Tax Levied for Tangible Property and Services in West Virginia in Auction

West Virginia Statutes
Chapter 11. TAXATION (§§ 11-1-1 - 11-27-38)
Article 15A. USE TAX (§§ 11-15A-1 - 11-15A-29)

Article 15A. USE TAX [Combined]

§ 11-15A-1. [Effective7/12/2013] Definitions
§ 11-15A-1a. Legislative findings
§ 11-15A-2. Imposition of tax; six percent tax rate; inclusion of services as taxable; transition rules; allocation of tax and transfers
§ 11-15A-2a. Tax on value of property used or consumed in this state
§ 11-15A-2b. Tax on the manufacture, sale and installation of modular dwellings
§ 11-15A-3. Exemptions

Chapter 11. TAXATION
Article 15A. USE TAX

§ 11-15A-1. [Effective7/12/2013] Definitions

(a)    General. -- When used in this article and article fifteen of this chapter, terms defined in subsection (b) of this section have the meanings ascribed to them in this section, except in those instances where a different meaning is provided in this article or the context in which the word is used clearly indicates that a different meaning is intended by the Legislature:
(b)    
(1)     "Business" means any activity engaged in by any person, or caused to be engaged in by any person, with the object of direct or indirect economic gain, benefit or advantage, and includes any purposeful revenue generating activity in this state;
(2)     "Consumer" means any person purchasing tangible personal property, custom software or a taxable service from a retailer as defined in paragraph (7) of this subsection or from a seller as defined in section two, article fifteen-b of this chapter;
(3)     "Lease" includes rental, hire and license;
(4)     "Person" includes any individual, firm, partnership, joint venture, joint stock company, association, public or private corporation, limited liability company, limited liability partnership, 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;
(5)     "Purchase" means any transfer, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, for a consideration;
(6)     "Purchase price" means the measure subject to the tax imposed by this article and has the same meaning as sales price;
(7)     "Retailer" means and includes every person engaging in the business of selling, leasing or renting tangible personal property or custom software or furnishing a taxable service for use within the meaning of this article, or in the business of selling, at auction, tangible personal property or custom software 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 this article to regard any salespersons, representatives, truckers, peddlers or canvassers as the agents of the dealers, distributors, supervisors, employees 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 the 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 for purposes of this article;
(8)     "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:
(A)     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 the place of business or agent is located here permanently or temporarily, or whether the retailer or subsidiary is admitted to do business within this state pursuant to article fifteen, chapter thirty-one-d of this code or article fourteen, chapter thirty-one-e of this code; or
(B)     On and after January 1, 2014, any retailer that is related to, or part of a unitary business with, a person, entity or business that, without regard to whether the retailer is admitted to do business in this state pursuant to article fifteen, chapter thirty-one-d of this code or article fourteen, chapter thirty-one-e of this code, is a subsidiary of the retailer, or is related to, or unitary with, the retailer as a related entity, a related member or part of a unitary business, all as defined in article twenty four, section three-a of this chapter;
(i)     That, pursuant to an agreement with or in cooperation with the related retailer, maintains an office, distribution house, sales house, warehouse or other place of business in this state;
(ii)     That performs services in this state in connection with tangible personal property or services sold by the retailer, or any related entity, related member or part of the unitary business;
(iii)     That, by any agent, or representative (by whatever name called), or employee, performs services in this state in connection with tangible personal property or services sold by the retailer, or any related entity, related member or part of the unitary business; or
(iv)     That directly, or through or by an agent, representative or employee located in, or present in, this state, solicits business in this state for or on behalf of the retailer, or any related entity, related member or part of the unitary business.
(C)     For purposes of paragraph (B) of this subdivision, the term "service" means and includes, but is not limited to, customer support services, help desk services, call center services, repair services, engineering services, installation service, assembly service, delivery service by means other than common carrier or the United States Postal Service, technical assistance services, the service of investigating, handling or otherwise assisting in resolving customer issues or complaints while in this state, the service of operating a mail order business or telephone, Internet or other remote order business from facilities located within this state, the service of operating a website or Internet-based business from a location within the state, or any other service.
(9)     "Sale" means any transaction resulting in the purchase or lease of tangible personal property, custom software or a taxable service from a retailer;
(10)     "Seller" means a retailer, and includes every person selling or leasing tangible personal property or custom software or furnishing a taxable service in a transaction that is subject to the tax imposed by this article;
(11)     "Streamlined sales and use tax agreement" or "agreement," when used in this article, has the same meaning as when used in article fifteen-b of this chapter, except when the context in which the word agreement is used clearly indicates that a different meaning is intended by the Legislature;
(12)     "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, water, gas, and prewritten computer software;
(13)     "Tax commissioner" or "commissioner" means the State Tax Commissioner, or his or her delegate. The term "delegate" in the phrase "or his or her delegate," when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Division duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article or rules promulgated for this article;
(14)     "Taxpayer" includes any person within the meaning of this section, who is subject to a tax imposed by this article, whether acting for himself or herself or as a fiduciary; and
(15)     "Use" means and includes:
(A)     The exercise by any person of any right or power over tangible personal property or custom software incident to the ownership, possession or enjoyment of the property, or by any transaction in which possession of or the exercise of any right or power over tangible personal property, custom software or the result of a taxable service is acquired for a consideration, including any lease, rental or conditional sale of tangible personal property or custom software; or
(B)     The use or enjoyment in this state of the result of a taxable service. As used in this subdivision, "enjoyment" includes a purchaser's right to direct the disposition of the property or the use of the taxable service, whether or not the purchaser has possession of the property.
The term "use" does not include the keeping, retaining or exercising any right or power over tangible personal property, custom software or the result of a taxable service for the purpose of subsequently transporting it outside the state for use thereafter solely outside this state.
(c)    Additional definitions. -- Other terms used in this article are defined in articles fifteen and fifteen-b of this chapter, which definitions are incorporated by reference into article fifteen-a. Additionally, other sections of this article may define terms primarily used in the section in which the term is defined.

Cite as W. Va. Code § 11-15A-1

11-15A-1a. Legislative findings

The Legislature hereby finds and declares that:
(1) It is the intent of the Legislature that the use tax imposed by the provisions of article fifteen-a and the consumers sales tax imposed by the provisions of article fifteen of this chapter be complementary laws and wherever possible be construed and applied to accomplish the intent as to the imposition, administration and collection of these taxes; and
(2) On and after the first day of January, two thousand four, the taxes levied by this article and article fifteen of this chapter shall also be administered and collected in accordance with the provisions of article fifteen-b of this chapter.

§ 11-15A-2a. Tax on value of property used or consumed in this state

(a)     Except as otherwise provided, a person who produces for sale, profit or commercial use, any natural resource, product or manufactured product, and uses or consumes such natural resource, product or manufactured product, in this state shall make returns of the gross value of the natural resource, product or manufactured product, so used or consumed by him in this state, and pay the tax imposed by this article, when such use or consumption is not otherwise exempt under this article.
(b)     The tax commissioner shall promulgate such uniform and equitable rules as he deems necessary for determining the gross value upon which the tax imposed by this article is levied in the absence of a sale, which value shall correspond as nearly as possible to the gross proceeds from the sale of similar products of like quality or character by the same person or by another person.
(c)     A person who purchases or leases machinery or equipment or other tangible personal property for use in another state and then uses or consumes such property in this state shall pay the tax imposed by this article on the value of the property so used or consumed in this state. The tax commissioner shall promulgate such uniform and equitable rules as he deems necessary for determining the measure of the tax imposed by this article with respect to such property.
(d)     The provisions of this section shall apply to property used or consumed in this state on or after the first day of May, one thousand nine hundred eighty-nine.

§ 11-15A-2b. Tax on the manufacture, sale and installation of modular dwellings

(a) Notwithstanding the provisions of section two-a of this article, persons engaged in the manufacture and sale or the manufacture, sale and installation of a modular dwelling shall pay the tax imposed by this article only on the value of the building supplies and materials used in the manufacture and installation of the modular dwelling and the preparation of the site for permanent installation, and not on the labor involved in such activities. For purposes of this section, the value of the building supplies and materials shall be the actual cost of the building supplies and materials. If the manufacturer asserts an exemption at the time of purchase of the building supplies and materials, the manufacturer shall remit the tax due on the value of the building supplies and materials used in the manufacture of the modular dwelling at the time of sale of the modular dwelling. If the manufacturer pays the tax at the time of purchase of the building supplies and materials, the manufacturer is responsible for maintaining records evidencing payment of the tax. Failure to maintain such records will result in the tax being assessed to the manufacturer.
(b) Persons engaged in the sale and installation of a modular dwelling shall pay the tax imposed by this article on only the value of the materials used in the manufacture and installation of the modular dwelling and the preparation of the site for permanent installation and not on the labor involved in such activities. For purposes of this section, the value of the materials used in the manufacture of the modular dwelling shall be the actual cost of the materials and building supplies to the manufacturer as delineated on the invoice to the purchaser. If the actual cost of the materials is not available, then the cost of the materials used in the manufacture of the modular dwelling shall be sixty percent of the total cost of the modular dwelling. A credit will be given to the purchaser for any sales or use tax that has been lawfully imposed by another state and paid by the manufacturer on the purchase of building supplies and materials used in the manufacture of the modular dwelling. If the manufacturer pays the tax at the time of purchase of the building supplies and materials, the manufacturer is responsible for maintaining records evidencing payment of the tax and delineating the amount on the invoice. Failure to maintain such records will result in the credit being denied.
(c) Definition of modular dwelling.- For purposes of this article, a modular dwelling shall include, but not be limited to, single and multi-family houses, apartment units and commercial dwellings comprised of two or more sections without a permanent chassis, built to a state or model code other than the National Manufactured Housing Construction and Safety Standards Act of 1974,1 which are primarily constructed at a location other than the permanent site at which they are to be finally assembled and which are shipped to the site with most permanent components in place.

Cite as W. Va. Code § 11-15A-2a

§ 11-15A-3. Exemptions

(a)     The use in this state of the following tangible personal property, custom software and services is hereby specifically exempted from the tax imposed by this article to the extent specified:
(1)     All articles of tangible personal property and custom software brought into the state of West Virginia by a nonresident individual thereof for his or her use or enjoyment while temporarily within this state or while passing through this state, except gasoline and special fuel: Provided, That fuel contained in the supply tank of a motor vehicle that is not a motor carrier may not be taxable.
(2)     Tangible personal property, custom software or services, the gross receipts from the sale of which are exempt from the sales tax by the terms of article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, and the property or services are being used for the purpose for which it was exempted.
(3)     Tangible personal property, custom software or services, the gross receipts or the gross proceeds from the sale of which are required to be included in the measure of the tax imposed by article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, and upon which the tax imposed by said article fifteen has been paid.
(4)     Tangible personal property, custom software or services, the sale of which in this state is not subject to the West Virginia consumers sales tax.
(5)     Fifty percent of the measure of tax on mobile homes utilized by the owners thereof as their principal year-round residence and dwelling.
(b)     The provisions of this section, as amended in the year two thousand three, shall apply on and after the first day of January, two thousand four.

Cite as W. Va. Code § 11-15A-3