Current through Register Vol. XLI, No. 38, September 20, 2024
3.1. Wholesalers and Sub-jobbers - Every
wholesaler or sub-jobber, whether a resident or non-resident of this State,
engaging in the business of selling tax-paid tobacco products in this State
shall first apply for and obtain a Business Registration Certificate and the
license required by W. Va. Code §
11-12-4a
for the purpose of selling tax-paid tobacco products and cigarette wrappers.
Application for the Business Registration Certificate and license shall be made
on the forms provided by the Tax Commissioner.
3.1.1. A wholesaler may not sell tax-paid
tobacco products to any person in this State other than another wholesaler, a
sub-jobber or a retail dealer, and a person in this State other than a
wholesaler or sub-jobber may not sell tax-paid tobacco products to a retail
dealer.
3.1.2. The use or
application of any kind or type of West Virginia tax stamp other than those
authorized by the Tax Commissioner shall be considered a violation of this rule
and subject to the penalties provided in W. Va. Code §
11-17-1 et
seq.
3.1.3. Unless they have been
previously affixed, each wholesaler in this State shall affix the required West
Virginia tax stamps prior to delivery of any cigarettes to any person in this
State.
3.2. Retail
Dealers - No retail dealer may offer for sale or sell any tax-paid tobacco
products in West Virginia without first having applied for and obtained a
Business Registration Certificate and the license required by W. Va. Code
§
11-12-4a
for the purpose of selling tobacco products and cigarette wrappers. Application
shall be made on forms prescribed and furnished by the Tax
Commissioner.
3.3. Tobacco products
or cigarette wrapper vending machine operators - Each vending machine operator
shall apply for and obtain a Business Registration Certificate and the license
required by W. Va. Code §
11-12-4a
for the purpose of selling tobacco products and cigarette wrappers before
selling or offering for sale any tax-paid tobacco products or cigarette
wrappers through a vending machine. Whenever any cigarette vending machine
operator purchases tax-not-paid tobacco products directly from the
manufacturer, the operator is considered to be a wholesaler and is liable for
both the payment of the proper amount of excise tax and affixing the required
stamps.
3.3.1. Although tobacco product
vending machine operators, like wholesalers, purchase tax-not-paid tobacco
products directly from the manufacturer, the sale of tobacco products through
vending machines is construed as a sale at retail. Therefore, vending machine
operators shall also be classified as retail dealers.
3.3.2. It is the location of the vending
machine and not the vending machine that is subject to Business Registration.
The person responsible for stocking the machine and collecting the money from
sales shall obtain the Business Registration Certificate for the operation of a
tobacco products vending machine.
3.3.2.a. If
the vending machine is owned by a person who leases the machine to another
person who then places the machine at a business location and the lessee
assures the machine is stocked and collects the money from the sales, the
lessee shall obtain a Business Registration Certificate for the
location.
3.3.2.b. If the vending
machine is owned by a person who leases the machine to another person who then
leases the machines to a business establishment and the business establishment
assures the machine is stocked and collects the money from the sales, the
machine is covered by the business establishment's Business Registration
Certificate.
3.3.2.c. If the
vending machine is owned by a person who places it at a business location and
assures the machine is stocked and collects the money from the sales, the owner
of the machine shall obtain a Business Registration Certificate for the
location.
3.3.2.d. If the vending
machine is owned by a person who leases the machine to a business
establishment, and the business establishment assures the machine is stocked
and collects the money from the sales, the machine is covered by the business
establishment's Business Registration Certificate.
3.3.2.e. If the vending machine is owned by
the business establishment where it is situated, the machine is covered by the
establishment's Business Registration Certificate.
3.3.2.f. If a person has more than one
vending machine at a location, only one Business Registration Certificate is
required for all of the machines at that location.
3.3.3. Each tobacco products vending machine
operator in this State shall for each shipment of tobacco products obtain an
invoice showing the amount and value of the shipment, the date of receipt of
the shipment, and the name of the shipper. The operator shall retain the
invoice for a period of three years, and the invoice is subject to inspection
by the Tax Commissioner. The operator shall file a monthly report showing total
purchases of tax-paid and of tax-not-paid tobacco products and sales of tobacco
products, and any other information the Tax Commissioner may require on forms
provided by the Tax Commissioner.
3.3.4. Records of tobacco product vending
machine operators are subject to audit by the Tax Commissioner and the vending
machine operators shall make records available at any time during regular
business hours for that purpose.
3.3.5. If tax-not-paid tobacco products are
found in any vending machine, both the tobacco products and the vending machine
are contraband goods and may be seized by the Tax Commissioner, or by any peace
officer of the State at the direction of the Tax Commissioner, without a
warrant.
3.3.6. No tobacco product
vending machines shall be placed in operation within this State that is not
constructed to display at least one package of tobacco product in each column.
All cigarettes shall be placed in the machines in such a manner that when they
are displayed, the stamps affixed to the package are clearly visible.
3.4. A tobacco grower is
considered to not be a manufacturer, wholesaler, subjobber, retailer or vending
machine operator and therefore is not subject to the licensing required by W.
Va. Code §
11-12-4a
unless the tobacco grower is actually performing the activities of a
manufacturer, wholesaler, subjopbber, retailer or vending machine
operator.
