West Virginia Code 11-15A-6a – Collection by certain other retailers
(a) Duty to collect tax. — For purposes of this article and for collection of use tax required under section six of this article, a retailer engaging in business in this state also means and includes any of the following:
Terms Used In West Virginia Code 11-15A-6a
- 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. See West Virginia Code 11-15A-1
- Contract: A legal written agreement that becomes binding when signed.
- Newspaper: means a paper that is printed and distributed usually daily or weekly and that contains news, articles of opinion, features, and advertising. See West Virginia Code 11-15A-1
- 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. See West Virginia Code 11-15A-1
- Personal property: All property that is not real property.
- personal property: includes goods, chattels, real and personal, money, credits, investments, and the evidences thereof. See West Virginia Code 2-2-10
- 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. See West Virginia Code 11-15A-1
- Sale: means any transaction resulting in the purchase or lease of tangible personal property, custom software or a taxable service from a retailer. See West Virginia Code 11-15A-1
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
- Tangible personal property: includes , but is not limited to, electricity, water, gas, and prewritten computer software. See West Virginia Code 11-15A-1
- 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. See West Virginia Code 11-15A-1
(1) Any retailer soliciting orders from persons located in this state for the sale of tangible personal property or taxable services by means of a telecommunication or television shopping system which utilizes a telephone or mail ordering system, including toll free telephone numbers, reverse charge telephone systems or other telephone ordering systems and which is intended by the retailer to be broadcast by cable television or other means of broadcasting, to consumers located in this state: Provided, That such retailer has physical presence in this state in the form of employees, offices, agents or sales outlets in this state, or any other presence that provides the necessary minimum contacts for a Constitutionally sufficient nexus for a state to require such a retailer collect and remit use taxes.
(2) Any retailer who solicits orders from persons located in this state for the sale of tangible personal property or taxable services by means of advertising that is broadcast from, printed at, or distributed from, a location in this state if the advertising is primarily intended to be disseminated to consumers located in this state and is only secondarily or incidentally disseminated to bordering jurisdictions. For purposes of this paragraph, advertising which is broadcast from a radio or television station located in this state or is printed in or distributed by a newspaper published in this state is rebuttably presumed to be primarily intended for dissemination to consumers located in this state: Provided, That such retailer has physical presence in this state in the form of employees, offices, agents or sales outlets in this state, or any other presence that provides the necessary minimum contacts for a Constitutionally sufficient nexus for a state to require such a retailer to collect and remit use taxes.
(3) Any retailer soliciting orders from persons located in this state for the sale of tangible personal property or taxable services by mail if the solicitations are substantial and recurring and if the retailer economically benefits from any banking, financing, debt collection, telecommunication or marketing activities occurring in this state or economically benefits from the location in this state of an authorized installation, servicing or repair facility, regardless of whether such facility is owned or operated by such retailer or by a related or unrelated person: Provided, That such retailer has physical presence in this state in the form of employees, offices, agents or sales outlets in this state, or any other presence that provides the necessary minimum contacts for a Constitutionally sufficient nexus for a state to require such a retailer to collect and remit use taxes.
(4) Any retailer having a franchisee or licensee operating in this state under the retailer's trade name, if the franchisee or licensee is required to collect the tax imposed by this article or article fifteen of this chapter: Provided, That such retailer has physical presence in this state in the form of employees, offices, agents or sales outlets in this state, or any other presence that provides the necessary minimum contacts for a Constitutionally sufficient nexus for a state to require such a retailer to collect and remit use taxes.
(5) Any retailer who, pursuant to a contract with a cable television operator located in this state, solicits from persons located in this state orders for the sale of tangible personal property or taxable services by means of advertising which is transmitted or distributed over a cable television system in this state: Provided, That such retailer has physical presence in this state in the form of employees, offices, agents or sales outlets in this state, or any other presence that provides the necessary minimum contacts for a Constitutionally sufficient nexus for a state to require such a retailer to collect and remit use taxes.
(b) Exemption from payment of business registration tax. — Any retailer required to collect use tax under the provisions of subsection (a) of this section shall be required to obtain a business registration certificate, as provided in article twelve of this chapter, but shall be exempt from payment of the tax levied by subsection (b), section three of said article twelve, unless the retailer has sufficient presence in this state so that required payment of the tax does not violate any provision of the Constitution or laws of this state or of the United States.
(c) Effective date. — The provisions of this section shall become effective July 1,1989, and apply to sales of tangible personal property or taxable services made on or after that date.