West Virginia Code of State Rules › Agency 110 - Tax › Title 110 - LEGISLATIVE RULE STATE TAX DEPARTMENT › Series 110-15 - Consumer Sales And Service Tax And Use Tax › Section 110-15-9 - Exemptions

Current through Register Vol. XLI, No. 28, July 12, 2024
9.1. General. -
				Certain types of transactions are exempt from the consumers sales and service
				tax and the use tax. The question of whether an exemption is applicable is
				determined by the nature of the tangible personal property or service being
				sold, purchased or used; how the property or service is being used; or the
				status of the vendor, purchaser or user. The exemptions allowed by law are
				classified in Sections 9.2, 9.3, 9.4 and 9.5 of these regulations; and the
				words "gasoline and special fuel" are defined in Section 2 of these
				regulations.
9.2. Per Se
				Exemptions. - The following sales and purchases of tangible personal property
				or services are exempt per se from the consumers sales and service tax and the
				use tax, meaning that no exemption certificate, material purchase certificate
				or direct pay permit is required to claim any of the following exemptions:
9.2.1. Sales of gas, steam and water when
				delivered to consumers through mains or pipes. Therefore, sales of bottled gas,
				bottled water, etc., do not qualify for this exemption.
9.2.2. Sales of electricity.
9.2.3. Sales of other public services which
				are subject to regulation by the West Virginia Public Service
				Commission.
9.2.4. Sales of
				textbooks required to be used in any of the schools of the State, public or
				private, or in any institution in this State which qualifies as a nonprofit or
				educational institution subject to the West Virginia Department of Education or
				West Virginia Board of Regents, regardless of whether such textbooks are sold
				directly to such schools or to a student enrolled in such schools: Provided,
				That the vendor must retain proof that the book is a required textbook and that
				the purchaser is currently enrolled as a student at the school where the
				textbook is required.
9.2.5. An
				isolated transaction (as defined in Section 2) in which any taxable service or
				tangible personal property is sold, transferred, offered for sale, or delivered
				by the owner thereof or by his representative for the owner's account, such
				sale, transfer, offer for sale or delivery not being made in the ordinary
				course of repeated and successive transactions of like character by such owner
				or on his account by such representative: Provided, That an owner who sells,
				transfers or offers for sale tangible personal property in an isolated
				transaction through an auctioneer need not collect the tax from either the
				auctioneer or the purchaser. To illustrate: A person who is not engaged in the
				business of selling furniture sells his used household furniture. Since such
				person is not regularly engaged in selling to the public, his sale of used
				furniture is an isolated transaction upon which no consumers sales and service
				tax or use tax is imposed. For sales by an auctioneer, See Section 86 of these
				regulations.
9.2.6. Sales of
				newspapers when delivered to consumers by route carriers. All other sales of
				newspapers are taxable, unless the transaction is exempt under some other
				provision of this Section.
9.2.7.
				Sales of drugs dispensed upon prescription and sales of insulin to consumers
				for medical purposes. See Section 92 of these regulations.
9.2.8. Sales of services performed by
				licensed day care centers or registered day care centers as that phrase is
				defined in Section 2 of these regulations. This exemption does not include
				sales of tangible personal property and services to a day care center; such
				sales are taxable unless exempt under some other provision of this Section.
				Even though the organizations and activities referenced in subsections 2.25.1,
				2.25.2, 2.25.3 and 2.25.4 of these regulations are not classified as "day care
				centers, the services provided by such organizations may be exempt under
				another exemption. For example, sales of babysitting services may be exempt as
				casual and occasional sales or isolated transactions.
9.2.9. Sales of West Virginia lottery tickets
				and materials by licensed lottery sales agents and lottery retailers authorized
				by the West Virginia Lottery Commission, under the provisions of W. Va. Code
				'29-22-1 et seq.,
				provided the materials sold relate directly to the lottery. Tangible personal
				property and services sold by a licensed lottery sales agent or a lottery
				retailer which are not directly related to the operation of the lottery are
				taxable unless exempt from tax under some other provision of this
				Section.
9.2.10. Leases of motor
				vehicles titled pursuant to the provisions of W. Va. Code '17A-3-1
				et seq. to lessees for a period of thirty (30) or more consecutive days. This
				exemption shall apply to leases executed on or after July 1, 1987, and to
				payments under long-term leases executed before July 1, 1987, for months
				beginning on or after such date.
9.2.11. Sales of food intended for human
				consumption when sold by the following organizations in the manner indicated
				are exempt:
9.2.11.1. Food sold by public or
				private schools, school sponsored student organizations, or school sponsored
				parent-teacher associations to students enrolled in such school or to employees
				of such school during normal school hours; but not those sales of food made to
				the general public. See Section 126 of these regulations.
9.2.11.2. Food sold by a public or private
				college or university or by a student organization officially recognized by
				such college or university to students enrolled at such college or university
				when such sales are made on a contract basis so that a fixed price is paid for
				consumption of food products for a specific period of time without respect to
				the amount of food product actually consumed by the particular individual
				contracting for the sale and no money is paid at the time the food product is
				served or consumed. See Section 70 of these regulations.
9.2.11.3. Food sold by a nonprofit
				organization or a governmental agency under a program to provide food to
				low-income persons at or below cost. For further information, See Section 126
				of these regulations.
9.2.11.4.
				Food sold in an occasional sale by a charitable or nonprofit organization,
				including volunteer fire departments and rescue squads, if the purpose of the
				sale is to obtain revenue for the functions and activities of the organization
				and the revenue so obtained is actually expended for that purpose.
9.2.11.5. Food sold by any religious
				organization at a social or other gathering conducted by it or under its
				auspices, if the purpose in selling the food is to obtain revenue for the
				functions and activities of the organization and the revenue obtained from
				selling the food is actually used in carrying on such functions and activities:
				Provided, That purchases made by such organizations shall not be exempt as a
				purchase for resale.
9.2.11.6.
				Sales of food by little leagues, midget football leagues, youth football or
				soccer leagues and similar types of organizations including scouting groups and
				church youth groups if the purpose in selling the food is to obtain revenue for
				the functions and activities of the organization and the revenues obtained from
				selling the food is actually used in supporting or carrying on functions and
				activities of the groups: Provided, That such purchases made by such
				organizations shall not be exempt as a purchase for resale.
9.2.11.6.1. This exemption is effective
				whether the sale of food occurs at the sporting event or through a separate
				fund-raising event.
9.2.12. Sales of tangible personal property
				or services purchased after September 30, 1987, and lawfully paid for with food
				stamps pursuant to the Federal Food Stamp Program codified in
				7 U.S.C.
				2011, et seq., as amended, or with drafts
				issued through the West Virginia special supplemental food program for women,
				infants and children (WIC) as codified in
				42
				U.S.C. 1786. Such tangible personal property
				or services include, but are not necessarily limited to the following:
9.2.12.1. "Food" as defined in Section 2 of
				these regulations.
9.2.12.2. Seeds
				and plants for growing in gardens to produce food for personal consumption by
				eligible households.
9.2.12.3.
				Deposits on returnable bottles or other returnable containers which are part of
				the cost of the food contained therein.
9.2.12.4. Distilled water and ice unless
				specifically labeled for nonfood use.
9.2.13. Sales of tickets for activities
				sponsored by elementary and secondary schools located within this State. This
				exemption does not include activities sponsored by other organizations, which
				merely occur on school property and are not sponsored directly by such
				school.
9.2.14. Sales of radio or
				television broadcasting time, and sales of advertisements of goods and services
				in preprinted advertising circulars, and magazines, newspapers and outdoor
				advertising space: Provided, That pre-printed advertising circulars shall
				include purchase of direct-mailing advertising services, and space in home
				shoppers guides, and newspaper supplements and inserts, but does not include
				wholesale and retail catalogs through which tangible personal property and
				services may be directly ordered.
9.2.15. Personal services, as defined in
				Section 2.
9.2.16. Professional
				services, as defined in Section 8.
9.2.17. Contracting services, as defined in
				Section 2.
9.2.18. Services
				rendered by an employee to his or her employer. See Section 60 of these
				regulations, Employee or Independent Contractor.
9.2.19. Sales of tangible personal property
				or taxable services in this State, or the use in this State of tangible
				personal property or services, which this State is prohibited from taxing under
				its consumers sales and service tax and use tax laws by the United States
				Constitution, controlling federal law, the Constitution of this State or some
				controlling provision of West Virginia law not found in the consumers sales and
				service tax and use tax laws, such as, for example, sales by credit unions
				under W. Va. Code '31-10-33, the sale of services by owners, trainers or
				jockeys which are essential to the effective conduct of a horse or dog racing
				meeting under W. Va. Code '19-23-12,
				or the commission of an auctioneer licensed under W. Va. Code '19-2C-1 et seq.:
				Provided, That the vendor shall maintain adequate documentation to show the
				sale is not subject to the consumers sales and service tax and use
				tax.
9.2.20. Charges for room and
				meals by fraternities and sororities to their members: Provided, That purchases
				of food for meals made by a fraternity or sorority shall not be exempt as a
				purchase for resale. See Section 70 of these regulations for further
				clarification.
9.2.21. Sales of or
				charges for the transportation of passengers in interstate commerce.
9.2.22. Casual and occasional sales (as
				defined in Section 2) of property or services not conducted in a repeated
				manner or in the ordinary course of repetitive and successive transactions of
				like character by corporations or organizations which are exempt from the
				payment of tax under W. Va. Code '11-15-9(f)
				and Section 9.3.10 of these regulations on its purchases of tangible personal
				property or services.
9.2.23.
				Tuition charged for attending an educational summer camp (as defined in Section
				2 of these regulations).
9.2.23.1. Even though
				the tuition charged for attending an educational summer camp is exempt, that
				exemption does not extend to charges for services or tangible personal property
				which is provided by the summer camp.
9.2.23.2. In order for the exemption to be
				claimed, the tuition charge must be separately identifiable and it may not
				include other charges for services or tangible personal property provided by
				the summer camp.
9.2.23.3. For
				further information, See Section 125 of these regulations.
9.2.24. Sales of vehicles which are titled
				with the West Virginia Department of Motor Vehicles and which are subject to
				the vehicle title privilege tax imposed by W. Va. Code '17A-3-4
				or a similar tax imposed by another state. All sales of vehicles are subject to
				the consumers sales and service tax and the use tax unless two conditions are
				met:
(1) it is titled by the West Virginia
				Department of Motor Vehicles or a similar agency of another state;
				and
(2) it is subject to the
				vehicle title privilege tax or a similar tax imposed by another state; or
				unless the transaction is exempt under some other provision of this
				Section.
9.2.24.1. Any vehicle
				which is licensed or titled by the West Virginia Department of Motor Vehicles
				but which is not subject to the West Virginia vehicle title privilege tax, is
				subject to the consumers sales and service tax or the use tax.
9.2.24.2. Any vehicle which is licensed or
				titled by the West Virginia Department of Motor Vehicles, such as a travel
				trailer or a camping trailer, which is purchased from a person who is not
				engaged in the business of selling such vehicles or related property is
				considered to have been the subject of an isolated sale and is exempt from
				consumers sales and service tax and the use tax.
9.2.24.3. In order to establish the
				applicability of the consumers sales and service tax or use tax, the Tax
				Commissioner may require proof that the motor vehicle privilege tax has been
				paid.
9.2.24.4. Any vehicle which
				is purchased and delivered in West Virginia and immediately removed from this
				State is exempt from the consumers sales and service tax and use tax if the
				vehicle is then titled and registered in another state and is subject to a tax
				similar to the tax imposed by W. Va. Code '17A-3-4.
9.2.25. Charges for the services
				of opening and closing a burial lot or burial vault for the ultimate
				disposition of human remains.
9.2.26. Sales of livestock, poultry, or other
				farm products in their original state by the producer thereof (or a member of
				the producer's immediate family) who is not otherwise engaged in making retail
				sales of similar tangible personal property. See Section 2 of these regulations
				for additional information.
9.2.26.1. This
				section applies whether the retail sales transaction occurs at a roadside stand
				or elsewhere; however, such retail sales will not be affected by the normal
				wholesale sale of the producer's products. For example, if a producer grows
				apples, such apples may be sold exempt from tax so long as the producer does
				not operate a retail business in which apples are sold. However, if that same
				producer operates a commercial produce market and sells the apples he raises as
				well as other apples and produce grown by others, the sale of all apples is
				subject to consumers sales and service tax.
9.2.26.2. Neither the producer nor a member
				of the producer's immediate family claiming entitlement to this exemption may
				be engaged as an employee, independent contractor, owner or partner of a retail
				business which sells tangible personal property similar to that being sold by
				the producer.
9.2.27.
				Sales of livestock at public sales sponsored by breeder's or registry
				associations or at livestock auction markets.