Current through Register Vol. XLI, No. 38, September 20, 2024
5.1. Any
person having a right or claim to the exemption set forth in this rule may
claim the exemption by:
5.1.a. First paying to
the vendor the tax imposed by this article and then applying to the Tax
Commissioner for a refund or credit; or
5.1.b. Providing to the vendor his or her
West Virginia direct pay permit number, as provided in §11-15-9d and §11-15a-3d of
the West Virginia Code and W. Va. Code State R. §110-15-9c; or
5.1.c. A person having a right or claim to
the exemptionset forth in this Rule may, in lieu of paying the sales tax and
filing a claim for refund, execute a certificate of exemption, in the form
required by the Tax Commissioner, and deliver it to the vendor of the property
or service in the manner required by the Tax Commissioner. The Tax Commissioner
finds that the requirement that permission to execute such a certificate be
granted specifically upon application of the Tax Commissioner is unnecessary,
and thereby generally grants permission to execute such a
certificate.
5.2. Any
person having a right or claim to the exemption set forth in this rule may
apply for a refund or credit under subdivision 5.1.a., by timely filing a claim
for refund or credit of the consumers sales and service tax or the use tax
overpayments on such form and in such manner as the Tax Commissioner may
require and in accordance with the requirements of §11-10-1, et seq.
and §11-15-1, et seq.
of the West Virginia Code and W. Va. Code State R. §110-15-1, et
seq., and W. Va. Code State R. §110-10L-1, et
seq.
5.3. Any person
having a right or claim to the exemption set forth in this rule may use an
exemption certificate as set forth under subdivision 5.1.c., as follows:
5.3.a. To purchase tangible personal property
or services using an exemption certificate, a person must:
5.3.a.1. Apply for and obtain a valid West
Virginia Business Registration Certificate; and
5.3.a.2. Properly complete an Exemption
Certificate, in the form required by the Tax Commissioner, and present it to
the vendor or retailer.
5.3.b. If the steps under subdivision 5.3.a.
have been completed, the person claiming the exemption has applied for and
received permission to use an exemption certificate under subdivision 5.1.c.:
5.3.b.1. If the Tax Commissioner believes
that the exemption certificate was incomplete, deficient or otherwise
erroneous, or that the taxpayer was not entitled to claim the exemption for any
reason, the Tax Commissioner may proceed to investigate and determine or
estimate the tax liability and make an assessment therefor as permitted under
W. Va. Code §11-10-1, et
seq.
5.3.b.2. In order
that the Tax Department may verify the taxable and nontaxable sales upon audit,
a taxpayer claiming an exemption under this rule must retain the appropriate
books and records supporting its claim for exemption for at least three (3)
years, or for so long as the taxable period remains open for assessment or
refund, whichever is greater.
5.3.c. In order that the Tax Department may
verify a vendor's or a retailer's taxable and nontaxable sales upon audit, it
is necessary that such persons retain executed exemption certificates and other
appropriate books and records for at least three (3) years or for so long as
the taxable period remains open for assessment or refund whichever is greater.
An exemption certificate, to be valid, must be given by the vendee and accepted
by the vendor at the time of the sale and not thereafter. If a vendor lists
nontaxable sales or services for which he has no exemption certificates or
material purchase certificate, the Tax Department will presume such sales were
taxable and make an assessment of tax against the vendor.