Current through Register Vol. XLI, No. 38, September 20, 2024
126.1. Food sold by
public or private schools, school sponsored student organizations, or school
sponsored parent-teacher associations to students enrolled in such school or to
employees of such school during normal school hours is exempt from the
consumers sales and service tax and the use tax. However, sales of food to the
general public during normal school hours are taxable.
126.1.1. Organizations which may make such
exempt sales are as follows:
126.1.1.1. A
public, private, parochial or denominational school which is subject to
regulation by the West Virginia State Board of Education;
126.1.1.2. An organization which is sponsored
by a public, private, parochial or denominational school which is subject to
regulation by the West Virginia State Board of Education; or
126.1.1.3. A parent-teacher association which
is sponsored by a public, private, parochial or denominational school which is
subject to regulation by the West Virginia State Board of Education.
126.1.2. The following sales of
food or food products during other than normal school hours also are exempt.
126.1.2.1. Sales by a school sponsored
student or parent-teacher association, or similar association, at athletic,
cultural or social events when the proceeds of such sales, after payment of
reasonable expenses, are donated to the school or used to purchase tangible
personal property or services which are donated to the school.
126.1.2.2. Sales by a school sponsored
student or parent-teacher association, or similar association, during a fund
raising activity which does not qualify as an athletic, cultural or social
event when the proceeds of such sales, after payment of reasonable expenses,
are donated to the school or used to purchase tangible personal property or
services which are donated to the school.
126.1.3. The following sales of food or food
products are subject to consumers sales and service tax.
126.1.3.1. Sales of food by vending machines
regardless of where the machine is located, who owns the machine or the time of
day when the sale occurs.
126.1.3.2. Sales of food to the general
public during normal school hours.
126.1.4. Only purchases of food sold during
normal school hours as authorized in the foregoing Section 126.1 of these
regulations are exempt from the consumers sales and service tax and use tax.
All other purchases are taxable unless an exemption other than a purchase for
resale is available for use. The exemption may be claimed by issuing a properly
completed exemption certificate to the vendor.
126.2. Food sold by a public or private
college or university or by a student organization officially recognized by
such college or university to students enrolled at such college or university
is exempt from tax when such sales are made on a contract basis so that a fixed
price is paid for consumption of food products for a specific period of time
without respect to the amount of food product actually consumed by the
particular individual contracting for the sale and no money is paid at the time
the food product is served or consumed.
126.2.1. Applications.
126.2.1.1. College Operated Dormitory. - A
public or private college subject to the control of the Board of Trustees of
the University System of West Virginia, the Board of Directors of the State
College System or a similar board for a private college in this State operates
a dormitory providing room and board to its students on a semester-by-semester
basis. An itemization is made for room and for board. The price for board is
determined regardless of the amount of food consumed by the student or the
number of missed meals. The charge made for board is exempt from the consumers
sales and service tax.
126.2.1.2.
Lump Sum Charge for Room and Board. - If a college-operated dormitory makes a
lump sum charge for room and board, the entire amount is exempt from consumers
sales and service tax. Room charges are exempt under Section 9.2.2.0 of these
regulations.
126.2.1.3. Food
Furnished by Caterer. - If the food service is furnished by a caterer and the
contract is between the student and the caterer, the food is not being sold by
the college or the university and the sale of food is subject to consumers
sales and service tax but the charge for the room remains exempt. If the
contract is between the student and the college or university, the charge is
exempt.
126.2.1.4. Dormitory
Operated by Private Person. - If room and board are furnished by a dormitory
not operated by the college or university, the charge made for board is subject
to consumers sales and service tax. The charge made for the room is exempt from
the consumers sales and service tax if the person renting the room continues to
do so for a period in excess of thirty (30) consecutive days.
126.2.1.5. Lump Sum Charge for Room and
Board. - If a dormitory operated by a private person makes a lump sum charge
for room and board, the entire amount is subject to the consumers sales and
service tax.
126.2.1.6.
Fraternities and Sororities. - Sales of food and meals on a "contract basis,"
as defined in Section 2 of these regulations, by student fraternities and
sororities that are officially recognized by the college or university at which
they are located, to a student enrolled at the college or university are
exempt. Food or meals sold to the general public or on any basis other than a
"contract basis," are subject to consumers sales and service tax.
126.2.2. To the extent that an
organization qualifies for exemption for its sales of food under this Section
126.2, its purchases of such food shall also be exempt; however, purchases of
food by a fraternity or sorority shall not be exempt as a purchase for resale.
The exemption may be claimed by issuing a properly completed exemption
certificate to the vendor.
126.3. Food sold by a charitable or private
nonprofit organization, a nonprofit organization or a governmental agency under
a program to provide food to low-income persons at or below cost is exempt from
tax. All of the following conditions must be satisfied in order to establish
the exemption:
126.3.1. The purchaser must be
classified as having low income.
126.3.2. The sale must be made by a
charitable or private nonprofit organization nonprofit organization or
governmental agency.
126.3.3. The
sale must be under a program established to provide food to low-income
persons.
126.3.4. The sale must be
made at or below cost.
126.3.5.
Purchases of food by a charitable or private nonprofit organization, nonprofit
organization or a governmental agency under a program to provide food to
low-income persons at or below cost are exempt when such food is used or
consumed in the program. The exemption may be claimed by issuing a properly
completed exemption certificate to the vendor.
126.4. Food sold in an occasional sale by a
charitable or nonprofit organization, including volunteer fire departments and
rescue squads is exempt from tax, if the purpose of the sale is to obtain
revenue for the functions and activities of the organization and the revenue so
obtained is actually expended for that purpose.
126.4.1. Charitable Organization.
126.4.1.1. "Occasional sales of food," as
defined in Section 2 of these regulations, by a corporation or organization
that is exempt from income tax under Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, and which satisfy the definition of "charitable
organization" as provided in Section 2 of these regulations, are exempt from
consumers sales and service tax.
126.4.2. Civic Organization Operated for
Social Welfare.
126.4.2.1. "Occasional sales
of food," as defined in Section 2 of these regulations, by a corporation or
organization that is exempt from income tax under Section '501(c)(4) of the
Internal Revenue Code of 1986, as amended, are exempt from consumers sales and
service tax.
126.4.2.2. Examples of
organizations that may qualify.
Educational radio stations
Junior Chamber of Commerce
Civic Improvement Association
Volunteer fire department
Volunteer rescue squad
126.4.3. Nonprofit Organization.
126.4.3.1. "Occasional sales of food," as
defined in Section 2 of these regulations, by a nonprofit corporation or
organization not included in Sections 126.4.1.1 and 126.4.1.2 of these
regulations may be exempt from consumers sales and service tax.
126.4.3.2. Examples of organizations that may
qualify.
126.4.3.2.a. Labor, agricultural or
horticultural organizations which are exempt from income tax under Section
501(c)(5) of the Internal Revenue Code of 1986, as amended.
126.4.3.2.b. Business leagues, chambers of
commerce and other organizations which are exempt from income tax under Section
501(c)(6) of the Internal Revenue Code of 1986, as amended.
126.4.3.2.c. Social clubs and clubs organized
for pleasure, recreation and other nonprofit purposes which are exempt from
income tax under Section 501(c)(7) of the Internal Revenue Code of 1986, as
amended.
126.4.3.2.d. Fraternal or
benevolent societies, orders or associations which are exempt from income tax
under Section 501(c)(8) of the Internal Revenue Code of 1986, as
amended.
126.4.4. Purchases of food for sale under the
foregoing Section 126.4 are not exempt from the consumers sales and service tax
or the use tax as a purchase for resale.
126.5. Food sold by any religious
organization at a social or other gathering conducted by it or under its
auspices, if the purpose in selling the food is to obtain revenue for the
functions and activities of the organization and the revenue obtained from
selling the food is actually used in carrying on such functions and activities:
Provided, That purchases made by such organizations shall not be exempt as a
purchase for resale.
126.6. Sales
of food by little leagues, midget football leagues, youth football or soccer
leagues and similar types of organizations including scouting groups and church
youth groups are exempt if the purpose in selling the food is to obtain revenue
for the functions and activities of the organization and the revenue obtained
from selling the food is actually used in supporting or carrying on the
functions and activities of the groups.
