WEST VIRGINIA OFFICE OF TAX APPEALS
1012 Kanawha Blvd., E., Suite # 300
P. O. Box 2751
Charleston, WV 25330-2751
Tel.: (304) 558-1666 Fax: (304) 558-1670
The West Virginia Office of Tax Appeals (“OTA”) began operations on January 01, 2003, pursuant to the provisions of W. Va. Code §§ 11-10A-1 et seq. OTA hears and decides primarily state tax disputes that are not resolved informally before the State Tax Commissioner’s Office. OTA is completely separate from and totally independent of the State Tax Commissioner’s Office, and is a quasi-judicial (court-like) tribunal that is part of the executive branch of state government within the Department of Revenue. OTA is comparable to the United States Tax Court. OTA’s independence from the State Tax Commissioner’s Office eliminates the perception of unfairness that previously existed when the Tax Commissioner’s office would decide disputes between the Tax Department and Taxpayers.
OTA is headed by a full-time Chief Administrative Law Judge (“CALJ”), who is appointed for a four-year term by the Governor. The CALJ is a lawyer possessing certain federal or state tax experience and expertise. OTA has two other full-time administrative law judges, who also are lawyers having similar credentials. OTA’s Executive Director is the “office manager” and “clerk of court.” OTA is budgeted for four other support staff employees.
All OTA cases are commenced by filing a written petition, a sample of which can be found at this website. Pursuant to West Virginia Code Section 11-10A-9, this written petition must be filed within sixty (60) days of receipt of certain actions of the Tax Commissioner, generally notices of assessment or denials of refund requests. It should be noted that OTA handles other types of cases, pursuant to West Virginia Code Section 11-10A-8. The State Tax Commissioner files and serves a written answer in all cases. Cases before OTA are processed either as small claim cases or as regular (non-small claim) cases. Cases eligible for small claim processing and determined by both parties to be treated as such, are handled in a less formal manner, usually upon submission of documents only and without an evidentiary hearing in person. The brief written decision in a small claim case, issued within 90 days after the case is fully submitted, is not subject to any further administrative or judicial review.
“Regular (non-small claim) cases involve the opportunity for discovery in appropriate cases and if necessary, prehearing motions. A prehearing conference is required before the evidentiary hearing, the purpose of which is to identify the witnesses, the exhibits, the anticipated time for the hearing, the possibility of settlement and any stipulations that the parties may have agreed upon prior to the hearing. The evidentiary hearing is recorded and, at the parties expense, a transcript is generated. The governing statute and procedural rules state that the taxpayer, subject to very limited exceptions, maintains the burden of proof.” Hearings are normally held in OTA’s own hearing facilities in the capital city of Charleston, West Virginia, but may be held, upon request and in OTA’s discretion, at certain regional sites in the State (Bluefield, Bridgeport, Martinsburg, and Wheeling), perhaps by videoconferencing. The written decisions in regular cases, issued within 6 months after the matter is fully submitted, may be appealed by the aggrieved party, either the taxpayer or the State Tax Commissioner, to circuit court. Any appeal to circuit court is based exclusively upon the record made before OTA, and, aside from certain rare exceptions, no new evidence would be admissible into the record after the appeal to circuit court is filed. In cases before OTA, an individual taxpayer may represent himself or herself. An individual may also be represented by someone else, for example by an adult relative or friend, a lawyer, certified public accountant, registered public accountant, enrolled agent, as long as the person filing the appeal fills out a power of attorney form, giving OTA permission to talk about their case with the other person. However, pursuant to West Virginia Code Section 11-10A-15, this other person cannot engage in the unauthorized practice of law. Therefore, in regular (non- small claim cases) another person representing a taxpayer who is not authorized to practice law in this State may not, for example, conduct direct-examination of a witness or file legal briefs. Similarly, a corporate taxpayer must be represented by a lawyer authorized to practice law in this State if legal (not factual or accounting) issues are involved.
All proceedings (even small claim cases) before OTA are quasi-judicial (court-like) in nature and, therefore, like all “litigation,” involve some processing times, a degree of formality, and potential litigation expenses (such as a party’s own lawyer’s or accountant’s fees). Accordingly, OTA strives to be “user friendly” in various ways, such as by explicitly encouraging the parties at all times to resolve the matter informally outside the administrative litigation process.