West Virginia Code of State Rules
Agency 110 - Tax
Title 110 - LEGISLATIVE RULE STATE TAX DEPARTMENT
Series 110-15 - Consumer Sales And Service Tax And Use Tax
Section 110-15-2 - Definitions

Universal Citation: 110 WV Code of State Rules 110-15-2

Current through Register Vol. XLI, No. 38, September 20, 2024

As used in these regulations and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed herein, and shall apply in the singular or in the plural.

2.1. "Air pollution" - See Section 2.27.1.13.c of these regulations.

2.2. "Aircraft," for purposes of the tax on gasoline and special fuel, means and includes any airplane or helicopter that lands in this State on a regular or routine basis, and transports passengers or freight.

2.3. "Aircraft fuel," for purposes of the tax on gasoline and special fuel, means gasoline and special fuel suitable for use in any aircraft engine.

2.4. "Alteration" - See Section 2.24.3.1 of these regulations.

2.5. "Another state" means any state, as defined in Section 2.86 of this rule except the State of West Virginia.

2.6. "Aquaculture" means the raising of fish or the growing of plants in water for commercial purposes.

2.7. "Auxiliary personnel" - See Section 2.81.2 of these regulations.

2.8. "Bona fide dues or membership fees" - See Section 2.48 of these regulations.

2.9. "Business" or "doing business" includes any purposeful revenue generating activity in this State and includes all activities engaged in or caused to be engaged in with the object of gain or economic benefit, direct or indirect, and all activities of the State and its political subdivisions which involve sales of tangible personal property or the rendering of services when those service activities compete with or may compete with the activities of other persons.

2.10. "Capital improvement" - See Section 2.24.3.2 of these regulations.

2.11. "Casual and occasional sales not conducted in a repeated manner or in the ordinary course of repetitive and successive transactions of like character" means sales of tangible personal property or services ("fund raisers"), when such fund raisers are of limited duration and are held no more than six (6) times during any twelve (12) month period. For purposes of this definition, the term "limited duration" means that a fund raiser may last no longer than eighty-four (84) consecutive hours.

2.11.1. Any person qualifying for an exemption from or relating to casual and occasional sales shall have the exemption available for up to a total of six (6) fund raisers in a twelve (12) month period. The seventh (7th) fund raiser and any purported sale or fund raiser thereafter in any twelve (12) month period shall not constitute a casual and occasional sale or fund raiser for purposes of these regulations. Any purported fund raiser having a duration longer than eighty-four (84) hours shall be treated as two (2) or more successive fund raisers. If the number of total aggregate fund raisers is greater than six (6) for any twelve (12) month period, any purported fund raiser beyond six (6) is taxable activity.

2.12. "Charitable contribution" means a contribution or gift to or for the use of a corporation or organization, described in Section 170(c)(2) of the Internal Revenue Code of 1986, as amended.

2.13. "Charitable organization" means and includes any corporation or organization which is organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the providing of athletic facilities or equipment), or for the prevention of cruelty to children or animals, provided that no part of the net earnings of the organization inures to the benefit of any private shareholder or individual, that no substantial part of the activities of the organization is carrying on propaganda or otherwise attempting to influence legislation and that it does not participate in any political campaign on behalf of any candidate for public office. For purposes of this Section, such participation would include publishing or distribution of political statements.

2.14. "Church" means an individual parish, congregation or like subgroup of an organized religion, denomination, sect or religious society, or a convention or association of churches as defined in Section 170 of the Internal Revenue Code of 1986, as amended, which is exempt from federal income tax under Section 501(c)(3) or Section 501(c)(4) of the Internal Revenue Code of 1986, as amended; but the term "church" shall not include an affiliated religious school.

2.15. "Civic organization" means a nonprofit organization or corporation that is operated exclusively for the promotion of social welfare.

2.16. "Commercial production of an agricultural product" means the production of food, fiber, or woodland products (but not timbering activity) by means of cultivation, tillage of the soil or by the conduct of animal, livestock, dairy, apiary, equine or poultry husbandry, aquacultural activity, horticultural activity, or any other plant or animal production activity and all farm practices related, usual or incidental thereto, including the storage, packing, shipping and marketing of agricultural or farm products, but not including any manufacturing, milling or processing of such products by persons other than the producer thereof, such production being measured by annual sales of at least one thousand dollars ($1,000) of such agricultural products: Provided, That for the first twelve (12) months after the occurrence of a catastrophe, such as fire, drought or flood, which substantially destroyed the agricultural product being produced or the means for harvesting such product other than merely mechanical breakdowns, or for the first twelve (12) months after the commercial producer of an agricultural product has first commenced such production activity, the requirement of annual sales of at least one thousand dollars ($1,000) of agricultural products need not be satisfied in order for the activity to be the commercial production of an agricultural product.

2.17. "Communication" means all telephone, radio, light, light wave, radio-telephone, telegraph and other communication or means of communication, whether used for voice communication, computer data transmission or other encoded symbolic information transfers and shall include commercial broadcast radio, commercial broadcast television, cable television and motion picture theaters.

2.18. "Conditional sale" means an agreement for the sale of tangible personal property pursuant to which possession is delivered to the buyer, but title is retained by the seller until the performance of some condition, usually the payment of the purchase price, has occurred.

2.19. "Consumer" or "ultimate consumer" means any person who uses or consumes taxable services or tangible personal property.

2.20. "Consumers sales and service tax," "consumers sales tax" and "sales tax" mean the tax imposed by W. Va. Code '11-15-1 et seq.

2.21. "Contract" or "contracts" means, for purposes of the transition rules set forth in W. Va. Code '11-15-8a for contracting activities, written agreements reciting or setting forth a fixed price consideration, or a consideration based upon cost plus a stated percentage or a stated monetary increment. This term does not mean or include ongoing sales contracts, contracts whereby any element of the consideration or the property or services sold or to be rendered in performance of the contract are undefined, or determined, as to either nature or quantity, subsequent to the making of the contract, or any open-ended contract.

2.21.1. The term "contract" or "contracts" does not include for purposes of the transition rules set forth in W. Va. Code ''11-15-8a and 11-15-8c, change orders wherein the scope of work contained in the original contract is exceeded to a degree sufficiently significant to require additional charges to the customer. Purchases by a contractor for use in contracting activities performed under such change orders may be subject to the consumer sales and service tax.

2.22. "Contract basis" means, for purposes of determining the exemption of certain charges for room and meals, the circumstance where a fixed price is paid for consumption of food products during a specific period of time without regard to the amount of food product actually consumed by the particular student contracting for the purchase and no money is paid at the time the food product is served or consumed. The term "specific period of time" means a fixed time period of not less than thirty (30) consecutive days.

2.23. "Contract renewal" or "renewal" means, for purposes of contracting activities, a covenant or agreement entered into or assumed by parties which have a current contractual relation or which have had a past contractual relation, whereby the parties agree to incur obligations beyond those which they were, or would have been, required, at the minimum, to carry out under their current or past contractual relation.

2.24. "Contracting" or "contracting activity" means and includes the furnishing of work, or both materials and work, for another (by a sole contractor, general contractor, prime contractor or subcontractor) in fulfillment of a contract for the construction, alteration, repair, decoration or improvement of a new or existing building or structure, or any part thereof, or for removal or demolition of a building or structure, or any part thereof, or for the alteration, improvement or development of real property.

2.24.1. Contracting does not include the furnishing of work, or both materials and work, in the nature of hook-up, connection, installation or other services if such service is incidental to the retail sale of tangible personal property from the service provider's inventory: Provided, That such hook-up, connection or installation of the foregoing is incidental to the sale of the same when performed by the seller thereof or performed in accordance with arrangements made by the seller thereof.
2.24.1.1. Examples of transactions that are excluded from the definition of contracting pursuant hereto include, but are not limited to, the sale of wall-to-wall carpeting and the installation of wall-to-wall carpeting, the sale, hook-up and connection of mobile homes, window air conditioning units, dishwashers, clothing washing machines or dryers, other household appliances, drapery rods, window shades, venetian blinds, canvas awnings, free-standing industrial or commercial equipment and other similar items of tangible personal property.

2.24.2. Form of Contract Not Controlling. - Any activity that falls within the definition of contracting under this Section 2.24 of these regulations shall constitute contracting regardless of whether the contract governing the activity is written or oral and regardless of whether it is in substance or form a lump sum contract, a cost-plus contract, a time and materials contract (whether or not open-ended), or any other kind of construction contract.

2.24.3. Special Rules. - For purposes of this definition:
2.24.3.1. The term "alteration" means and is limited to alterations which are capital improvements to a building or structure or to real property.

2.24.3.2. The term "capital improvement" means improvements that are affixed to or attached to and become a part of a building or structure or the real property or which add utility to real property or any part thereof and that last, or are intended to be relatively permanent.
2.24.3.2.a. The term "relatively permanent" means lasting at least a year or longer in duration without the necessity for regularly scheduled recurring service to maintain such capital improvement.

2.24.3.2.b. The term "regular recurring service" means regularly scheduled service intervals of less than one year.

2.24.3.3. The term "decoration" means and is limited to decorations which are capital improvements to a building or structure or to real property.

2.24.3.4. The term "improvement" means and is limited to improvements which are capital improvements to a building or structure or to real property.

2.24.3.5. The term "repair" means and is limited to repairs which are capital improvements to a building or structure or to real property. "Repairs" does not include ordinary maintenance and repairs which tend to restore and repair the effects of normal wear and tear which occurred in the past or ordinary repairs which do not materially add to the economic value of the asset.

2.24.3.6. The term "structure" includes, but is not limited to, everything built up or composed of parts joined together in some definite manner and attached or affixed to real property, or which adds utility to real property or any part thereof, or which adds utility to a particular parcel of property and is intended to remain there for an indefinite period of time.

2.25. "Day care center" or "licensed or registered day care center" means a facility licensed in accordance with W. Va. Code '49-2B-1 et seq. and operated by a child welfare agency for the care of seven (7) or more children on a non-residential basis or registered in accordance with W. Va. Code '49-2B-1 et seq. and operated to care for four (4) to six (6) children, including those living in the household, who are under six (6) years of age: Provided, That the term does not include:

2.25.1. a kindergarten, pre-school or school education program which is operated by a public school or which is accredited by the State Department of Education, or any other kindergartens, pre-school or school programs which operate with sessions not exceeding four (4) hours per day for any child;

2.25.2. summer recreation camps or educational summer camps operated for children attending sessions for periods not exceeding thirty (30) days;

2.25.3. See Section 9.2.8 of these regulations for additional information.

2.26. "Decoration" - See Section 2.24.3.3 of these regulations.

2.27. "Directly used or consumed" in manufacturing, transportation, transmission, communication or the production of natural resources shall mean used or consumed in those activities or operations which constitute an integral and essential part of such activities, as contrasted with and distinguished from those activities or operations which are simply incidental, convenient or remote to such activities.

2.27.1. Uses of property or consumption of services which constitute direct use or consumption in the activities of manufacturing, transportation, transmission, communication or the production of natural resources shall include only:
2.27.1.1. In the case of tangible personal property, physical incorporation of property into a finished product resulting from manufacturing production or the production of natural resources;

2.27.1.2. Causing a direct physical, chemical or other change upon property undergoing manufacturing production or production of natural resources;

2.27.1.3. Transporting or storing property undergoing transportation, communication, transmission, manufacturing production, or production of natural resources;

2.27.1.4. Measuring or verifying a change in property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;

2.27.1.5. Physically controlling or directing the physical movement or operation of property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;

2.27.1.6. Directly and physically recording the flow of property undergoing transportation, communication, transmission, manufacturing production or production of natural resources;

2.27.1.7. Producing energy for property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;

2.27.1.8. Facilitating the transmission of gas, water, steam or electricity from the point of its diversion to property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;

2.27.1.9. Controlling or otherwise regulating atmospheric conditions required for transportation, communication, transmission, manufacturing production or production of natural resources;

2.27.1.10. Serving as an operating supply for property undergoing transmission, manufacturing production or production of natural resources or for property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;

2.27.1.11. Maintaining or repairing property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;

2.27.1.12. Storing, removing or transporting economic waste directly resulting from the activities of transportation, communication, transmission, manufacturing or production of natural resources;

2.27.1.13. Pollution control or environmental quality or protection activity directly relating to the activities of manufacturing, transportation, communication, transmission or the production of natural resources.
2.27.1.13.a. "Pollution control" means any service, system, method, construction, device or appliance appurtenant thereto used or intended for the primary purpose of eliminating, preventing, or reducing air, noise or water pollution, or for the primary purpose of treating, pretreating, modifying or disposing of any potential solid, liquid or gaseous pollutant which, if released without such treatment, pretreatment, modification or disposal, might be harmful, detrimental or offensive to the public and the public interest.

2.27.1.13.b. "Environmental quality or protection activity or facility" means services, devices (including identifiable parts of devices), systems or facilities used or intended for use primarily for the protection of the public and the public interest through the control, reduction or elimination of air, water or noise pollution immediately caused by and directly related to the activities of manufacturing, transportation, communication, transmission or the production of natural resources.

2.27.1.13.c. "Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants or combinations thereof in such quantities and of such characteristics, location and duration as to be injurious to the public and the public interest, or to unreasonably interfere with the comfortable enjoyment of life or property or the conduct of business within such areas of the State as shall be affected thereby.

2.27.1.13.d. "Water pollution" means the discharge or deposit of sewage, industrial wastes, or other wastes of such condition, in such manner, or in such quantity as to cause ground or surface water to be contaminated, unclean, or impure to such an extent to make said waters detrimental to the public and the public interest.

2.27.1.13.e. "Noise pollution" means sound which has intensity, duration or character which exceeds standards developed by the State environmental protection agency.

2.27.1.14. Personnel, plant, product or community safety or security activity directly relating to the activities of transportation, communication, transmission, manufacturing production or production of natural resources; or

2.27.1.15. Property or services otherwise used as an integral and essential part of transportation, communication, transmission, manufacturing production or production of natural resources.

2.27.2. Uses of property or services which would not constitute direct use or consumption in the activities of manufacturing, transportation, transmission, communication or the production of natural resources shall include, but is not limited to:
2.27.2.1. Heating and illumination of office buildings;

2.27.2.2. Janitorial or general cleaning activities;

2.27.2.3. Personal comfort of personnel;

2.27.2.4. Production planning, scheduling of work, or inventory control;

2.27.2.5. Marketing, general management, supervision, finance, training, accounting and administration; or

2.27.2.6. An activity or function incidental or convenient to transportation, communication, transmission, manufacturing production or production of natural resources, rather than an integral and essential part of such activity.

2.27.3. For a more detailed discussion of the direct use concept, See Section 123 of these regulations.

2.28. "Distributor" means and includes, for purposes of the tax on gasoline and special fuel, every person:

2.28.1. Who produces, manufactures, processes or otherwise alters gasoline or special fuel in this State for use or for sale; or

2.28.2. Who engages in this State in the sale of gasoline or special fuel for the purpose of resale or for distribution; or

2.28.3. Who receives gasoline or special fuel into the cargo tank of a tank wagon in this State for use or sale by such person.

2.29. "Drugs" includes all drugs or appliances, which cannot otherwise be acquired over-the-counter but must be dispensed upon written prescription of a physician, dentist and any other professional person licensed to prescribe.

2.30. "Educational summer camp" means a program and facility providing courses of instruction in activities such as art, science, music, computers, foreign languages, forestry, religious study, etc., such courses of instruction occupying a substantial amount of time during which participants are in attendance at the camp.

2.30.1. For the purpose of this regulation, the term "educational" means: dedicated to providing instruction or learning for the intellectual, physical and moral development and betterment of the recipient thereof, and the improvement of his knowledge, skill and character. For purposes of these regulations, those courses of study traditionally provided through formal schooling may be presumed to be educational.

2.30.2. Training in athletics, sports training, or physical conditioning shall not be considered "educational" for purposes of these regulations unless the primary scope or purpose of the summer camp is not training in athletics, sports training, or physical conditioning.

2.30.3. Specifically excluded from the definition of educational summer camps are those programs and facilities primarily related to paramilitary training, nudist camping or those related to animal training.

2.30.4. For purposes of this regulation, the term "summer" means that portion of the year during which West Virginia elementary and secondary public schools have summer recess. This period shall begin with the earliest cessation of the regular school year occurring for any such West Virginia public school among all such schools in all counties of the State of West Virginia, and shall end with the latest beginning of the next regular school year occurring for any such West Virginia public school among all such schools in all counties of the State of West Virginia.

2.31. "Environmental quality or protection activity or facility" - See Section 2.27.1.13.b of these regulations.

2.32. "Farm products" means products grown on a farm, generally for consumption, and includes, but is not necessarily limited to, apples, cherries, strawberries, natural honey and corn; however, farm products do not include that which is made or pressed on a farm such as, but not limited to, jams, preserves, apple cider or quilts.

2.33. "Food" and "food for meals" means and includes edible foodstuffs intended for human consumption and items commonly thought of as food, including, by way of illustration and not by limitation, cereals and cereal products, meat and meat products, fish and fish products, poultry and poultry products, fresh and salt water animal products, eggs and egg products, vegetables and vegetable products, fruit and fruit products, flour and flour products, sugar and sugar products, milk and milk products, cocoa and cocoa products, coffee and coffee substitutes, tea, herbs, spices, salt and salt substitutes, condiments, candy and confections, soft drinks, soft drink mixes and syrups, tenderizers, food coloring, bottled drinking water, sugar substitutes, oleomargarine, shortening, gelatins, baking and cooking ingredients, mushrooms, spreads, relishes, desserts, flavorings, edible seeds, nuts and berries: Provided, That the term "food" and "food for meals" does not include medicines, vitamins and dietary supplements whether in liquid, powdered, granular, tablet, capsule, lozenge, or pill form; spirituous, malt or vinous liquors or beer; ice; tobacco or tobacco products; chewing gum; cake letters; breath mints; or food sold through a vending machine.

2.33.1. Tests for Determining Whether "Food is Intended for Human Consumption". - Occasionally a question may arise concerning whether a particular food or food product is intended for human consumption. This question is to be answered by application of the following two tests. If either question is answered in the negative (no), the item may not be considered as "food intended for human consumption," and consumers sales and service tax must be collected.
2.33.1.1. Test One. - Is the product generally regarded by the public as being food intended for human consumption?

2.33.1.2. Test Two. - Do the words or statements on the label or package, if any, suggest that the product is food intended for human consumption?

2.33.2. The burden of proving that a particular food or product is purchased as "food intended for human consumption" rests on the vendor. In case of any doubt as to whether the product is intended for human consumption, the tax shall be collected. Any person claiming to be aggrieved by having to pay the consumers sales and service tax shall pay the amount of tax to the retail merchant (vendor) and file a claim for refund with the Tax Commissioner.

2.33.3. See Appendix 1 of these regulations, "Condiments considered to be food" which is an illustrative list of items which are included in the definition of "food."

2.34. "Gasoline" means and includes, for purposes of the tax on gasoline and special fuel, any product commonly or commercially known as gasoline, regardless of classification, suitable for use as fuel in an internal combustion engine, except special fuel as defined in Section 2.85 of these regulations, including any product obtained by blending together any one or more products, with or without other products, if the resultant product is capable of the same use.

2.35. "Gross proceeds" means the amount received in money, credits, property or other consideration from sales and services within this State, without deduction on account of the cost of property sold, amounts paid for interest or discounts or any other expenses whatsoever. Gross proceeds shall be reduced by the value of an item of tangible personal property which is traded-in for the purpose of reducing the purchase price of the item purchased or the amount of a discount allowed by the vendor for the item at the time the item is purchased. Losses shall not be deducted, but any credit or refund made for goods returned may be deducted.

2.35.1. Gross proceeds shall include the amount of any excise tax or other tax imposed upon the tangible personal property or taxable service sold or used, or the sale thereof, prior to the imposition of the West Virginia consumers sales and service tax or use tax on such property or taxable service.

2.35.2. Gross proceeds shall include any increase in the amount paid by the ultimate consumer or end user of tangible personal property or a taxable service by reason of shipping charges, postage, handling charges, costs of travel or transportation or any similar cost or charge.

2.35.3. For purposes of these regulations the terms "charge," "gross sales price," "sales price," "purchase price," "monetary consideration" and "gross receipts" shall be synonymous with the term "gross proceeds."

2.35.4. Gross proceeds shall not include the amount of federal, state or local tax simultaneously imposed upon the tangible personal property or service purchased.

2.36. "Importer" means and includes, for purposes of the tax on gasoline and special fuel, every person, resident or nonresident, other than a distributor, who receives gasoline or special fuel outside this State for use, sale or consumption within this State, but shall not include the fuel in the supply tank of a motor vehicle that is not a motor carrier. See definition of motor carrier in Section 2.52 of these regulations.

2.37. "Improvement" - See Section 2.24.3.4 of these regulations.

2.38. "Intangible personal property" means chattel interests, real and personal, money, credits, investments and the evidences thereof.

2.39. "Isolated transaction" means a transaction or event in which tangible personal property or a taxable service is sold, transferred, offered for sale or delivered by the owner thereof or by his representative. In order to qualify as an isolated transaction, the seller may not be in the business of selling the type of tangible personal property or rendering the service which is the subject of the transaction. The isolated transaction may be in the form of a single transaction, or a series of individual transactions which would be an event. An example of a single transaction would be the sale of a boat. An example of a series of transactions comprising an event would be a yard sale. An event may not be longer than forty-eight (48) hours in duration. A person qualifying for the exemption shall have the isolated transaction exemption available for up to a total of four (4) "isolated transactions" (whether they be "transactions" or "events," as herein described,) in any twelve (12) month period. The fifth (5th) transaction or event and any transaction or event thereafter in any such twelve (12) month period is taxable. Any purported "event" having a duration longer than forty-eight (48) hours shall be treated as two (2) or more successive "events." If the number of total aggregate events is greater than four (4) for any twelve (12) month period, any purported event beyond four (4) is a taxable activity.

2.39.1. The isolated transaction exemption shall be available for persons selling their tangible personal property through an auctioneer, if the requirements of this definition are met with relation to the person whose property is being sold. For sales by an auctioneer, See Section 86 of these regulations.

2.41. "Lease" includes rental, hire and license.

2.42. "Livestock" means farm animals raised for profit but does not include cats, rabbits, dogs, rats, mice, raccoons, groundhogs, deer, squirrels, crows, bears, exotic animals, parrots, parakeets, swans, peafowl, tropical or wild or exotic birds or fish or any animal commonly kept as, or thought of as a pet, or any game animal or wild animal unless raised for profit: Provided, That such profit is not obtained through the sale of such animal, fowl or fish being sold as a pet.

2.43. "Management information services facility" means a building, or any part thereof, or a complex of buildings, or any part thereof, including the machinery and equipment located therein, that is exclusively dedicated to providing management information services to the owner or operator thereof or to another person.

2.44. "Management information services" means, and is limited to, data processing, data storage, data recovery and backup, programming recovery and backup, telecommunications, computation and computer processing, computer programming, electronic information, and data management activities, or any combination of such activities, when such activity, or activities, is not subject to regulation by the West Virginia public service commission and such activity, or activities, is for the purpose of managing, planning for, organizing, or operating, any industrial or commercial business, or any enterprise, facility or facilities of an industrial or commercial business, whether such industrial or commercial business or enterprise, facility or facilities of an industrial or commercial business is located within or without this state and without regard to whether such industrial or commercial business, or enterprise, facility or facilities of an industrial or commercial business is owned by the provider of the management information services or by a "related person," as defined in Section 267(b) of the Internal Revenue Code of 1986, as amended.

2.45. "Manufactured home" means a structure, transportable in one (1) or more sections, which in the traveling mode is eight (8) body feet or more in width or forty (40) body feet or more in length or, when erected on site, is three hundred twenty (320) or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning and electrical systems contained therein; except that such term includes any structure which meets all the requirements of this definition except the size requirements and with respect to which the manufacturer voluntarily files a certificate which complies with the applicable federal standard as set forth in the National Manufactured Housing Construction and Safety Standards Act of 1974 ( 42 U.S.C. 5401, et seq.) and the federal manufactured home construction and safety standards and regulations promulgated by the Secretary of the United States Department of Housing and Urban Development to implement such act. Calculations used to determine the number of square feet in a structure will be based on the structure's exterior dimensions measured at the largest horizontal projections when entered on site. The term "manufactured home" includes:

2.45.1. units containing parts that may be folded, collapsed or telescoped when being towed and that may be expanded to provide additional cubic capacity.

2.45.2. units composed of two (2) or more separately towable components designed to be joined into one (1) integral unit capable of being separated again into the components for repeated towing.

2.45.3. units designed to be used for residential, commercial, educational or industrial purposes, excluding, however, recreational vehicles, as defined in Section 2.71 of these regulations.

2.46. "Manufacturing" means a systematic operation or integrated series of systematic operations engaged in as a business or segment of a business which transforms or converts tangible personal property by physical, chemical or other means into a different form, composition or character from that in which it originally existed. Manufacturing production begins with the arrival of raw materials and ends when the property has reached that point where no further chemical, physical or other changes are to be made to the resultant property in the production process.

2.46.1. A person may be engaged in a manufacturing activity although such person does not have legal title to or any economic interest in the tangible personal property so transformed or converted.

2.47. "Member of the producer's immediate family" means the producer's spouse, son, step-son, daughter, step-daughter and any other person related by blood or marriage residing with the producer.

2.48. "Membership fees or bona fide dues" mean those amounts paid by members which entitle such persons to continued membership in a corporation, organization or association. Membership fees or bona fide dues do not include any amounts paid for tangible personal property or specific services rendered to members by a corporation, organization or association. For related material See Sections 52.4 and 70.3 of these regulations.

2.49. "Mobile home" means a "manufactured home" as defined in Section 2.45 of these regulations.

2.50. "Modular home" means a "manufactured home" as defined in Section 2.45 of these regulations.

2.51. "Monetary consideration" means the actual cost to the purchaser of tangible personal property or a service purchased after deduction for the value of any item traded-in as part of the consideration paid for the tangible personal property or service purchased. Monetary consideration shall not include the amount of federal, state or local tax simultaneously imposed upon the tangible personal property or service purchased.

2.52. "Motor carrier" means and includes, for purposes of the tax on gasoline and special fuel, (A) any passenger vehicle which has seats for more than nine passengers in addition to the driver, any road tractor, tractor truck or any truck having more than two axles, which is operated or caused to be operated, by any person on any highway in this State using gasoline or special fuel; and (B) any aircraft, barge or other watercraft, or locomotive transporting passengers or freight in or through this State.

2.53. "Motor vehicle" means and includes, for purposes of the tax on gasoline and special fuel, automobiles, motor carriers, motor trucks, motorcycles and all other vehicles or equipment, engines or machines which are operated or propelled by combustion of gasoline or special fuel. See this Section 2 for the definition of "vehicle."

2.54. "Natural Resources." - See Section 123 of these regulations.

2.55. "Nonprofit organization" means a corporation or organization no part of the income or profit of which is distributed to its shareholders, members, directors or officers.

2.56. "Noise pollution" - See Section 2.27.1.113.e of these regulations.

2.57. "Occasional sale of food" means a casual and occasional sale, as defined in Section 2.11 of these regulations, of food, as defined in Section 2.33 of these regulations.

2.58. "Person" includes any state, and its political subdivisions or an agency of either, the State of West Virginia and its political subdivisions or an agency of either, and any individual, firm, partnership, joint venture, joint stock company, the government of the United States and its agencies, any public or private corporation, municipal corporation, cooperative, estate, trust, business trust, receiver, executor, administrator, any other fiduciary, any representative appointed by order of any court or otherwise acting on behalf of others, or any other group or combination acting as a unit, and the plural as well as the singular number of the entities here enumerated.

2.59. "Personal service" includes those services:

2.59.1. Compensated by the payment of wages in the ordinary course of employment;

2.59.2. Rendered to the person of an individual without, at the same time, selling tangible personal property, such as nursing, barbering, shoe shining, manicuring and similar services. See Section 8.1.2 of these regulations.

2.60. "Pollution control" - See Section 2.27.1.13.a of these regulations.

2.61. "Poultry" means domestic fowl raised for meat or eggs and includes, but is not necessarily limited to, chickens, turkeys, ducks and geese; not included in this definition are crows, parrots, parakeets, swans, peafowl, exotic or wild birds not raised for meat or eggs.

2.62. "Poultry house" means a structure used solely for the purpose of sheltering domesticated birds which are kept for the production of meat or eggs, and not used for sheltering any other animals or humans.

2.63. "Private school" means an institution of learning, providing elementary or secondary educational instruction and falling within Exemption A or K of W. Va. Code '18-8-1 as a State approved alternative to compulsory public school attendance. Such schools may include parochial schools, church schools, schools operated by a religious order or other nonpublic schools.

2.64. "Production of natural resources" means the performance, by either the owner of the natural resources or another, of the act or process of exploring, developing, severing, extracting, reducing to possession and loading for shipment for sale, profit or commercial use of any natural resource products and any reclamation, waste disposal or environmental activities associated therewith.

2.64.1. Persons engaged in the construction, alteration, repair or improvement of facilities to be used by others to produce natural resources are engaged in the business of contracting and are not considered to be exploring, developing, severing, extracting, reducing to possession and loading natural resources as required by the definition of "production of natural resources" set forth in Section 2 of these regulations. See Section 107 of these regulations for information concerning the taxation of contractors.

2.65. "Professional service" means and includes an activity recognized as professional under common law, its natural and logical derivatives, an activity determined by the State Tax Division to be professional, and any activity determined by the West Virginia Legislature in W. Va. Code '11-15-1 et seq. to be professional. See Section 8.1.1 of these regulations.

2.66. "Public school" means an institution of learning established, maintained and funded by the State of West Virginia which is operated by a governmental unit of this State for the purpose of providing free elementary or secondary educational instruction to children residing in West Virginia.

2.67. "Purchase" means any transfer, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property or a taxable service, for a consideration.

2.68. "Purchase price" means the total amount for which tangible personal property or a taxable service is sold, valued in money, whether paid in money or otherwise: Provided, That cash discounts allowed and taken on sales shall not be included. However, the purchase price includes the amount of any term discount allowed by the vendor, such discount being the reduction in the purchase price if the total amount of the purchase price is paid within a specified period of time. The value of business stimulants, gifts or promotions given to induce consumers to patronize a particular establishment are not considered cash discounts. Purchase price shall not include the amount of federal, state or local tax simultaneously imposed upon the tangible personal property or service purchased.

2.69. "Purchaser" means a person who purchases tangible personal property or a taxable service.

2.70. "Real property" means lands, tenements and hereditaments, all rights thereto and interest therein except chattel interests. See W. Va. Code '2-2-10(p) (1973).

2.71. "Recreational vehicles" - See Section 2.105 of these regulations.

2.72. "Regular recurring service" - See Section 2.24.3.2b of these regulations.

2.73. "Relatively permanent" - See Section 2.24.3.2a of these regulations.

2.74. "Religious organization" means any organization whose major activity is the furtherance of religious ideals and whose real and personal property is exempt from ad valorem property taxation under W. Va. Code '11-3-9 and Article X, Section 1 of the West Virginia Constitution.

2.75. "Repair" - See Section 2.24.3.5 of these regulations.

2.76. "Retail dealer of gasoline or special fuel" means and includes, for purposes of the tax on gasoline and special fuel, any person not a distributor who sells gasoline or special fuel from a fixed location in this State to users.

2.77. "Retailer" means and includes every person engaging in the business of selling, leasing or renting tangible personal property or dispensing taxable services for use within the meaning of the use tax statute, regardless of whether the purchaser is a member of the general public or a person engaged in business, and every person engaging in the business of selling, at auction, tangible personal property owned by the person or others for use in this State: Provided, That when in the opinion of the Tax Commissioner it is necessary for the efficient administration of the use tax to regard any salesmen, representatives, truckers, peddlers or canvassers as the agents of the dealers, distributors, supervisors, employers or persons under whom they operate or from whom they obtain the tangible personal property sold by them, irrespective of whether they are making sales on their own behalf or on behalf of such dealers, distributors, supervisors, employers or persons, the Tax Commissioner may so regard them and may regard the dealers, distributors, supervisors, employers, or persons as retailers.

2.78. "Retailer engaging in business in this State" or any like term, unless otherwise limited by federal statute, means and includes but is not limited to any of the following:

2.78.1. 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, irrespective of whether such place of business or 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.

2.78.2. Any retailer soliciting orders from persons located in this State for the sale of tangible personal property or taxable services 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.

2.78.3. Any retailer who solicits orders from persons located in this State for the sale of tangible personal property or taxable services by means of advertising that is broadcast from, printed at, or distributed from, a location in this State if the advertising is primarily intended to be disseminated to consumers located in this State and is only secondarily or incidentally disseminated to bordering jurisdictions. For purposes of this paragraph, 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 rebuttably presumed to be primarily intended for dissemination to consumers located in this State.

2.78.4. Any retailer soliciting orders from persons located in this State for the sale of tangible personal property or taxable services 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, servicing or repair facility, regardless of whether such facility is owned or operated by such retailer or by a related or unrelated person.

2.78.5. Any retailer 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 tax imposed by W. Va. Code '11-15-1 et seq. or W. Va. Code '11-15A-1 et seq.

2.78.6. Any retailer who, pursuant to a contract with a cable television operator located in this State, 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.

2.78.7. A retailer without the necessary minimum contacts for a constitutionally sufficient nexus for West Virginia to require such retailer to collect and remit use tax shall not be considered a "retailer engaging in business in this State."

2.79. "Sale," "sales" or "selling" means for purposes of the use tax any transaction resulting in the purchase of tangible personal property or taxable services from a retailer or vendor, and for purposes of the consumers sales and service tax includes any transfer of the possession or ownership of tangible personal property for a consideration, including a lease or rental, when the transfer or delivery is made in the ordinary course of the transferor's business and is made to the transferee or his agent for consumption or use or any other purpose. This term embraces renting or leasing, conditional sales contracts, leases with options to purchase, and contracts under which possession of property is given to the purchaser but title is retained by the vendor or retailer as security for payment of purchase price.

2.80. "Sales tax" - See Section 2.20 of these regulations.

2.81. "School employee" means and includes all personnel employed by a school or by a county board of education whether employed on a regular full-time basis, an hourly basis or otherwise. This includes all teachers, auxiliary personnel and service personnel defined as follows:

2.81.1. "Teacher" means any teacher, supervisor, principal, superintendent, school librarian or any other person who meets the educational and other requirements set by the State for the issuance of certification to teach in a public school and who holds such certification and who is regularly employed for instructional purposes in a school in this State.

2.81.2. "Auxiliary personnel" means those persons selected and trained as a monitor aide, clerical aide, classroom aide, or general aide and who act in or assist in instructional activity, but who do not hold certifications to teach in a public school in this State.

2.81.3. "Service personnel" means those persons who serve the school in a nonprofessional or noninstructional capacity. This includes secretarial personnel, custodial personnel, maintenance personnel, transportation personnel, school lunch workers, etc.

2.82. "Seller" means a retailer and vendor and includes every person selling or leasing tangible personal property or dispensing taxable services.

2.83. "Service" or "selected service" includes all activities engaged in for other persons for a consideration, which involve the rendering of a service as distinguished from the sale of tangible personal property, but does not include contracting services, personal services, professional services, the services rendered by an employee to his employer, services furnished by corporations subject to the control of the West Virginia Public Service Commission or any service rendered for resale.

2.84. "Service personnel" - See Section 2.81.3 of these regulations.

2.85. "Special fuel" means and includes, for purposes of the tax on gasoline and special fuel, any gas or liquid, other than gasoline, used or suitable for use as fuel in an internal combustion engine. The term "special fuel" includes products commonly known as natural or casing-head gasoline and includes special fuel for heating any private residential dwelling, building or other premises; but does not include any petroleum product or chemical compound such as alcohol, industrial solvent, heavy furnace oil, lubricant, etc., not commonly used nor practicably suited for use as fuel in an internal combustion engine.

2.86. "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States.

2.87. "Subject to the control of the Public Service Commission" means a person which is subjected to regulation by such Commission, regardless of whether said Commission actually regulates such person.

2.88. "Successor" or "successor in business" means any person who directly or indirectly purchases, acquires, or succeeds to the business or the stock of goods of any person quitting, selling or otherwise disposing of a business or stock of goods.

2.89. "Structure" - See Section 2.24.3.6 of these regulations.

2.90. "Support," for purposes of determining whether an organization or corporation is exempt on its purchases, means and includes, but is not limited to:

2.90.1. Gifts, grants, contributions or membership fees;

2.90.2. Gross receipts from fund raisers which include receipts from admissions, sales of merchandise, performance of services or furnishing of facilities in any activity which is not an unrelated trade or business (within the meaning of Section 513 of the Internal Revenue Code of 1986, as amended);

2.90.3. Net income from unrelated business activities, whether or not such activities are carried on regularly as a trade or business;

2.90.4. Gross investment income as defined in Section 509(e) of the Internal Revenue Code of 1986, as amended;

2.90.5. Tax revenues levied for the benefit of a corporation or organization either paid to or expended on behalf of such organization; and

2.90.6. The value of services or facilities (exclusive of services or facilities generally furnished to the public without charge) furnished by a governmental unit referred to in Section 170(c)(1) of the Internal Revenue Code of 1986, as amended, to an organization without charge. This term does not include any gain from the sale or other disposition of property which would be considered as gain from the sale or exchange of a capital asset, or the value of an exemption from any federal, state or local tax or any similar benefit.

2.91. "Supply tank" means, for purposes of the tax on gasoline and special fuel, any receptacle on a motor vehicle from which gasoline or special fuel is supplied for the propulsion of the vehicle or equipment located thereon, exclusive of a cargo tank. A supply tank includes a separate compartment of a cargo tank used as a supply tank, and any auxiliary tank or receptacle of any kind or cargo tank, from which gasoline or special fuel is supplied for the propulsion of the vehicle, whether or not such tank or receptacle is directly connected to the fuel supply line of the vehicle.

2.92. "Tangible personal property" means personal property which may be seen, weighed, measured, felt, or touched, or is in any other manner perceptible to the senses, and includes tangible goods, wares and merchandise.

2.92.1. Wherever the words "tangible personal property" or "property" appear, the same shall include the words "or taxable services," where the context so requires, in accordance with W. Va. Code '11-15A-2(a).

2.93. "Tank wagon" means and includes, for purposes of the tax on gasoline and special fuel any motor vehicle or vessel with a cargo tank or cargo tanks ordinarily used for making deliveries of gasoline or special fuel, or both, for sale or use.

2.94. "Tax" includes the consumers sales and service tax imposed by W. Va. Code '11-15-1 et seq., the use tax imposed by W. Va. Code '11-15A-1 et seq., and additions to tax, interest and penalties imposed by W. Va. Code '11-10-1 et seq.

2.95. "Tax Commissioner" or "Commissioner" means the State Tax Commissioner of West Virginia or his delegate.

2.96. "Taxable services" means all services other than those services which are subject to the per se exemptions provided in Section 9.2 of these regulations, or which are otherwise exempted by law.

2.97. "Taxpayer" includes any person who is liable for the consumers sales and service tax imposed by W. Va. Code '11-15-1 et seq., or who is subject to the use tax imposed by W. Va. Code '11-15A-1 et seq., whether acting for himself or as an agent or fiduciary.

2.98. "Teacher" - See Section 2.81.1 of these regulations.

2.99. "Textbook" means a book or manual of instruction containing a presentation of the principles of a subject and which is used as a basis of instruction.

2.100. "This State" means the State of West Virginia.

2.101. "Transportation" means the act or process of conveying for consideration, as a commercial enterprise, passengers or goods from one place or geographical location to another place or geographical location.

2.102. "Transmission" means the act or process of causing liquid, natural gas or electricity to pass or be conveyed for consideration from one place or geographical location to another place or geographical location through a pipeline or other medium for commercial purposes. For purposes of this definition, the word "medium" refers to the stationary mode by which liquid, natural gas or electricity moves from one location to another; the term includes such modes as pipelines and wires, but it specifically excludes such modes of transportation as tank trucks and barges.

2.103. "Use" means and includes the exercise by any person of any right or power over tangible personal property or taxable services which is incident to the ownership, possession or enjoyment of such property or services, or by any transaction in which possession of or the exercise of any right or power over tangible personal property or taxable services is acquired for a consideration, including any lease, rental or conditional sale of tangible personal property. As used in this definition, "enjoyment" includes a purchaser's right to direct the disposition of the property or services, whether or not the purchaser has possession of the property. The term "use" does not include the keeping, retaining or exercising of any right or power over tangible personal property solely for the purpose of subsequently transporting it outside the State for use thereafter solely outside this State.

2.104. "Use tax" means the tax imposed by W. Va. Code '11-15A-1 et seq.

2.105. "Vehicle" means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks and includes recreational vehicles. For purposes of these regulations, "recreational vehicle" means a motorboat, motorboat trailer, all-terrain vehicle, travel trailer, fold down camping trailer, motor home, snowmobile or any other vehicle included within the definition of recreational vehicle as defined in W. Va. Code '17A-1-1.

2.106. "Vendor" means any person, whether selling at retail to the general public or otherwise selling to a person engaged in any business, who is engaged in this State in furnishing or rendering services or making sales of tangible personal property.

2.107. "Water pollution" - See Section 2.27.1.13.d of these regulations.

2.108. "Weight loss program" means and includes the various activities engaged in for the purpose of assisting, directing or guiding an individual in losing weight primarily through diet regulation, but may include a physical exercise regimen. A weight loss program may occur totally at a weight loss center or it may include activities occurring elsewhere. See Section 75 of these regulations for further information.

2.109. "Weight loss center" means a primary location where weight loss programs occur.

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