Current through Register Vol. XLI, No. 38, September 20, 2024
3.1. "Alcoholic
beverages" means beverages that are suitable for human consumption and contain
one half of one percent or more of alcohol by volume.
3.2. "Bundled transaction" means the retail
sale of two or more products, except real property and services to real
property, where the products are otherwise distinct and identifiable and the
products are sold for one nonitemized price. A "bundled transaction" does not
include the sale of any products in which the "sales price" varies, or is
negotiable, based on the selection by the purchaser of the products included in
the transaction.
3.2.1. "Distinct and
identifiable products" does not include:
3.2.1.a. Packaging - such as containers,
boxes, sacks, bags, and bottles - or other materials - such as wrapping,
labels, tags, and instruction guides - that accompany the "retail sale" of the
products and are incidental or immaterial to the "retail sale" of those
products. Examples of packaging that are incidental or immaterial include
grocery sacks, shoeboxes, dry cleaning garment bags and express delivery
envelopes and boxes;
3.2.1.b. A
product provided free of charge with the required purchase of another product.
A product is "provided free of charge" if the "sales price" of the product
purchased does not vary depending on the inclusion of the product "provided
free of charge"; or
3.2.1.c. Items
included in the member state's definition of "sales price," as defined in this
section.
3.2.2. The term
"one nonitemized price" does not include a price that is separately identified
by product on binding sales or other supporting sales-related documentation
made available to the customer in paper or electronic form including, but not
limited to, an invoice, bill of sale, receipt, contract, service agreement,
lease agreement, periodic notice of rates and services, rate card, or price
list.
3.2.3. A transaction that
otherwise meets the definition of a "bundled transaction" is not a "bundled
transaction" if it is:
3.2.3.a. The "retail
sale" of tangible personal property and a service where the tangible personal
property is essential to the use of the service, and is provided exclusively in
connection with the service, and the true object of the transaction is the
service;
3.2.3.b. The "retail sale"
of services where one service is provided that is essential to the use or
receipt of a second service and the first service is provided exclusively in
connection with the second service and the true object of the transaction is
the second service;
3.2.3.c. A
transaction that includes taxable products and nontaxable products and the
"purchase price" or "sales price" of the taxable products is de minimis.
3.2.3.c.1. "De minimis" means the seller's
"purchase price" or "sales price" of the taxable products is ten percent or
less of the total "purchase price" or "sales price" of the bundled
products.
3.2.3.c.2. Sellers shall
use either the "purchase price" or the "sales price" of the products to
determine if the taxable products are de minimis. Sellers may not use a
combination of the "purchase price" and "sales price" of the products to
determine if the taxable products are de minimis.
3.2.3.d. Sellers shall use the full term of a
service contract to determine if the taxable products are de minimis;
3.2.3.e. A transaction that includes products
taxable at the general rate of tax and food or food ingredients taxable at a
lower rate of tax and the "purchase price" or "sales price" of the products
taxable at the general sales tax rate is de minimis.
3.2.3.e.1. "De minimis" means the seller's
"purchase price" or "sales price" if the products taxable at the general Sales
Tax rate is ten percent or less of the total "purchase price" or "sales price"
of the bundled products.
3.2.3.e.2.
Sellers shall use either the "purchase price" or the "sales price" of the
products to determine if the products taxable at the general rate of tax are de
minimis. Sellers may not use a combination of the "purchase price" and "sales
price" of the products to determine if the products taxable at the general rate
of tax are de minimis.
3.2.3.e.3.
Sellers shall use the full term of a service contract to determine if the
products taxable at the general rate of tax are de minimis; or
3.2.3.f. The "retail sale" of
exempt tangible personal property, or food and food ingredients taxable at a
lower rate of tax, and tangible personal property taxable at the general rate
of tax where:
3.2.3.f.1. The transaction
includes "food and food ingredients", "drugs", "durable medical equipment",
"mobility enhancing equipment", and "prosthetic devices" all as defined in W.
Va. Code §
11-15B-1 et
seq.; and
3.2.3.f.2. Where the
seller's "purchase price" or "sales price" of the taxable tangible personal
property, taxable at the general rate of tax, is fifty percent or less of the
total "purchase price" or "sales price" of the bundled tangible personal
property. Sellers may not use a combination of the "purchase price" and "sales
price" of the tangible personal property when making the fifty percent
determination for a transaction.
3.3. "Candy" means a preparation of sugar,
honey or other natural or artificial sweeteners in combination with chocolate,
fruits, nuts or other ingredients or flavorings in the form of bars, drops or
pieces. "Candy" does not include any preparation containing flour and requires
no refrigeration.
3.4. "Dietary
supplement" means any product, other than "tobacco", intended to supplement the
diet that:
3.4.1. Contains one or more of the
following dietary ingredients:
3.4.1.a. A
vitamin;
3.4.1.b. A
mineral;
3.4.1.c. A herb or other
botanical;
3.4.1.d. An amino
acid;
3.4.1.e. A dietary substance
for use by humans to supplement the diet by increasing the total dietary
intake; or
3.4.1.f. A concentrate,
metabolite, constituent, extract or combination of any ingredient described in
paragraphs a through e of this subdivision;
3.4.2. Is intended for ingestion in tablet,
capsule, powder, softgel, gelcap, or liquid form, or if not intended for
ingestion in such a form, is not represented as conventional food and is not
represented for use as a sole item of a meal or of the diet; and
3.4.3. Is required to be labeled as a dietary
supplement, identifiable by the "Supplemental Facts" box found on the label as
required pursuant to 21 CFR §101.36, or in any successor section of the
Code of Federal Regulations.
3.5. "Drug" means a compound, substance or
preparation, and any component of a compound, substance or preparation, other
than food and food ingredients, dietary supplements or alcoholic beverages:
3.5.1. Recognized in the official United
States pharmacopoeia, official homeopathic pharmacopoeia of the United States,
or official national formulary, and supplement to any of them;
3.5.2. Intended for use in the diagnosis,
cure, mitigation, treatment, or prevention of disease in humans; or
3.5.3. Intended to affect the structure or
any function of the human body.
3.6. "Food and food ingredients" means
substances, whether in liquid, concentrated, solid, frozen, dried or dehydrated
form, that are sold for ingestion or chewing by humans and are consumed for
their taste or nutritional value. "Food and food ingredients" does not include
alcoholic beverages, prepared food, or tobacco.
3.7. "Food sold through a vending machine"
means food dispensed from a machine or other mechanical device that accepts
payment.
3.8. "NAICS" means North
American Industry Classification Code.
3.9. "Person" means an individual, trust,
estate, fiduciary, partnership, limited liability company, limited liability
partnership, corporation or any other legal entity.
3.10. "Prepared food" means:
3.10.1. Food sold in a heated state or heated
by the seller;
3.10.2. Two or more
food ingredients mixed or combined by the seller for sale as a single item;
or
3.10.3. Food sold with eating
utensils provided by the seller, including plates, knives, forks, spoons,
glasses, cups, napkins, or straws. A plate does not include a container or
packaging used to transport the food.
3.10.4. "Prepared food" does not include
3.10.4.a. Food that is only cut, repackaged,
or pasteurized by the seller, and eggs, fish, meat, poultry, and foods
containing these raw animal foods requiring cooking by the consumer as
recommended by the Food and Drug Administration in chapter 3, part 401.11 of
its Food Code of 2001 so as to prevent food borne illnesses;
3.10.4.b. Food sold by a seller whose proper
primary NAICS classification is manufacturing in sector 311, except subsection
3118 (bakeries);
3.10.4.c. Food
sold in an unheated state by weight or volume as a single item; or
3.10.4.d. Bakery items, including bread,
rolls, buns, biscuits, bagels, croissants, pastries, donuts, danish, cakes,
tortes, pies, tarts, muffins, bars, cookies,
tortillas.
3.11. "Purchase price" means the measure
subject to the tax imposed by W. Va. Code §§
11-15-1
et seq., or 11-15A-1 et seq., and has the same meaning as sales
price.
3.12. "Purchaser" means a
person to whom a sale of personal property is made or to whom a service is
furnished.
3.13. "Retail sale" or
"sale at retail" means:
3.13.1. Any sale or
lease for any purpose other than for resale as tangible personal property,
sublease or subrent; and
3.13.2.
Any sale of a service other than a service purchased for resale.
3.14. "Sales price" means the
measure subject to the Sales Tax and includes the total amount of
consideration, including cash, credit, property and services, for which
personal property or services are sold, leased or rented, valued in money,
whether received in money or otherwise, without any deduction for the
following:
3.14.1. The seller's cost of the
property sold;
3.14.2. The cost of
materials used, labor or service cost, interest, losses, all costs of
transportation to the seller, all taxes imposed on the seller, and any other
expense of the seller;
3.14.3.
Charges by the seller for any services necessary to complete the sale, other
than delivery and installation charges;
3.14.4. Delivery charges;
3.14.5. Installation charges;
3.14.6. The value of exempt personal property
given to the purchaser where taxable and exempt personal property have been
bundled together and sold by the seller as a single product or piece of
merchandise; and
3.14.7. Credit for
the fair market value of any trade-in.
3.14.7.a. "Sales price" does not include:
3.14.7.a.1. Discounts, including cash, term,
or coupons that are not reimbursed by a third party that are allowed by a
seller and taken by a purchaser on a sale;
3.14.7.a.2. Interest, financing and carrying
charges from credit extended on the sale of personal property, goods or
services, if the amount is separately stated on the invoice, bill of sale or
similar document given to the purchaser; and
3.14.7.a.3. Any taxes legally imposed
directly on the consumer that are separately stated on the invoice, bill of
sale or similar document given to the purchaser.
3.15. "Sales Tax" means
the tax levied under W. Va. Code §
11-15-1
et seq.
3.16. "Seller" means any
person making sales, leases or rentals of personal property or
services.
3.17. "Service" includes
all nonprofessional 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,
personal services, services rendered by an employee to his or her employer, any
service rendered for resale, or any service furnished by a business that is
subject to the control of the Public Service Commission when the service or the
manner in which it is delivered is subject to regulation by the Public Service
Commission of this State. The term "service" or "selected service" does not
include payments received by a vendor of tangible personal property as an
incentive to sell a greater volume of such tangible personal property under a
manufacturer's, distributor's or other third-party's marketing support program,
sales incentive program, cooperative advertising agreement or similar type of
program or agreement, and these payments are not considered to be payments for
a "service" or "selected service" rendered, even though the vendor may engage
in attendant or ancillary activities associated with the sales of tangible
personal property as required under the programs or agreements.
3.18. "Soft drink" means nonalcoholic
beverages that contain natural or artificial sweeteners. "Soft drinks" do not
include beverages that contain milk or milk products, soy, rice or similar milk
substitutes, or greater than fifty percent of vegetable or fruit juice by
volume.
3.19. "Tangible personal
property" means personal property that can be seen, weighed, measured, felt, or
touched, or that is in any manner perceptible to the senses. "Tangible personal
property" includes, but is not limited to, electricity, steam, water, gas and
prewritten computer software.
3.20.
"Tax" includes all taxes levied under W. Va. Code §§
11-15-1
et seq., or
11-15A-1
et seq., and additions to tax, interest and penalties levied under article ten
of this chapter.
3.21. "Tobacco"
means cigarettes, cigars, chewing or pipe tobacco or any other item that
contains tobacco.
3.22. "Use Tax"
means the tax levied under W. Va. Code § 11-15A-1 et seq.
3.23. "Vendor" means any person furnishing
services taxed by W. Va. Code §§
11-15-1
et seq., or 11-15A-1 et seq., or making sales of tangible personal property or
custom software. "Vendor" and "seller" are used interchangeably in W. Va. Code
§§
11-15-1
et seq., and 11-15A-1 et seq.
