By Olga Goldberg and Leah Robinson

The West Virginia Office of Tax Appeals (OTA) ruled in favor of a rail transportation company subject to use tax on fuel used in West Virginia because the West Virginia State Tax Department (Department) incorrectly applied the credit against use tax for sales tax paid to “another state.” First, the OTA held that there was no statutory basis for the Department’s use of two different formulas to approximate fuel used in West Virginia: one formula to compute use tax, which resulted in a higher use tax liability, and a different formula to compute the credit, which resulted in a lower available credit. Second, the OTA concluded that the credit must include sales tax paid to out-of-state localities to pass the internal consistency test of the federal dormant Commerce Clause. The OTA agreed with the taxpayer that denial of the credit would result in multiple taxation of identically situated taxpayers in a manner that was not fairly apportioned and that unconstitutionally discriminated against interstate commerce. West Virginia Office of Tax Appeals, Redacted Decision, Docket Nos. 12-477 RMFE & 13-273M (Jan. 23, 2015).