OTA Home

1012 Kanawha Blvd. E.
Suite 300
PO Box 2751
Chas., WV 25330-2751
Tel.: (304) 558-1666
Fax: (304) 558-1670

©2004 West Virginia Office of Tax Appeals, all rights reserved.

WHO ARE WE?

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
e-mail: wvota@wvota.gov

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 West Virginia Department of Revenue for administrative support and budgetary purposes only). OTA is comparable to the United States Tax Court, not to the Appellate Division of the Internal Revenue Service. OTA’s independence from the State Tax Commissioner’s Office eliminates the perception of unfairness in the prior process that had the same agency (the State Tax Commissioner’s Office) collecting state tax revenues and administratively adjudicating state tax disputes (through the Commissioner’s former Office of Hearings and Appeals).

OTA is headed by a full-time Chief Administrative Law Judge (“CALJ”), who is appointed (for a six-year term) by the Governor (with the advice and consent of the State Senate), from a list of three qualified nominees submitted by the State Bar. The CALJ is a lawyer having, among other things, certain federal or state tax experience and expertise. OTA has two other full-time administrative law judges, who also are lawyers having certain federal or state tax experience. OTA’s Executive Director is the “office manager” and “clerk of court.” OTA currently is budgeted for six other support staff employees.

OTA’s procedural rules are modeled in part after the United States Tax Court’s procedural rules. All cases are commenced by filing a written petition (for reassessment or for refund) with OTA (without any petition filing fee), and 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 OTA 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, among other things: a mandatory “counsel conference” (involving the parties’ representatives), the arrangements for which must be initiated by the taxpayer; the opportunity for discovery (in appropriate cases) and (if necessary) prehearing motions; usually a prehearing conference involving the administrative law judge; and a relatively formal evidentiary hearing (audio-recorded or, at the parties’ expense, attended by a court reporter), at which hearing, under the statute and procedural rules, the taxpayer usually has the burden of proof . Hearings are normally held in OTA’s own hearing facilities in the capital city of Charleston, but may be held, upon request and in OTA’s discretion, at certain regional sites in the State (Bluefield, Bridgeport, Martinsburg, 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 certain circuit courts (general jurisdiction courts) in the State. Any appeal to circuit court is based exclusively upon the evidentiary (factual) record made before OTA, and no new evidence would be admissible into the record after the appeal to circuit court is filed (with certain rare exceptions). In cases before OTA an individual taxpayer may represent himself or herself, or (by filing a completed power of attorney form) may be represented by anyone else (including an adult relative or friend, a lawyer, certified public accountant, registered public accountant, enrolled agent), as long as the other person does not engage in the unauthorized practice of law (which has been very broadly defined by the West Virginia Supreme Court of Appeals, even in proceedings before an administrative tribunal). 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, argue constitutionality issues, or argue the meaning of an ambiguous statute, regulation, or other document, for these types of procedural steps clearly constitute the practice of law (as defined by the West Virginia Supreme Court of Appeals). 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. A lawyer, including in-house corporate tax counsel, not authorized to practice law in this State must be admitted to practice before OTA for purposes of representing a taxpayer in a particular case, upon following the procedural rules for the same, including payment of the required fee to the West Virginia State Bar and retaining as co-counsel a lawyer who is authorized to practice law in this State.

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.