IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2021 Term

No. 20-0488

JOHN KEENER D/B/A 

MOUNTAINEER INSPECTION SERVICES, LLC,

Petitioner

V. 

MATTHEW IRBY, 

STATE TAX COMMISSIONER OF WEST VIRGINIA,

Respondent

_________________________________________________________

Appeal from the Circuit Court of Taylor County

The Honorable Shawn D. Nines, Judge

Civil Action No. 18-P-57

AFFIRMED, IN PART; REVERSED, IN PART

_________________________________________________________

Submitted: September 15, 2021

Filed: November 8, 2021

Ronald G. Kramer

Kramer Legal Group, PLLC 

Bridgeport, West Virginia

Allison S. McClure

McClure Law PLLC

Clarksburg, West Virginia 

Attorneys for Petitioner

Patrick Morrisey

Attorney General

William C. Ballard

Assistant Attorney General

Andrew L. Ellis

Assistant Attorney General

Charleston, West Virginia

Attorneys for Respondent

FILED

November 8, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Henry R. Glass, III

Glass Law Offices

South Charleston, West Virginia

Attorney for Amicus Curiae,

West Virginia Association of Home 

Inspectors

CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE HUTCHISON and JUSTICE WOOTON concur, in part, and dissent, in 

part, and reserve the right to file separate opinions.
i

SYLLABUS BY THE COURT

1. “Interpreting a statute or an administrative rule or regulation presents 

a purely legal question subject to de novo review.” Syllabus point 1, Appalachian Power 

Co. v. State Tax Department of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).

2. “Interpretations of statutes by bodies charged with their 

administration are given great weight unless clearly erroneous.” Syllabus point 4, Security 

National Bank & Trust Co. v. First West Virginia Bancorp, Inc., 166 W. Va. 775, 277 

S.E.2d 613 (1981). 

3. “The primary object in construing a statute is to ascertain and give 

effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen’s

Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975). 

4. “When a statute is clear and unambiguous and the legislative intent is 

plain, the statute should not be interpreted by the courts, and in such case it is the duty of 

the courts not to construe but to apply the statute.” Syllabus point 5, State v. General

Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 

(1959). 
ii

5. “A statute that is ambiguous must be construed before it can be 

applied.” Syllabus point 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). 

6. “Where a person claims an exemption from a law imposing a license 

or tax, such law is strictly construed against the person claiming the exemption.” Syllabus 

point 2, State ex rel. Lambert v. Carman, State Tax Commissioner, 145 W. Va. 635, 116

S.E.2d 265 (1960). 

7. “A valid legislative rule is entitled to substantial deference by the 

reviewing court. As a properly promulgated legislative rule, the rule can be ignored only 

if the agency has exceeded its constitutional or statutory authority or is arbitrary or 

capricious. W. Va. Code, 29A-4-2 (1982).” Syllabus point 4, in part, Appalachian Power 

Co. v. State Tax Department of West Virginia., 195 W. Va. 573, 466 S.E.2d 424 (1995).

8. “A regulation that is proposed by an agency and approved by the 

Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures 

Act, W. Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and effect 

of law.” Syllabus point 5, Smith v. West Virginia Human Rights Commission, 216 W. Va. 

2, 602 S.E.2d 445 (2004). 
1

Jenkins, Chief Justice:

Petitioner John Keener d/b/a Mountaineer Inspection Services, LLC (“Mr. 

Keener”) appeals from an order entered June 4, 2020, by the Circuit Court of Taylor

County. In that order, the circuit court determined that home inspectors do not meet the 

professional services tax exemption in West Virginia Code section 11-15-8 (eff. 2008) and 

that home inspection services are not professional services pursuant to West Virginia Code 

of State Rules section 110-15-8.1.1.1 (eff. 1993) (sometimes referred to as “Section 110-

15-8.1.1.1”). The circuit court also concluded that the four-part test set forth in Section

110-15-8.1.1.1 creates a mandatory four-part test, and not a balancing test as determined 

by the Office of Tax Appeals (“OTA”) and as argued by Mr. Keener. 

On appeal, Mr. Keener urges this Court (1) to recognize the services rendered 

by home inspectors as professional services for purposes of the tax exemption in West 

Virginia Code section 11-15-8, (2) to conclude that the language of Section 110-15-8.1.1.1 

creates a balancing test, not a mandatory, four-part test, and (3) to find that a four-year 

degree is not required to be deemed a professional. Having considered the briefs submitted 

on appeal, the appendix record, the parties’ oral arguments, and the applicable legal 

authority, we agree with the circuit court’s ruling that home inspection services do not 

qualify as professional services under West Virginia law. We also agree with the circuit 

court’s ruling regarding the four-year degree requirement. However, we find that the 

circuit court erred in concluding that each part of the four-part test must be met to be 
2

classified as a professional. Accordingly, for the reasons set forth below, we affirm, in 

part, and reverse, in part, the rulings made by the circuit court.1

I.

FACTUAL AND PROCEDURAL HISTORY

Mountaineer Inspection Services, LLC (“Mountaineer”) is a single-member 

limited liability company with its principal place of business located in Taylor County, 

West Virginia. Mr. Keener, Mountaineer’s sole member, is certified by the West Virginia 

State Fire Marshal to perform home inspection services. To obtain this certification, he 

passed a National Home Inspector Examination, completes at least eighty hours of 

instruction, completed high school, presented proof of general liability insurance, provided 

fingerprints, presented proof of a valid West Virginia business license, and completes 

sixteen hours of continuing education each year. See generally W. Va. C.S.R. § 87-5-4

(eff. 2006) and W. Va. C.S.R. § 106-6-4 (eff. 2021). 

Between January 1, 2011, and September 30, 2015, Mountaineer, by and 

through Mr. Keener, failed to collect and remit consumers sales and service taxes to the 

1 We wish to acknowledge the appearance of Amicus Curiae for the West 

Virginia Association of Home Inspectors, and to express our appreciation for its brief in 

support of the position espoused by Mr. Keener herein. We have considered its arguments 

and brief in our decision of this case. 
3

West Virginia Tax Department (“Tax Department”).2 In December of 2015, the Tax 

Department issued Mr. Keener a notice of assessment stating that he owed $31,137.96 in 

taxes and $5,048.24 in interest, for a total of $36,186.20. After receiving this notice, Mr. 

Keener filed a petition for reassessment with the OTA on February 5, 2016. Both parties 

agreed to waive an evidentiary hearing, and instead, they submitted the case to the OTA 

by filing briefs. Throughout the proceedings below, Mr. Keener maintained that he was 

exempt from collecting consumers sales and service tax because he and his home 

inspection company provided professional services—an exemption detailed in West 

Virginia Code section 11-15-8.

3

 

On October 4, 2018, the OTA issued its Final Decision and affirmed the Tax 

Department’s assessment, concluding that home inspection services are not professional 

services for purposes of West Virginia Code section 11-15-8. However, the OTA rejected

the notion that West Virginia Code of State Rules section 110-15-8.1.1.1 requires a fouryear degree for an activity to be considered professional, and further concluded that Section 

110-15-8.1.1.1 cannot be characterized as a mandatory four-part test. 

2 Since the filing of this case, the Tax Commissioner has changed, and the 

Commissioner is now Matthew Irby. Accordingly, the Court has made the necessary 

substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate 

Procedure.

3 The text of West Virginia Code section 11-15-8 is quoted in Part III, Section 

A of this opinion, infra.
4

Both Mr. Keener and the Tax Department appealed the OTA’s Final 

Decision.4 Upon consideration of the briefs submitted by the parties, the circuit court 

entered a final order on June 4, 2020, affirming in part and reversing in part the decision 

of the OTA. The circuit court concluded that home inspection services do not qualify as 

professional services for purposes of the tax exemption in West Virginia Code section 11-

15-8; that the OTA erroneously ruled that a four-year college degree is not a requirement 

for an activity to be classified as a professional service; and that the OTA erred by ruling 

that Section 110-15-8.1.1.1 sets forth a balancing test as opposed to a true four-part test. 

Mr. Keener now appeals the June 4, 2020 decision of the circuit court. 

II. 

STANDARD OF REVIEW

This case is before this Court on appeal from the circuit court’s order 

affirming in part, and reversing in part, a decision of the West Virginia Office of Tax 

Appeals. 

In an administrative appeal from the decision of the 

West Virginia Office of Tax Appeals, this Court will review 

the final order of the circuit court pursuant to the standards of 

review in the State Administrative Procedures Act set forth in 

W. Va. Code § 29A-5-4(g) [1988]. Findings of fact of the 

administrative law judge will not be set aside or vacated unless 

clearly wrong, and, although administrative interpretation of 

4 Mr. Keener appealed the OTA’s decision to the Circuit Court of Taylor 

County, and the Tax Department appealed the decision to the Circuit Court of Kanawha 

County. The Tax Department’s case was transferred to the Circuit Court of Taylor County 

and consolidated with Mr. Keener’s case.
5

State tax provisions will be afforded sound consideration, this 

Court will review questions of law de novo.

Syl. pt. 1, Griffith v. ConAgra Brands, Inc., 229 W. Va. 190, 728 S.E.2d 74 (2012). Accord 

Syl. pt. 1, Ashland Specialty Co. v. Steager, 241 W. Va. 1, 818 S.E.2d 827 (2018).

West Virginia Code section 29A-5-4 (eff. 1998) provides: 

The court may affirm the order or decision of the agency 

or remand the case for further proceedings. It shall reverse, 

vacate or modify the order or decision of the agency if the 

substantial rights of the petitioner or petitioners have been 

prejudiced because the administrative findings, inferences, 

conclusions, decision or order are:

(1) In violation of constitutional or statutory provisions; 

or

(2) In excess of the statutory authority or jurisdiction of 

the agency; or

(3) Made upon unlawful procedures; or

(4) Affected by other error of law; or

(5) Clearly wrong in view of the reliable, probative and 

substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of 

discretion or clearly unwarranted exercise of 

discretion.

Therefore, findings of fact from the OTA will not be set aside or vacated unless clearly 

wrong, and, although administrative interpretation of State tax provisions will be afforded 

sound consideration, this Court will review questions of law de novo.

Additionally, throughout this opinion, we are tasked with interpreting certain 

statutes and rules applicable to the issues sub judice. “Interpreting a statute or an 

administrative rule or regulation presents a purely legal question subject to de novo
6

review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 

466 S.E.2d 424 (1995). Accord Syl. pt. 1, In re Tax Assessment Against Am. Bituminous 

Power Partners, L.P., 208 W. Va. 250, 539 S.E.2d 757 (2000). “Interpretations of statutes 

by bodies charged with their administration are given great weight unless clearly 

erroneous.” Syl. pt. 4, Security Nat’l Bank & Trust Co. v. First W. Va. Bancorp, Inc., 166 

W. Va. 775, 277 S.E.2d 613 (1981). Mindful of these principles, we now consider the 

parties’ arguments.

III.

DISCUSSION

The issue presented in this matter is whether the services provided by home 

inspectors are professional services. In the case sub judice, Mr. Keener asserts that the 

circuit court erred by determining that, as a home inspector, he does not provide 

professional services for purposes of a tax exemption espoused in West Virginia Code 

section 11-15-8. In particular, he contends that the circuit court erred in concluding 

(1) that Section 110-15-8.1.1.1 sets forth a mandatory four-part test for determining 

whether an occupation is professional, and (2) that a four-year college degree is required 

for an activity to be considered to provide professional services.

In response, the Tax Department contends that its interpretation of Section 

110-15-8.1.1.1 as a mandatory, four-part test that requires a four-year degree is 

permissible and is the correct and controlling interpretation of the legislative rule at issue, 
7

and therefore this Court should affirm the decision of the circuit court determining that 

home inspection services are not exempt from the consumers sales and service tax. 

Because this case requires us to examine the statute governing consumers

sales and service tax, we are mindful that “[t]he primary object in construing a statute is to 

ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State

Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Therefore, where 

the legislative intent is plainly expressed, we are required to apply rather than interpret the 

statute at issue. “When a statute is clear and unambiguous and the legislative intent is 

plain, the statute should not be interpreted by the courts, and in such case it is the duty of 

the courts not to construe but to apply the statute.” Syl. pt. 5, State v. Gen. Daniel Morgan

Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959). 

Conversely, “[a] statute that is ambiguous must be construed before it can be applied.” Syl. 

pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). With these standards 

in mind, we now proceed to consider the arguments of the parties. 

A. Professional Services

West Virginia imposes a general consumers sales and service tax “for the 

privilege of selling tangible personal property or custom software and for the privilege of 

furnishing certain selected services.” W. Va. Code § 11-15-3(a) (eff. 2003). If a vendor 

fails to collect and remit the consumers sales tax, the vendor is personally liable for the tax. 
8

See W. Va. Code § 11-15-4a (eff. 2003). In order to prevent evasion, all sales are presumed 

to be taxable until proven otherwise. See W. Va. Code § 11-15-6(b) (eff. 2009). 

However, the statute does provide some exemptions; in particular, West 

Virginia Code section 11-15-8 provides, in relevant part:

The provisions of this article apply not only to selling 

tangible personal property and custom software, but also to the 

furnishing of all services, except professional and personal 

services, and except those services furnished by businesses 

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.

(Emphasis added). 

Because West Virginia Code sections 11-15-1 to -34, which comprise the 

relevant portion of the West Virginia tax code, do not define the term professional 

services, we must turn to the duly promulgated legislative regulations pertaining to 

consumers sales and service tax. West Virginia Code of State Rule section 110-15-8.1.1.1 

states:

Professional services, as defined in Section 2 of these 

regulations, are rendered by physicians, dentists, lawyers, 

certified public accountants, public accountants, optometrists, 

architects, professional engineers, registered professional 

nurses, veterinarians, licensed physical therapists,

ophthalmologists, chiropractors, podiatrists, embalmers, 

osteopathic physicians and surgeons, registered sanitarians, 

pharmacists, psychiatrists, psychoanalysts, psychologists, 

landscape architects, registered professional court reporters, 

licensed social workers, enrolled agents, professional foresters, 
9

licensed real estate appraisers and certified real estate 

appraisers licensed in accordance with W. Va. Code [§] 37-14-

1 et seq., nursing home administrators, licensed professional 

counselors and licensed real estate brokers. 

Section 110-15-8.1.1.1 continues, and also lists services that are classified as nonprofessional 

services:

Persons who provide services classified as nonprofessional for 

consumers sales and service tax purposes include interior 

decorators, private detectives/investigators, security guards, 

bookkeepers, forestors [sic], truck driving schools, hearing aid 

dealers/fitters, contractors, electricians, musicians, and 

hospital administrators; the foregoing listing is not allinclusive but intended as containing examples of trades and 

occupations. 

Lastly, Section 110-15-8.1.1.1 grants limited discretion to the Tax Department and concludes by 

providing a standard for the Tax Department to use when classifying non-listed services as either 

professional or nonprofessional:

The determination as to whether other activities are 

“professional” in nature will be determined by the State Tax 

Division on a case-by-case basis unless the Legislature amends 

W. Va. Code [§] 11-15-1 et seq. to provide that a specified 

activity is “professional.” When making a determination as to 

whether other activities fall within the “professional” 

classification, the Tax Department will consider such things as 

the level of education required for the activity, the nature and 

extent of nationally recognized standards for performance, 

licensing requirements on the State and national level, and the 

extent of continuing education requirements. 

Now that we have established the underlying principles that will guide our 

resolution of the issues presented in this case, we consider whether home inspection 
10

services are professional services for purposes of the consumers sales tax exemption in 

West Virginia Code section 11-15-8. 

B. Determination of Whether Home Inspection

Services are Professional Services

Mr. Keener first contends that the circuit court erred when it held that the 

standard set forth at the end of Section 110-15-8.1.1.1 constitutes a mandatory, four-part 

test where all four factors must be met for an occupation to be considered professional. See 

W. Va. C.S.R. § 110-15-8.1.1.1 (“[T]he Tax Department will consider such things as the 

level of education required for the activity, the nature and extent of nationally recognized 

standards for performance, licensing requirements on the State and national level, and the 

extent of continuing education requirements.”). Rather, Mr. Keener contends that the 

standard is a balancing test and that home inspectors should be classified as professionals 

because of the stringent requirements imposed upon them. According to Mr. Keener, the 

work of home inspectors is akin to that of lawyers and other professions listed as 

professional services in Section 110-15-8.1.1.1. He argues, that in both those professions 

and in home inspections, clients rely on the individuals’ education, experience, and 

professional judgment in making major life decisions. More specifically, Mr. Keener 

argues that although home inspectors are not explicitly identified in Section 110-15-8.1.1.1 

as an occupation providing professional services, home inspectors should be classified as 

such because they meet the rigorous considerations set forth in the four-part test of Section 

110-15-8.1.1.1. 
11

When claiming an exemption from the consumers sales and service tax, 

taxpayers are under a heavy burden to prove that their services qualify as “professional.”

This Court has held that “[w]here a person claims an exemption from a law imposing a 

license or tax, such law is strictly construed against the person claiming the exemption.” 

Syl. pt. 2, State ex rel. Lambert v. Carman, State Tax Comm’n, 145 W. Va. 635, 116 S.E.2d 

265 (1960). In the case of Wooddell v. Dailey, 160 W. Va. 65, 230 S.E.2d 466 (1976), 

this Court addressed a similar query regarding whether the services of an interior designer 

could be classified as professional services under West Virginia Code section 11-15-8.5 In 

Wooddell, we ruled that “any such other profession must be clearly established as 

professional by the one who asserts that the services rendered by him in connection 

therewith are ‘exempt’ or ‘excepted’ and hence not taxable.” 160 W. Va. at 70, 230 S.E.2d 

at 470. Therefore, because home inspectors are not explicitly listed as providing 

professional services, Mr. Keener—and other similarly situated individuals—are required 

to meet a high bar to prove that their services qualify under the professional services tax 

exemption. 

According to Mr. Keener’s brief, to become a certified home inspector in 

West Virginia, individuals

must (1) pass the National Home Inspector Examination 

offered by the Examination Board of Professional Home 

5 Wooddell v. Dailey was decided in 1977 under the statutory framework in 

existence at that time. The corresponding legislative rule was promulgated in 1993. Once 

promulgated, the legislative rule explicitly identified the services of interior designers as 

“nonprofessional.” See W. Va. C.S.R. § 110-15-8.1.1.1.
12

Inspectors or other comparable examination, as determined by 

the State Fire Marshal; (2) present proof of having conducted 

business as a home inspector for three (3) years prior to the 

effective date of the rule or proof of satisfactory completion of 

at least eighty (80) hours of instruction directly relating to the 

performance of home inspections; (3) have a high school 

degree or its equivalent; (4) present proof of and maintain 

general liability insurance of at least $250,000; and, (5) provide 

fingerprints for examination by the West Virginia State Police 

and Federal Bureau of Investigation. W. Va. Code St. R. § 87-

5-4. 

Pet. Br. at 2. 

Because home inspectors are required to meet such stringent requirements, 

Mr. Keener argues that the circuit court should have balanced the considerations in Section 

110-15-8.1.1, rather than require a fulfillment of each factor. Since this was not done, Mr. 

Keener contends that the circuit court erred when it ruled that the language of West Virginia 

Code of State Rules section 110-15-8.1.1.1 is a mandatory, four-part test. The legislative 

rule provides that 

[w]hen making a determination as to whether other activities 

fall within the “professional” classification, the Tax 

Department will consider such things as the level of education 

required for the activity, the nature and extent of nationally 

recognized standards for performance, licensing requirements 

on the State and national level, and the extent of continuing 

education requirements. 

W. Va. C.S.R. § 110-15-8.1.1.1. Mr. Keener argues that because the rule does not contain 

the word shall, that it is not a mandatory four-part test, but rather a list of considerations 

that should be balanced. Therefore, he asks this Court to reverse the circuit court’s decision 
13

concluding that the rule is a mandatory, four-part test, where all four factors must be 

satisfied. 

In reading the language of the legislative rule, we find that the circuit court

erred in finding that Section 110-15-8.1.1.1 provides a mandatory, four-part test, where 

each criterion must be satisfied. However, that is not to say that this Court finds Section 

110-15-8.1.1.1 to be a mere balancing test. The language of the rule directs that the Tax 

Department “will consider such things as” the required level of education, the nature and 

extent of national standards, licensing requirements, and continuing education 

requirements when analyzing whether an occupation provides professional services. See 

W. Va. C.S.R. § 110-15-8.1.1.1. 

The phrase “will consider” indicates a mandatory obligation on the part of 

the Tax Department to consider the four listed factors, and the phrase “such things as” 

indicates that the analysis is not limited to the four listed factors. The word will creates an 

obligation to perform. See Bryan A. Garner, A Dictionary of Modern Legal Usage 941-

942 (2d ed., Oxford U. Press 1995). Yet, a mandatory obligation to consider is not 

equivalent to a mandatory “all or nothing” test where all factors must be satisfied. Rather, 

this Court concludes that the plain language of the rule requires the Tax Department to 

mandatorily consider the listed criteria at a minimum, and not to the exclusion of other 

factors. 
14

Based on these determinations, an individual seeking to be classified as a 

professional—for purposes of the tax exemption in West Virginia Code section 11-15-8—

must not satisfy all four factors set forth in Section 110-15-8.1.1.1, but the Tax Department 

must consider the listed criteria at a minimum, and not to the exclusion of additional factors 

that may arise over time. Therefore, we conclude that the circuit court erred in determining 

Section 110-15-8.1.1 to be a mandatory, four-part test where all factors must be satisfied. 

Mr. Keener next contends that the four-year college degree requirement 

imposed by the Tax Department and accepted by the circuit court is contrary to the plain 

language of Section 110-15-8.1.1.1. Mr. Keener asserts that the Legislature has 

unambiguously announced that the Tax Department must consider the level of education 

required for an activity before determining whether that activity provides professional 

services. Absent from this rule, however, is the four-year college degree requirement 

propounded by the Tax Department. Mr. Keener alleges that even if the rule was 

ambiguous, the four-year degree requirement is an impermissible exercise of the Tax 

Department’s gap-filling authority because the requirement is arbitrary and directly 

contrary to the language of the rule. Therefore, Mr. Keener contends that the circuit court 

erred in finding that a four-year college degree is required before an occupation can be 

considered a professional service. In support of his argument, Mr. Keener asserts that 

Section 110-15-8.1.1.1 is unambiguous. We disagree. Pursuant to these provisions, if the 

services provided by home inspectors are professional services then they are exempted 

from the general requirement of the collection of consumerssales and service tax; however, 
15

West Virginia Code sections 11-15-1 to -34 do not define the term professional services. 

The absence of such a definition makes it unfeasible for this Court to say that this statute 

is clear and unambiguous because further statutory construction is required to resolve this 

obvious ambiguity.

If a statute is silent or ambiguous on a specific issue, and the administrative 

agency is authorized to promulgate legislative rules—in this case the Tax Department—

then the administrative agency has discretion to interpret the statute. See, e.g., Syl. pt. 4, 

in part, Appalachian Power Co., 195 W. Va. 573, 466 S.E.2d 424 (1995) (“If legislative 

intent is not clear, a reviewing court may not simply impose its own construction of the 

statute in reviewing a legislative rule. Rather, if the statute is silent or ambiguous with 

respect to the specific issue, the question for the court is whether the agency’s answer is 

based on a permissible construction of the statute.”); Syl. pt. 7, in part, Lincoln County Bd. 

of Educ. v. Adkins, 188 W. Va. 430, 424 S.E.2d 775 (1992) (“Interpretations of statutes by 

bodies charged with their administration are given great weight unless clearly erroneous.”).

Under West Virginia law, “[a] regulation that is proposed by an agency and 

approved by the Legislature is a ‘legislative rule’ as defined by the State Administrative 

Procedures Act, W. Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force 

and effect of law.” Syl. pt. 5, Smith v. W. Va. Human Rights Comm’n, 216 W. Va. 2, 602 

S.E.2d 445 (2004). The State Administrative Procedures Act, West Virginia Code section 

29A-1-2(d) (eff. 2015), defines a “legislative rule” in the following manner:
16

“Legislative rule” means every rule . . . proposed or 

promulgated by an agency pursuant to this chapter. Legislative 

rule includes every rule which, when promulgated after or 

pursuant to authorization of the legislature, has (1) the force of 

law, or (2) supplies a basis for the imposition of civil or 

criminal liability, or (3) grants or denies a specific benefit. 

Every rule which, when effective, is determinative on any issue 

affecting private rights, privileges or interests is a legislative 

rule.

This Court has held that in reviewing an agency’s construction of a statute, 

we consider two separate questions: whether the Legislature’s intent is clear and whether 

the agency’s construction of the statute is permissible. Appalachian Power, 195 W. Va. at 

583, 466 S.E.2d at 434 (quoting Sniffin v. Cline, 193 W. Va. 370, 373-74, 456 S.E.2d 451, 

454-55 (1995)). If the Legislature has spoken directly to the precise issue in question, the 

review ends. Appalachian Power, 195 W. Va. at 583, 466 S.E.2d at 434. If the 

Legislature’s intent is unclear, then the court moves to considering whether the 

construction is permissible. Id. Courts should “presume that a legislature says in a statute 

what it means and means in a statute what it says.” Id. (quoting Martin v. Randolph County 

Bd. of Educ., 195 W. Va. 297, 312, 465 S.E.2d 399,414 (1995)). If there is a gap in the 

Legislature’s enactments on a particular issue, then an agency, within their rule-making 

authority, may fill the gap, but the agency’s gap-filling rulemaking should not stand if it is 

arbitrary, capricious, or manifestly contrary to the statute. Appalachian Power, 195 W. Va.

at 589, 466 S.E.2d at 440.
17

As stated above, West Virginia Code sections 11-15-1 to -34 do not define 

the term professional services. Therefore, we must turn to West Virginia Code of State 

Rules section 110-15-8.1.1.1. Here, the legislative rule at issue expressly designates thirtyseven services as professional services, which are, thus, exempted from the consumers

sales and service tax. Home inspection services are not enumerated in the list of 

professional services. Likewise, home inspection services also are not listed in the 

specified nonprofessional services. It would be inconceivable, and even absurd, to expect 

the Legislature to classify every single occupation as either professional or 

nonprofessional. Therefore, while the Legislature is free to designate any service as 

professional or nonprofessional regardless of the educational requirement, the Tax 

Department does not have the same unfettered discretion. Rather, the Legislature delegates 

limited authority6 to the Tax Department to classify additional professional services on a 

“case-by-case basis” in accordance with the criteria expressly authorized by the Legislature 

in Section 110-15-8.1.1.1. When classifying non-listed services as either professional or 

nonprofessional, the four-part test detailed in Section 110-15-8.1.1.1 is used: the level of 

education, the nature and extent of nationally recognized standards, the licensing 

requirements, and the continuing education requirements. See W. Va. C.S.R. § 110-15-

8.1.1.1. 

6 We recognize that an agency’s authority to fill “gaps” in legislative 

enactments is subject to the provisions of W. Va. Code § 29A-3-2 (eff. 1982).
18

The four-year degree rule contested by Mr. Keener is not a new or random 

requirement. Although the legislative rule is silent as to the level of education required, 

the Tax Department has long taken the position that a high school diploma or a GED is not 

sufficient to fulfill the educational requirements under Section 110-15-8.1.1.1, and that a 

relevant four-year degree from an accredited college or university is required. See, e.g., 

W. Va. Tax Dec. 2006-340C, 2007 WL 9617856, *1 (W. Va. Off. Tax App. Mar. 27, 2007) 

(concluding that having a four-year degree is a requirement and that a degree germane to 

the activity at issue is one that tends to divide professions from trade or skilled 

occupations). 

It has been argued that because some of the professional services listed in 

Section 110-15-8.1.1.1 do not require any more education than a high school diploma, that 

a four-year degree cannot be deemed a necessary requirement to qualify for the 

professional services tax exemption. For example, real estate brokers (W. Va. Code § 30-

40-14 (eff. 2002)), real estate appraisers (W. Va. C.S.R. §190-2-1 (eff. 2020)), and 

embalmers (W. Va. C.S.R. § 6-1-3.1.2.a (eff. 2021)) are all listed in Section 110-15-8.1.1.1 

as providing professional services; however, those occupations do not require a college 

degree. We are not persuaded by this argument. 

Here, Section 110-15-8.1.1.1 gives the Tax Department the authority to 

determine whether additional non-specified occupations fall within the scope of 

professional services. Of particular importance here is the level of education required for 
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an occupation to be considered “professional.” As evident from the language of the rule, 

it is clear that the Legislature did not specify how much education is required—this 

question was left open. 

Although this Court has not addressed this issue before, the OTA has spoken 

on this issue in previous tax appeals. More specifically, the OTA has stated:

The requirement that in order to qualify as a profession 

an occupation must satisfy the educational requirement of a 

four-year college degree is one that was established by the 

State Tax Commissioner’s Office of Hearings and Appeals.[7]

 

This tribunal, the West Virginia Office of Tax Appeals, is 

independent of the State Tax Commissioner. Decisions issued 

by the Tax Commissioner’s Office of Hearings and Appeals 

are not precedents that are binding on this Office. However, 

this Office has chosen to continue to adhere to this educational 

requirement because it is one that is reasonable in light of the 

purposes and goals that the Legislature attempted to achieve in 

enacting the statute and approving the legislative rule. A 

minimum requirement of a four-year degree that is germane to 

the activity (plus the other requirements of the legislative rule) 

is one that tends to divide professions from mere trades or 

skilled occupations.

This Office recognizes that this requirement of a fouryear college degree is, in a very technical sense, “arbitrary.” As 

the Circuit Court of Kanawha County held in Wideman & 

Associates, Inc. v. Paige, Civil Action No. 93-C-5726 (Cir. Ct. 

Kan. Co. 06/27/95), the legislative rule, on its face, is devoid 

of any fixed number of respectively weighted standards that 

7 “[L]egislative changes resulted in the creation of a successor tribunal to the 

Tax Commissioner’s Office of Hearings and Appeals: the Office of Tax Appeals.” 

Concept Min., Inc. v. Helton, 217 W. Va. 298, 300, 617 S.E.2d 845, 847 (2005). The Office 

of Tax Appeals began operations on January 1, 2003. 
20

can be used for guidance by taxpayers, the Tax Commissioner, 

the courts and, logically, this Office as the specialized state tax 

tribunal. In light of the lack of guidance provided by the 

legislative rule, any standard applied will, of necessity, be 

arbitrary, whether it be a rule applied to all occupations, as this 

Office is doing, or whether it establishes some rule respecting 

the education required (or one of the other standards) for an 

occupation on a case-by-case basis. The only thing that this 

Office, a specialized state tax tribunal, and the courts can hope 

to do when creating some necessarily arbitrary rule is to avoid 

being capricious at the same time. This Office’s goal in 

establishing the requirement that an occupation must require a 

four-year college degree in order to be considered a profession 

is to establish a clear, bright line rule that can readily be 

understood and applied, in advance, by all taxpayers, the State 

Tax Commissioner and this Office. 

W. Va. Tax Dec. 2006-340C, 2007 WL 9617856, at *12 (W. Va. Off. Tax App. Mar. 27, 

2007) (footnote added). 

We are guided and persuaded by the sound reasoning of the OTA as set forth 

in the preceding excerpt. In the case sub judice, a gap existed in the education requirement 

for determining whether a particular occupation provides a professional service, and the 

Tax Department properly used its discretion to clarify the ambiguity. Based upon 

established precedent, the Tax Department interpreted the education requirement in the 

rule as requiring a four-year college degree for a service to be classified as a professional 

service. In doing so, the Tax Department did not act randomly or beyond its authority. 

Rather, the Tax Department used the four-year degree to provide a bright line rule that can 

be easily followed and applied in future cases. Accordingly, we conclude that the Tax 

Department acted within the discretion afforded to it by the Legislature, and the circuit 
21

court did not err when finding that the four-year degree requirement was a permissible 

exercise of the Tax Department’s rule-making authority. 

While this Court has never directly addressed whether home inspectors 

provide professional services, this issue has been previously answered by the Tax 

Department in its administrative decisions. See, e.g., W. Va. Tax Dec. 2003-418C & 2003-

487RC, 2004 WL 1416147, at *5 (W. Va. Off. Tax App. Mar. 29, 2004) (“The 

‘professional services’ exception from services in general subject to the consumers’ sales 

and service tax, see W. Va. Code §§ 11-15-8 [1955] and 11-15-2(s) [1994, 1998, 2001], 

does not apply to the services of a home inspector, where, as here, such an inspector fails 

to prove that his or her services comport with the mandatory four-part test of the legislative 

regulation set forth in 110 C.S.R. 15, § 8.1.1.1 (effective on or after May 1, 1992), and in 

fact fails to prove that home inspection services satisfy any of the four requirements.”); 

W. Va. Tax Dec. 96-098CS, 1998 WL 1048430, at *3 (W. Va. Off. Hrg. App. Sept. 21, 

1998) (“Based upon the review of the criteria, the Petitioner has failed to meet the burden 

of proof required to clearly establish that home inspection service is a professional service. 

Thus, the Petitioner’s services rendered in his capacity as a home inspector are not exempt 

from consumers sales and service tax as professional service.”). 

While it should be noted that these decisions were issued prior to the 

certification requirements set forth by the State Fire Marshal in West Virginia Code of 

State Rules section 87-5-4, it remains that the since-promulgated requirements only impose 
22

minimal educational requirements. See W. Va. C.S.R. § 87-5-4.2. Under the State Fire 

Marshal’s promulgated rule, a home inspector must have “[s]successfully completed high 

school or its equivalent.” Id. As noted by the circuit court in its order, when asked “to 

classify a service that is not specifically designated as a professional service in the 

legislative rule, the Tax Department has long taken the position that a high school diploma 

or a GED is not enough to qualify as providing a professional service.” The circuit court 

further stated that “[t]o be classified as providing a professional service, the minimum 

education required to provide that service must be a four-year college degree or its 

equivalent.”

After careful review of the pertinent law, we conclude that the circuit court 

did not err in finding that home inspectors are not professionals under West Virginia Code 

of State Rules section 110-15-8.1.1.1, and also did not err in upholding the four-year degree 

requirement, as we find it was a permissible exercise of the Tax Department’s rule-making 

authority. Accordingly, we conclude that home inspectors do not provide professional 

services for purposes of the professional services tax exemption in West Virginia Code 

section 11-15-8. However, we find that the circuit court did err in finding that Section 110-

15-8.1.1.1 created a mandatory four-part test where each factor must be satisfied.
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IV.

CONCLUSION

For the reasons set forth above, we affirm, in part, and reverse, in part, the 

circuit court’s order. 

Affirmed, in part; Reversed, in part.