dissenting:
I dissent to the majority opinion because for some reason they take a simple set of facts and reach an illogical, albeit creative, conclusion which is contrary to both the State Constitution and our State statutes relating to industrial expansion tax credit. The majority opinion affirms the circuit court’s verdict allowing the plaintiff taxpayer a full year expansion tax credit against the taxpayer’s business and occupation liability for that part of the fiscal year it was actually doing business, even though the plaintiff sold the business before the end of the tax year. In reaching their decision, the majority relies on what it perceives to be the intent of the legislature as the rationale for its result. However, it was not necessary to guess the legislature’s intent, since the statutory purpose is plainly set forth in the Code sections dealing with industrial expansion credits.
Article X, § 1 of the West Virginia Constitution provides that all taxation shall be equal and uniform. Taxes are assessed during a designated period of time in which the taxpayer is receiving monies for the endeavor he is undertaking. When that business ceases, the taxpayer files a tax return for the period dating from the last tax return and the date the taxpayer ceased business. In this case, the taxpayer transferred the ownership of his business to a successor, yet sought to take a full year’s industrial expansion credit pursuant to W.Va.Code § 11-13C-5 against his business and occupation liability for that part of the year he actually engaged in business. The defendant State Tax Commissioner argued the W.Va.Code required the tax credit to be prorated against the business and occupation tax for the period during which the plaintiff actually did business during the tax year. Instead, the majority found that not only did the legislative intent not allow proration, but it prevented the purchaser from receiving any of the remaining industrial credit for one year after the transfer of the business.
The majority’s reliance on these theories is incorrect. The business and occupation *126tax is based on business done in any one quarter of a tax year and a final return at the end of the tax year. In enacting W.Va. Code § 11-13C-5, the legislature clearly gave no thought to potential windfalls, given the knowledge that taxes are paid as the work is performed and do not carry over to a period after the business has ceased. The legislature most certainly expected the tax credit to be prorated.
The majority claims W.Va.Code § 11-13C-5 (1978) was silent as to pro-ration. I disagree. The legislative intent for proration of the tax credit is evidenced by the two sections of the Code dealing with the tax credit — W.Va.Code §§ 11-13C-3 and 11-13C-5. West Virginia Code § 11-13C-3 provides that the expansion tax credit shall be applied over a ten-year period to reduce the business and occupation tax owed, not to exceed 50% of said business and occupation tax in any one tax year. West Virginia Code § 11-13C-5 states that if, during any year in which the tax credit is allowed, the business ceases to be used as a qualified business, the unused portion of such credit shall be forfeited for the taxable year in which such event occurs and for all ensuing taxable years. Further, it also provides that the successor purchaser continuing the qualified business may use the remaining tax credit. How can the legislative intent to prorate the tax credit be more explicit than the language found in W.Va.Code § 11-13C-5 — “the unused portion of such tax credit shall be forfeited for the taxable year”?
If the purchaser (successor) retains the new employees, under the majority opinion he gets not a “windfall”, but a “short fall” because he must wait a full year to use the remaining tax credit, while the seller may have used up a portion of the credit without even having the expense of the payroll of the new workers after he ceased doing business, while getting a full year’s tax credit if he can meet the requirements. Why was it necessary to confuse a plain legislative enactment?