NH General Court RSA Ch 72-B - Excavation Tax

NH General Court RSA Ch 72-B - Excavation Tax

TITLE V TAXATION - CHAPTER 72-B - EXCAVATION TAX

72-B:1 Excavation Tax and Taxation of Excavation Area. –

    I. Earth, as defined in RSA 155-E:1, I, shall be exempt from taxation as real property under RSA 72:6 and RSA 72:13. An excavation tax shall be assessed upon the excavation of earth against an owner as defined in RSA 72-B:2, VIII. Such tax shall be assessed at the rate of $.02 per cubic yard of earth excavated. The following are exempt from the excavation tax:

       (a) Any excavation of earth from a parcel of land that is put back on the parcel, or other parcel that is contiguous and in common ownership, in the construction, reclamation, reconstruction, or alteration of such parcel of land within the same tax year.

       (b) Any excavation of earth that is used exclusively for agricultural or forest management by the owner of the land within the state of New Hampshire.

       (c) Any excavation upon a parcel of land which does not exceed 1,000 cubic yards within any tax year; however, the owner of such excavation shall be required to file a notice of intent to excavate pursuant to RSA 72-B:8, but such owner shall not be subject to the enforcement fee under RSA 72-B:16 and such parcel shall not be subject to the excavation tax lien under RSA 72-B:7, I.

       (d) Any excavation which is solely necessary to construct a foundation, septic disposal system, or which is incidental to other construction projects and does not result in the removal from the parcel of more than 1,000 cubic yards of earth within the tax year.

       (e) Excavation by the federal government, state government, cities, towns, school districts, and other political subdivisions which remove earth for their own use, on lands under their ownership and within their own jurisdiction.

    II. Excavations, as defined in RSA 155-E:1, II, and excavation areas as defined in RSA 155-E:1, VI, shall be taxed as real property pursuant to RSA 72:6 independent of any earth contained therein. The following shall not be considered to be included within the excavation area:

       (a) An excavation that has been reclaimed in accordance with RSA 155-E.

       (b) An excavation area that is exposed rock ledge not subject to reclamation under RSA 155-E:5, I and III or RSA 155-E:5-a and has not been excavated during the preceding tax year, provided that exposed rock ledge that is the subject of intents or modifications thereof filed pursuant to RSA 72-B:8 during the preceding tax year and exposed rock ledge that is the subject of a permit granted pursuant to the provisions of RSA 155-E shall be included within the excavation area.

       (c) An excavation that has ceased commercially useful operation prior to August 24, 1977, as set forth in RSA 155-E:2, II(c).

       (d) Areas that are ancillary to the excavation.

    III. The owner shall furnish to the assessing officials for the jurisdiction in which the excavation is located such information as the assessing officials may require to determine the area constituting a taxable excavation including, if requested, any material differences between excavation activity and excavation intents filed the previous tax year.

Source. 1997, 219:2. 1999, 301:2. 2001, 211:1. 2002, 103:3, eff. April 1, 2002 at 12:01 a.m.

Section 72-B:2

    72-B:2 Definitions. – In this chapter:

    I. "Ancillary to the excavation'' means areas related to the excavation, including, but not limited to, offices; scale buildings; manufacturing plants; preparation plants; together with storage areas; settling ponds; haulage ways; and roadways.

    II. "Assessing officials'' means those charged by law with the duty of assessing taxes in the city, town, or unincorporated place.

    III. "Commissioner'' means the commissioner of the department of revenue administration.

    IV. "Department'' means the department of revenue administration.

    V. "Earth'' means earth as defined in RSA 155-E:1, I.

    VI. "Excavating'' means extracting earth from its state of natural repose.

    VII. "Excavation'' means excavation as defined in RSA 155-E:1, II.

    VII-a. "Excavation area'' means excavation area as defined in RSA 155-E:1, VI.

    VIII. "Owner'' means:

       (a) Any person who owns the land upon which earth is excavated;

       (b) A previous owner who retains earth excavation rights to the land, or any person who has purchased earth excavation rights, and has registered a claim with the registry of deeds; or

       (c) Any person who has purchased excavated earth or excavation rights on public lands, or removes earth from a public right-of-way.

    IX. "Reclaimed'' means the reclamation of the excavated area, unless alternate plans for other uses or reclamation are approved by the regulator.

    X. "Regulator'' means regulator as defined in RSA 155-E:1, III.

    XI. "Tax year'' means April 1 of any year to March 31 of the next year, inclusive.

Source. 1997, 219:2. 1999, 301:3. 2002, 103:5, eff. April 1, 2002 at 12:01 a.m

Section 72-B:3

    72-B:3 Release From Taxes. – [Repealed 1999, 301:19, eff. April 1, 1999.]

Section 72-B:4

    72-B:4 Assessment of the Excavation Tax. –

    I. The excavation tax shall be assessed by the local assessing officials within 30 days after receipt of a report of excavated material form by such officials in the municipality in which the excavation took place. Interest as provided in RSA 72-B:6 shall be charged 30 days after the bills are mailed by the tax collector, on any tax which is due and payable and which remains unpaid.

    II. [Repealed].

Source. 1997, 219:2. 1999, 301:4. 2001, 211:2. 2002, 103:6, 12, I, eff. April 1, 2002 at 12:01 a.m.

Section 72-B:5

    72-B:5 Bond. –

    I. If an owner does not own land in the town where such owner intends to excavate and has filed an intent to excavate form with respect to any parcel of land, the assessing officials shall, within 30 days of the receipt of that filing, notify the owner in writing of the amount and conditions of any bond or other security deemed necessary to secure the payment of the excavation tax to be due from the excavation described in the notice of intent to excavate. The owner shall provide the bond within 30 days of notice or be guilty of a misdemeanor. No owner who owns land in the town where the owner intends to excavate shall be required to post a bond or other security as a condition for filing an intent to excavate or receiving a permit to excavate, unless the owner is delinquent on town timber taxes or property taxes.

    II. [Repealed].

    III. If an owner ceases to own land in the town where such owner is excavating after filing an intent to excavate form, such owner shall notify the assessing officials and the department in writing of the change in ownership within 15 days of such change. An owner who neglects to so notify the assessing official or the department shall be guilty of a misdemeanor.

    IV. If any person commences excavating or continues excavating without first furnishing a bond or other securities required to secure payment of taxes by the assessing officials, such person and the owner of such land shall each be guilty of a misdemeanor.

Source. 1997, 219:2. 1999, 301:5. 2001, 211:3, 4. 2002, 103:10, 12, II, eff. April 1, 2002 at 12:01 a.m.

Section 72-B:6

    72-B:6 Unpaid Taxes. – The taxes which are not paid when due pursuant to RSA 72-B:4 shall bear interest at the rate of 18 percent per year computed from the due date. Interest and penalties on the tax shall be collected by the tax collector and deposited in the general fund of the municipality. In addition to the interest due, a penalty for failure to pay may be assessed against the owner as provided in RSA 21-J:33.

Source. 1997, 219:2, eff. Jan. 1, 1998.

Section 72-B:7

    72-B:7 Lien. – Unless a bond or other security is required pursuant to RSA 72-B:5, excavation tax assessments levied under RSA 72-B:4 shall, on the date the excavating commences, create a lien upon the land on account of which it is made and against the owner of record of such land and shall continue for a period of 18 months following the date of assessment by the local assessing officials. All excavation tax assessments shall be subject to statutory collection proceedings against real estate as prescribed by RSA 80.

Source. 1997, 219:2. 1999, 301:6. 2002, 103:7, eff. April 1, 2002 at 12:01 a.m.

Section 72-B:8

    72-B:8 Notice of Intent to Excavate. – Every owner, as defined in RSA 72-B:2, VIII, who intends to excavate earth shall, at the beginning of each tax year and prior to excavating, file with the proper assessing officials in the city, town, or unincorporated place where such excavating is to take place a notice of intent to excavate as provided by the commissioner, stating the owner's name; type of ownership; residence; telephone number; tax map, block, and lot number; the town, city, or unincorporated place where the excavating will take place; an estimate of the volume of earth to be excavated; an estimate of the type of earth to be excavated; and such other information as may be necessary to locate, identify, verify, and determine the full extent of the excavation and extent of compliance with RSA 155-E and RSA 485-A:17. A separate intent shall be filed for each separate tract of land as identified by the municipal tax maps. If the excavation is located in
more than one municipality, a separate intent to excavate shall be filed with each municipality. A supplemental notice of intent to excavate shall be filed in the same manner stating any additional volume of earth to be excavated in excess of the original estimate within the same tax year. The assessing officials shall, within 30 days of signing a notice of intent to excavate, notify the tax collector that an intent to excavate has been filed. The assessing officials may decline to sign an intent to excavate for noncompliance by the owner with applicable requirements of RSA 72-B:5 relative to bonding, RSA 155-E relative to local regulation excavations, RSA 485-A:17 relative to terrain alterations or RSA 79-A, relative to current use. The notice of intent to excavate shall serve as notice that the land is subject to a tax lien pursuant to RSA 72-B:7. The appropriate copies of all intents to excavate received by a city, town, or unincorporated place shall within 30 days be assigned
a number in accordance with the guidelines provided by the commissioner, then forwarded to the commissioner by the assessing officials. Upon receipt of an original intent to excavate, the commissioner shall furnish to the owner a certificate to excavate and report of excavated material form. Each certificate shall be posted by the owner filing such intent to excavate in a conspicuous place within the area of excavating. Excavating before the appropriate notice of intent to excavate has been filed with the city, town, or unincorporated place and signed by the appropriate municipal officials shall constitute a violation by the owner or any other person doing the excavation, or both. Failure to post the certificate on the job in a conspicuous place upon receipt shall constitute a violation, and failure of the assessing officials to forward the appropriate copies of the intent to excavate to the department within 30 days after receipt shall constitute a violation.

Source. 1997, 219:2. 1999, 301:7. 2001, 211:5, eff. April 1, 2002.

Section 72-B:9

    72-B:9 Report of Excavated Material. – Every owner who has filed a notice of intent to excavate as provided in RSA 72-B:8 shall sign under the penalties of perjury and file with the assessing officials a report of all excavated material for each intent to excavate filed. The report shall be upon a form provided by the commissioner, with 2 copies to be sent to the commissioner. If no earth was excavated during the tax year, then the report of excavated material shall be returned stating so. If excavating is completed during the tax year, the owner shall file the report of excavated material no later than 30 days following the completion of the excavating. The assessing officials shall make an assessment of the excavation tax within 30 days after receipt of the report of excavated material form. The report of excavated material form shall contain the owner's name, telephone number, residence, tax map, block, and lot number, the town, city, or unincorporated
place where the excavation occurred, the volume and type of earth in cubic yards, and such other information as may be necessary to locate, identify, verify, and determine the full extent of excavation, reclamation, and extent of compliance with either RSA 155-E or RSA 485-A:17, for which each report is filed. The report of excavated material form pertaining to excavating still in progress through March 31 of any year shall be filed no later than the following April 15 for all earth excavated during the tax year up to and including March 31. The report shall be accompanied by an estimate of the size of the excavation area as it existed at the end of the tax year, or in the alternative, a statement that the size of the excavation area has not changed since the prior tax year. A person who fails to file a report of excavated material with the proper assessing officials or to send copies of the report as required in this section to the commissioner shall be guilty of a misdemeanor.
Any owner who falsifies a report of excavated material form shall be guilty of a misdemeanor.

Source. 1997, 219:2. 1999, 301:9, eff. April 1, 1999.

Section 72-B:10

    72-B:10 Doomage. – If an owner neglects or fails to file a report of excavated material form pursuant to RSA 72-B:9, unless the time is extended by the assessing officials because of accident, mistake, or misfortune to a date not later than the following May 1, or willfully makes any false statement in the notice of intent to excavate, or willfully files a report of excavated material that does not contain a true and correct statement of the amount of earth excavated, or has willfully omitted to give any information required by the report of excavated material form, the assessing officials shall ascertain, in such way as they may be able and as nearly as practicable, the volume of earth for which such owner should have been taxed and shall assess to such owner, by way of doomage 2 times as much as such earth would have been taxed had such form been seasonably filed and truly reported. Such doomage shall be collected by the tax collector in the usual manner
and paid over to the town or city treasurer for use of the town or city, or, in the case of an unincorporated place, shall be collected by the county commissioners and paid over to the county treasurer for use of the county.

Source. 1997, 219:2. 1999, 301:10, eff. April 1, 1999.

Section 72-B:11

    72-B:11 Disposition of the Excavation Tax. –

    I. The excavation tax collected in the incorporated towns and cities under RSA 72-B:4 shall be paid by the tax collectors into their respective treasuries for the general use of the city or town.

    II. The taxes assessed under RSA 72-B:4 in any unincorporated place shall be collected by the county commissioners of the county in which the place is located and paid by them to the county treasurer. The county commissioners shall have the same powers in collecting the taxes as provided under RSA 80 and RSA 81. All taxes collected by the counties under RSA 72-B:4 shall be credited to the unincorporated place from which the excavation tax was collected and shall be used against the unincorporated place's share for the county tax for the ensuing year.

Source. 1997, 219:2. 1999, 301:11. 2002, 103:8, eff. April 1, 2002 at 12:01 a.m.

Section 72-B:12

    72-B:12 Taxation of Excavation Activity. – [Repealed 2002, 103:12, III, eff. April 1, 2002 at 12:01 a.m.]

Section 72-B:13

    72-B:13 Excavation Tax Appeal and Abatement. – An owner may, within 90 days of notice of the excavation tax, appeal to the assessing officials in writing for an abatement from the original assessment, but no owner shall be entitled to an abatement unless such owner has complied with the provisions of RSA 72-B:8, RSA 72-B:8-a and RSA 72-B:9. If the assessing officials neglect or refuse to abate, an owner may, at the owner's election within 6 months of notice of such tax and not afterwards, petition the superior court of the county where the operation took place, or the board of tax and land appeals. A petition to the board of tax and land appeals shall be accompanied with a $65 filing fee.

Source. 1997, 219:2. 1999, 301:14. 2001, 211:6, eff. April 1, 2002.

Section 72-B:14

    72-B:14 Excavation Tax Appeals Board. – [Repealed 2001, 211:7, I, eff. April 1, 2001.]

Section 72-B:15

    72-B:15 Excavation Tax Appeals Board Procedure. – [Repealed 2001, 211:7, II, eff. April 1, 2002.]

Section 72-B:16

    72-B:16 Administration and Enforcement Fee. – There shall be an administration and enforcement fee of $100 for each original notice of intent to excavate filed with the department. Such fee shall accompany the original intent to excavate and shall be deposited into a revolving fund within the department to be used by the department for the administration and enforcement of this chapter and for the education of municipal officials regarding the chapter. It also may be used to educate state personnel responsible for the administration and enforcement of this chapter.

Source. 1997, 219:2, eff. Jan. 1, 1998.

Section 72-B:17

72-B:17 Enforcement

  I. The department shall administer and enforce this chapter, be responsible for educating municipal officials regarding the chapter, and have enforcement authority in regard to the proper filing of the intent to excavate form under RSA 72-B:8, authority to check on the volumes turned in on the report of excavated material form under RSA 72-B:9, the authority to issue cease and desist orders for violations under RSA 72-B, and the authority to rescind the intent to excavate form and certificate pursuant to RSA 72-B:8 of any excavation in violation of RSA 72-B. The department shall otherwise assist the towns, cities, and unincorporated places in the enforcement of this chapter. It is the intent of this section to authorize the commissioner and the commissioner's agents to have enforcement authority and the right to stop any excavation in violation of RSA 72-B and to report the same to local authorities. Any person failing to comply with a cease and desist order issued under
this section shall be guilty of a misdemeanor.

    II. The commissioner's agents responsible for the enforcement of this chapter have the authority to advise and assist municipalities in regard to RSA 155-E and RSA 485-A:17, may report potential violations of RSA 155-E and RSA 485-A:17 to local and state officials, and may enter upon any lands for which an intent to excavate or a certificate to operate has been issued pursuant to RSA 72-B. The commissioner's agents may enter upon any lands that they believe may have an excavation in violation of RSA 72-B for the purpose of collecting information that may be necessary to the purpose of this chapter, and no owner of such land shall refuse to admit the enforcement agents. The commissioner's agents may review any records in conjunction with any excavation in the state.

Source. 1997, 219:2. 1999, 301:17, eff. April 1, 1999.

Section 72-B:18

72-B:18 Rulemaking

The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:

    I. The form of a notice of intent to excavate, pursuant to RSA 72-B:8.

    II. The form of the report of excavated materials which is filed with assessing officials, pursuant to RSA 72-B:9.

    III. Other matters relating to the administration of this chapter.

Source. 1997, 219:2, eff. Jan. 1, 1998.