansion
the industrial
stat
649, 653,
831,
(1989);
383 S.E.2d
835
Com
W.Va.Code,
[1969], specifi
ed in
Roark,
Legal
mittee on
Ethics v.
181
cally, encouraging the location of new in
260, 263,
313,
(1989);
W.Va.
382 S.E.2d
316
dustry
expansion
existing
and the
of
indus
Superior
Co.,
McGlone v.
Trucking
178
state,
try
thereby increasing
within this
663,
659,
736,
(1987);
W.Va.
363 S.E.2d
740
employment,
promoted
longer peri
for a
3,
syl. pt.
Dunfee,
Manchin v.
174 W.Va.
by
nonproration approach
od of time
532,
(1984);
327
710
Douglass
S.E.2d
v.
urged by
taxpayer.
Koontz,
345, 361,
319,
137 W.Va.
71 S.E.2d
(1952) (business
involving
precise
not
in 328
While
issue
case).3
case,
opinion
in
volved this
of the Court
in Andy Bros. Tire
Virginia
Co. West
Andy Bros. Tire concludes that the in-
Commissioner,
State Tax
160 W.Va.
expansion
dustrial
the busi-
(1977),
pation
expansion,
construed
favor of the
160
Code,
specifically,
11-13C-3(a)
W.Va.
W.Va. at
125 Rose, BROTHERTON, dissenting: Justice Corp. v. Supply (1988). That case a use involved S.E.2d 101 opinion to dissent because purchases exemption for used in a re- simple they for some reason take a set of exemption did not tail sales business. creative, illogical, facts and reach an albeit in a apply purchases used wholesale contrary conclusion which is to both the The statute was sales business. silent State Constitution and our State statutes taxpayer, like the whether relating to industrial tax credit. engaged both retail and who majority opinion affirms the circuit required sales businesses wholesale allowing plaintiff court’s verdict tax- exemption, apportion the use tax based a full upon payer of total percentage sales attribut- *4 syllabus able retail transactions. In to taxpayer’s the business and occu- point 6 ment statute is statutory construction however, a “windfall” to the seller legislation vestment statute is authority for sale. In amount addition, was W.Va. this Court a tax property involved, required. Syl. construed of business and liberally construing favor pt. legislature held that such apportion- ll-13C-3(b) 5. In the for the “short” and of the We not a tax strictly against Andy that an occupation has present Bros. exemption, the rule of exemption prevented tax credit Tire is limits case, tax the in- though pation liability fore the their was perceives to be the intent of the plainly set ing as the rationale for its result. ture’s stitution Article not decision, majority it was intent, the end provides X, necessary forth plaintiff § actually of the tax since the the 1 of the West for that in the that all to sold the business be- doing statutory purpose Code year. guess part taxation shall relies on sections Virginia of the fiscal credits. In However, legislature reaching what legisla- deal- even Con- is it fifty per- credit to equal for industrial and uniform. Taxes are assessed occupation cent of and tax due the business during designated period a of time which in the of such and before absence taxpayer receiving monies for is exemption. application of the annual The undertaking. he When endeavor that and due amount of business tax ceases, taxpayer files a business tax automatically would lower dating period from the last return than for a “short” of sale full taxpayer return date the and the this Application of limitation business. ceased business. In this being this in the not case resulted ownership of his transferred the business full allowed to utilize the amount of successor, sought yet to take full sale. the “short” pursuant year’s industrial above, For reasons stated this Court against his 11-13C-5 busi- to W.Va.Code § holds under that liability and for that ness qualified in- taxpayer who sells engaged in actually busi- of the he is entitled to the former vestment The Tax Commis- ness. defendant State in- and credit for business required argued sioner the W.Va.Code sale, and dustrial against the busi- tax credit to be operate continues to the successor who period dur- only remaining to the business is entitled actually did business ing plaintiff which credit for each the available amount of Instead, majority during year. the tax year subsequent to the sale. legislative in- did the found not order the final of the Cir- Accordingly, prevented proration, but it tent not allow County is cuit Harrison affirmed. receiving any of the purchaser from Affirmed. for one industrial credit the business. after the transfer of BROTHERTON, J., dissents and on these theories majority’s The reliance right dissenting file a reserves the and incorrect. The opinion. one done on business
tax is based 394 S.E.2d final return at year and a of a tax quarter enacting Leonard CARTER In year. end of the 11-13C-5, legislature clearly Code § v. windfalls, giv- potential gave thought to no paid as the knowledge that taxes are en the SPIELER, Emily Compensa Workers’ carry do not over performed and work is tion Commissioner. has ceased. period after certainly expected the legislature most prorated. to be tax credit F. ADKINS and Arnold Griffith Willie W.Va.Code claims (1978) pro- silent as to § legislative intent disagree. The ration. SPIELER, Compensa Emily Workers’ is evidenced tion Commissioner. dealing sections of the Code by the two 11- tax credit—W.Va.Code with the §§ Nos. Virginia Code 11-13C-5. West 13C-3 *5 expansion tax that the provides § Supreme Appeals Court ten-year peri- over credit shall Virginia. West the business od to reduce owed, of said busi- not to exceed 50% June one tax occupation tax Virginia Code year. West § if, during any year which
states that allowed, ceases to business, the unused
be used as forfeited for of such credit shall be
portion event occurs year in which such
the taxable Further, ensuing years. for all purchas- the successor provides also may continuing
er remaining tax credit. How can
use the
legislative prorate intent to the tax language found explicit more than the por- unused 11-13C-5—“the
W.Va.Code § credit shall be forfeited of such tax
tion year”?
for the taxable (successor) retains the purchaser
If the opinion employees, under the
new “windfall”, a “short fall” gets
he not a but a full to use the he must wait
because may while the seller up portion of the credit with-
have used expense payroll having the
out even doing after he ceased
of the new workers year’s tax getting a full while requirements. can meet the
credit if he plain necessary to confuse
Why was it
legislative enactment?