Current through Register Vol. XLI, No. 38, September 20, 2024
128.1.
Effective July 1, 1989, every person who engages in the business of making mail
order sales is exercising a taxable privilege, when:
128.1.1. The retailer is a corporation doing
business under the laws of this State or a person domiciled in, a resident of,
or a citizen of this State;
128.1.2. The retailer maintains a retail
establishment or office in this State whether or not the mail order sales
result from or are related in any other way to the activities of such
establishment or office; or
128.1.3. The retailer has agents in this
State who solicit business or transact business on behalf of the retailer,
whether or not the mail order sales result from or are related in any other way
to such solicitation or transaction of business; or
128.1.4. The property or the result of a
service was delivered within this State in fulfillment of a sales contract that
was entered into in this State, in accordance with applicable conflict of laws
rules, when a person in this State accepted an offer by ordering the property
or the service; or
128.1.5. The
retailer, purposefully or systematically exploiting the market provided by this
State by any media-assisted, media-facilitated, or media-solicited means,
including, but not limited to, direct mail advertising, unsolicited
distribution of catalogs, computer-assisted shopping, television, radio or
other electronic media or magazine or newspaper advertisements or other media,
creates nexus with this State; or
128.1.6. Through compact or reciprocity with
any other jurisdiction of the United States which jurisdiction uses its taxing
power and its jurisdiction over the retailer in support of this State's taxing
power; or
128.1.7. The retailer
consents, expressly or by implication, to the imposition of the West Virginia
use tax.
128.2.
Definitions. - The following terms or phrases when used in this Section shall
have the meaning ascribed to them except where the context clearly indicates a
different meaning is intended:
128.2.1.
"Retailer" means and includes every person engaging in the business of selling
or leasing tangible personal property for use in this State or rendering
taxable services the results of which will be used in this State, including a
retailer who transacts mail order sales.
128.2.1.1. When in the opinion of the Tax
Commissioner it is necessary for the efficient administration of the use tax,
the Tax Commissioner may regard any salesperson, representative, trucker,
peddler, or canvasser as the agent of the dealers, distributors, supervisors,
employers or persons under whom they operate or from whom they obtain the
tangible personal property or taxable service sold by them, regardless of
whether they are making sales on their own behalf or on behalf of such dealers,
distributors, supervisors, employers or persons; and the Tax Commissioner may
regard such dealers, distributors, supervisors, employers or persons as
retailers for purposes of collecting the use tax imposed by this
State.
128.2.2.
"Retailer engaging in business in this State" means and includes, but shall not
be limited to:
128.2.2.1. Any retailer having
or maintaining, occupying or using within this State, directly or by a
subsidiary, an office, distribution house, sales house, warehouse, or other
place of business, or any agent (by whatever name called) operating within this
State under the authority of the retailer, or its subsidiary, regardless of
whether such place of business or such agent is located here permanently or
temporarily, or whether such retailer, or subsidiary, is admitted to do
business within this State pursuant to W. Va. Code '31-1-49. This definition
shall be administered and enforced in conformity with the Constitutions and
statutes of this State and of the United States.
128.2.2.2. Any retailer soliciting orders
from persons located in this State for the sale of tangible personal property
or taxable services by means of any of the following:
128.2.2.2.a. By means of a telecommunication
or television shopping system which utilizes a telephone or mail ordering
system, including toll free telephone numbers, reverse charge telephone systems
or other telephone ordering systems and which is intended by the retailer to be
broadcast by cable television or other means of broadcasting to consumers
located in this State.
128.2.2.2.b.
By means of advertising that is broadcast from, printed at, or distributed
from, a location in this State if the advertising from such location is
primarily intended to be disseminated to consumers located in this State and is
only secondarily or incidentally disseminated to bordering jurisdictions.
Advertising which is broadcast from a radio or television station located in
this State or is printed in or distributed by a newspaper published in this
State is presumed to be primarily intended for dissemination to consumers
located in this State. This presumption may be rebutted by persuasive evidence
to the contrary. However, the number and geographic location of a television
station's viewers, a radio station's listeners, a newspaper's subscribers or
the distributees of advertising printed at or distributed from a location in
this State is but one factor to be considered and, standing alone, shall not be
controlling the controlling factor.
128.2.2.2.c. By mail if the solicitations are
substantial and recurring and if the retailer economically benefits from any
banking, financing, debt collection, telecommunication or marketing activities
occurring in this State or economically benefits from the location in this
State of an authorized installation or service or repair facility, regardless
of whether such facility is owned or operated by such retailer or by a related
or unrelated person.
128.2.2.2.d.
By having a franchisee or licensee operating in this State under the retailer's
trade name, if the franchisee or licensee is required to collect the consumers
sales and service tax or use tax imposed by this State.
128.2.2.2.e. By means of a contract with a
cable television operator located in this State pursuant to which the retailer
solicits from persons located in this State orders for the sale of tangible
personal property or taxable services by means of advertising which is
transmitted or distributed over a cable television system in this State.
This definition shall be administered and enforced in
conformity with the Constitutions and statutes of this State and of the United
States.
128.2.3. "Final adjudication" means a
decision of a court of competent jurisdiction from which no appeal can be taken
or from which the official or officials of this State with authority to make
such decisions have decided not to appeal.
128.2.4. "A mail order sale" is a sale of
tangible personal property, or a taxable service that is ordered by mail,
computer-assisted shopping, media-assisted, media-facilitated, or
media-solicited, or by other means of communication (including but not limited
to direct mail advertising, unsolicited distribution of catalogs, television,
radio or other electronic media, telephone or magazine or newspaper
advertising), to a purchaser who is in this State at the time the order is
remitted, from a dealer who receives the order in another state of the United
States, or is in a commonwealth, territory or other area under the jurisdiction
of the United States, and transports the property or causes the property to be
transported, whether or not by mail, from any jurisdiction of the United
States, including this State to a person in this State, including the person
who ordered the property. For purposes of this definition, there is a
presumption that every person who is a resident of this State who remits an
order was in this State when the order was finally remitted by the vendor.
Example 1: A purchaser, who is a resident of West Virginia,
receives in the mail a catalog of the seller who resides in another state and
whose business facilities are all located in that state. The purchaser orders
tangible personal property advertised in the catalog by completing an order
blank furnished with the catalog, attaching his or her personal check in the
amount required for the purchase, and mails the order from within this State to
the seller. The seller, by mail or other means of transportation, transmits the
property to the purchaser in West Virginia. If any of the provisions of Section
128.1 are applicable, this is a taxable mail order sale and the out-of-state
vendor must collect use tax from the West Virginia customer.
Example 2: A purchaser, not a resident of West Virginia,
while outside this State orders tangible personal property from a seller in
another state to be sent to the purchaser's grandchildren in West Virginia.
This is not a "mail order sale" because the purchaser was not in West Virginia
at the time the order was remitted.
Example 3: A West Virginia resident, while vacationing in
another state, orders tangible personal property from a seller in another state
to be sent to the purchaser's home in West Virginia. Since the purchaser is a
West Virginia resident, he or she is presumed to have purchased the property
for use or consumption in this State. If any of the provisions of Section 128.1
are applicable, the out-of-state vendor must collect West Virginia use tax. If
this presumption is rebutted, this would not be a taxable "mail order
sale."
128.3.
Vendor's Responsibilities. - Every vendor engaged in the business of making
mail order sales that are subject to use tax is required to have a business
registration certificate. No registration fee is required unless the vendor has
contact with this State that is sufficient to sustain imposition by this State
of a direct tax on the out-of-state vendor.
128.4. Transportation and Handling Charges. -
The total amount paid for tangible personal property, including transportation
charges, handling charges, and any other charges whatsoever that occur prior to
actual transfer of title to the tangible personal property to the purchaser by
the vendor are subject to the tax regardless of whether such charges are
separately stated.
128.5. No Dealer
Collection Allowance. - Persons who collect consumers sales and service tax or
use taxes must turn over to the Tax Commissioner the full amount of consumers
sales and service or use taxes they collect from West Virginia customers.
Neither the consumers sales and service tax law nor the use tax law authorizes
the taking of a vendor's collection allowance.
128.6. Refund of Taxes on Mail Order Sales.
128.6.1. When there has been a final
adjudication that any tax upon a mail order sales transaction was levied or
collected, or both levied and collected, contrary to the Constitution of the
United States, or the Constitution of West Virginia, or both Constitutions, the
Tax Commissioner will, in accordance with Section 128.6.2 of these regulations,
refund the amount of tax to the person who paid the tax or, at the taxpayer's
election, establish a tax credit.
128.6.2. To receive a refund or credit of
consumers sales and service tax or use tax, the person who paid the tax must
file a claim for refund within two years from the date the tax was paid to the
vendor or directly to the State Tax Commissioner. Such claim must include the
following information.
128.6.2.1. A
description of the tangible personal property or taxable service
purchased;
128.6.2.2. The date on
which the purchase was made;
128.6.2.3. The purchase price of the item(s)
or service(s);
128.6.2.4. The
amount of West Virginia consumers sales or use taxes paid for such
item;
128.6.2.5. The name and
mailing address of the seller from which the purchase of the tangible personal
property or taxable service was made;
128.6.2.6. The citation of the court decision
or decisions upon which the claim for refund is based;
128.6.2.7. A copy of the sales invoice made
out by the seller of the tangible personal property or taxable service;
and
128.6.2.8. Any other
information that is required by the State Tax Department in order to verify the
authenticity or accuracy of the claim for refund.
128.6.3. The Tax Commissioner may refuse to
grant a claim for refund or credit if the claim for refund is incomplete or
fails to contain all of the information required by Section 128.6.2 of these
regulations.
128.6.4. Upon formal
approval of a complete claim for refund, the Tax Commissioner shall promptly
issue his requisition on the Treasury. If a claim for credit is approved, the
Tax Commissioner shall promptly establish the amount of the credit.
