13C, prescribe two methodologies for determining the number of new jobs attributable to qualified investment for purposes of the West Virginia business investment and jobs expansion tax credit. The first methodology prescribes the calculation of new jobs attributable to qualified investment placed in service or use after March

9, 1990, and the second methodology prescribes calculation of new jobs attributable to qualified investment placed in service or use prior to March

10, 1990. The regulations are silent with regard to those circumstances where new jobs are attributable to qualified investment placed into service or use both prior to March

10, 1990 and subsequent to March

9, 1990. The pertinent regulations read as follows: 7.6.3 Calculation of new jobs attributable to qualified investment placed in service or use after March

9, 1990. 7.6.3.1 The taxpayer shall determine the number of new jobs in place in the third taxable year or, for small businesses, any taxable year, attributable to qualified investment by calculating the average number of full-time and equivalent part-time new employees holding new jobs attributable to qualified investment for each month of the third taxable year or, for small business taxpayers, the taxable year, then totalling the monthly averages and dividing that total by twelve (12). 7.6.3.2 The Tax Commissioner may prescribe alternative methods for determining the number of new jobs in place in the third taxable year or, for small businesses, any taxable year, attributable to qualified investment in circumstances where such alternative methods are determined by the Tax Commissioner to be appropriate for ascertaining an accurate and realistic determination of new jobs attributable to qualified investment. 7.6.4 Calculation of new jobs attributable to qualified investment placed in service or use prior to March

10, 1990. 7.6.4.1 The number of new jobs in place in the third taxable year attributable to qualified investment shall be determined as the average of the number of full-time and equivalent part-time new employees holding new jobs attributable to qualified investment employed by the taxpayer on the first day of the third taxable year and the last day of the third taxable year. 7.6.4.2 At the taxpayer's election the taxpayer may determine the number of new jobs in place in the third taxable year or, for small businesses, any taxable year, attributable to qualified investment by calculating the average number of full-time and equivalent part-time new employees holding new jobs attributable to qualified investment for each month of the third taxable year or for small business taxpayers, the taxable year, then totalling the monthly averages and dividing that total by twelve (12): Provided, That use of this section is mandatory for small business taxpayers, and is not subject to election. 7.6.4.3 The Tax Commissioner may prescribe alternative methods for determining the number of new jobs in place in the third taxable year attributable to qualified investment in circumstances where such alternative methods are determined by the Tax Commissioner to be appropriate for ascertaining an accurate and realistic determination of new jobs attributable to qualified investment. The taxpayer letter specifically requests a technical assistance advisory in answer to the following question: For purposes of determining the number of new jobs created under a certified project where qualified investment was placed in service or use both after March

9, 1990 and prior to March

10, 1990 and jobs are attributable to both types of investments, may the taxpayer use the "first day/last day" methodology described in Regulation 7.6.4.1 to determine the number of new jobs attributable to qualified investment placed in service or use prior to March

10, 1990 and the "monthly averaging" methodology described in Regulation 7.6.3.1 for purposes of determining the new jobs attributable to qualified investment placed in service or use after March

9, 1990? The answer to the taxpayer's specific question is "no." The taxpayer may not use two different methodologies in determining the number of new jobs attributable to qualified investment. It is the ruling of this Office that taxpayers who have placed qualified investment into service or use both prior to March

10, 1990 and subsequent to March

9, 1990 in a certified business investment and jobs expansion tax credit project or in a nonproject business investment and jobs expansion tax credit investment period, such taxpayers shall be subject to the requirements of Title 110 C.S.R., Series 13C, §

7.6.4. Such taxpayers may use either the methodology prescribed in Section 7.6.4.1 or 7.6.4.2, at the taxpayer's election, subject to the Tax Commissioner's prescription of alternative methods in accordance with Section 7.6.4.3, where appropriate. This technical assistance advisory is based on the laws, regulations and court decisions currently in effect. Any change in such authority may render this ruling null and void upon the effective date of such change. ______________________________ L. Frederick Williams, Jr. Secretary, Tax and RevenueIssued: November 22, 1991