Mail Order Sales

128.1. Effective July 1, 1989, every person who engages in the business of making mail order sales is exercising a taxable privilege, when:

128.1.1. The retailer is a corporation doing business under the laws of this State or a person domiciled in, a resident of, or a citizen of this State;

128.1.2. The retailer maintains a retail establishment or office in this State whether or not the mail order sales result from or are related in any other way to the activities of such establishment or office; or

128.1.3. The retailer has agents in this State who solicit business or transact business on behalf of the retailer, whether or not the mail order sales result from or are related in any other way to such solicitation or transaction of business; or

128.1.4. The property or the result of a service was delivered within this State in fulfillment of a sales contract that was entered into in this State, in accordance with applicable conflict of laws rules, when a person in this State accepted an offer by ordering the property or the service; or

128.1.5. The retailer, purposefully or systematically exploiting the market provided by this State by any media-assisted, media-facilitated, or media-solicited means, including, but not limited to, direct mail advertising, unsolicited distribution of catalogs, computer-assisted shopping, television, radio or other electronic media or magazine or newspaper advertisements or other media, creates nexus with this State; or

128.1.6. Through compact or reciprocity with any other jurisdiction of the United States which jurisdiction uses its taxing power and its jurisdiction over the retailer in support of this State's taxing power; or

128.1.7. The retailer consents, expressly or by implication, to the imposition of the West Virginia use tax.

128.2. Definitions. - The following terms or phrases when used in this Section shall have the meaning ascribed to them except where the context clearly indicates a different meaning is intended:

128.2.1. "Retailer" means and includes every person engaging in the business of selling or leasing tangible personal property for use in this State or rendering taxable services the results of which will be used in this State, including a retailer who transacts mail order sales.

128.2.1.1. When in the opinion of the Tax Commissioner it is necessary for the efficient administration of the use tax, the Tax Commissioner may regard any salesperson, representative, trucker, peddler, or canvasser as the agent of the dealers, distributors, supervisors, employers or persons under whom they operate or from whom they obtain the tangible personal property or taxable service sold by them, regardless of whether they are making sales on their own behalf or on behalf of such dealers, distributors, supervisors, employers or persons; and the Tax Commissioner may regard such dealers, distributors, supervisors, employers or persons as retailers for purposes of collecting the use tax imposed by this State.

128.2.2. "Retailer engaging in business in this State" means and includes, but shall not be limited to:

128.2.2.1. 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, regardless of whether such place of business or such agent is located here permanently or temporarily, or whether such retailer, or subsidiary, is admitted to do business within this State pursuant to W. Va. Code §31-1-49. This definition shall be administered and enforced in conformity with the Constitutions and statutes of this State and of the United States.

128.2.2.2. Any retailer soliciting orders from persons located in this State for the sale of tangible personal property or taxable services by means of any of the following:

128.2.2.2.a. 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.

128.2.2.2.b. By means of advertising that is broadcast from, printed at, or distributed from, a location in this State if the advertising from such location is primarily intended to be disseminated to consumers located in this State and is only secondarily or incidentally disseminated to bordering jurisdictions. 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 presumed to be primarily intended for dissemination to consumers located in this State. This presumption may be rebutted by persuasive evidence to the contrary. However, the number and geographic location of a television station's viewers, a radio station's listeners, a newspaper's subscribers or the distributees of advertising printed at or distributed from a location in this State is but one factor to be considered and, standing alone, shall not be controlling the controlling factor.

128.2.2.2.c. 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 or service or repair facility, regardless of whether such facility is owned or operated by such retailer or by a related or unrelated person.

128.2.2.2.d. By 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 consumers sales and service tax or use tax imposed by this State.

128.2.2.2.e. By means of a contract with a cable television operator located in this State pursuant to which the retailer 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.

This definition shall be administered and enforced in conformity with the Constitutions and statutes of this State and of the United States.

128.2.3. "Final adjudication" means a decision of a court of competent jurisdiction from which no appeal can be taken or from which the official or officials of this State with authority to make such decisions have decided not to appeal.

128.2.4. "A mail order sale" is a sale of tangible personal property, or a taxable service that is ordered by mail, computer-assisted shopping, media-assisted, media-facilitated, or media-solicited, or by other means of communication (including but not limited to direct mail advertising, unsolicited distribution of catalogs, television, radio or other electronic media, telephone or magazine or newspaper advertising), to a purchaser who is in this State at the time the order is remitted, from a dealer who receives the order in another state of the United States, or is in a commonwealth, territory or other area under the jurisdiction of the United States, and transports the property or causes the property to be transported, whether or not by mail, from any jurisdiction of the United States, including this State to a person in this State, including the person who ordered the property. For purposes of this definition, there is a presumption that every person who is a resident of this State who remits an order was in this State when the order was finally remitted by the vendor.

Example 1: A purchaser, who is a resident of West Virginia, receives in the mail a catalog of the seller who resides in another state and whose business facilities are all located in that state. The purchaser orders tangible personal property advertised in the catalog by completing an order blank furnished with the catalog, attaching his or her personal check in the amount required for the purchase, and mails the order from within this State to the seller. The seller, by mail or other means of transportation, transmits the property to the purchaser in West Virginia. If any of the provisions of Section 128.1 are applicable, this is a taxable mail order sale and the out-of-state vendor must collect use tax from the West Virginia customer.

Example 2: A purchaser, not a resident of West Virginia, while outside this State orders tangible personal property from a seller in another state to be sent to the purchaser's grandchildren in West Virginia. This is not a "mail order sale" because the purchaser was not in West Virginia at the time the order was remitted.

Example 3: A West Virginia resident, while vacationing in another state, orders tangible personal property from a seller in another state to be sent to the purchaser's home in West Virginia. Since the purchaser is a West Virginia resident, he or she is presumed to have purchased the property for use or consumption in this State. If any of the provisions of Section 128.1 are applicable, the out-of-state vendor must collect West Virginia use tax. If this presumption is rebutted, this would not be a taxable "mail order sale."

128.3. Vendor's Responsibilities. - Every vendor engaged in the business of making mail order sales that are subject to use tax is required to have a business registration certificate. No registration fee is required unless the vendor has contact with this State that is sufficient to sustain imposition by this State of a direct tax on the out-of-state vendor.

128.4. Transportation and Handling Charges. - The total amount paid for tangible personal property, including transportation charges, handling charges, and any other charges whatsoever that occur prior to actual transfer of title to the tangible personal property to the purchaser by the vendor are subject to the tax regardless of whether such charges are separately stated.

128.5. No Dealer Collection Allowance. - Persons who collect consumers sales and service tax or use taxes must turn over to the Tax Commissioner the full amount of consumers sales and service or use taxes they collect from West Virginia customers. Neither the consumers sales and service tax law nor the use tax law authorizes the taking of a vendor's collection allowance.

128.6. Refund of Taxes on Mail Order Sales.

128.6.1. When there has been a final adjudication that any tax upon a mail order sales transaction was levied or collected, or both levied and collected, contrary to the Constitution of the United States, or the Constitution of West Virginia, or both Constitutions, the Tax Commissioner will, in accordance with Section 128.6.2 of these regulations, refund the amount of tax to the person who paid the tax or, at the taxpayer's election, establish a tax credit.

128.6.2. To receive a refund or credit of consumers sales and service tax or use tax, the person who paid the tax must file a claim for refund within two years from the date the tax was paid to the vendor or directly to the State Tax Commissioner. Such claim must include the following information.

128.6.2.1. A description of the tangible personal property or taxable service purchased;

128.6.2.2. The date on which the purchase was made;

128.6.2.3. The purchase price of the item(s) or service(s);

128.6.2.4. The amount of West Virginia consumers sales or use taxes paid for such item;

128.6.2.5. The name and mailing address of the seller from which the purchase of the tangible personal property or taxable service was made;

128.6.2.6. The citation of the court decision or decisions upon which the claim for refund is based;

128.6.2.7. A copy of the sales invoice made out by the seller of the tangible personal property or taxable service; and

128.6.2.8. Any other information that is required by the State Tax Department in order to verify the authenticity or accuracy of the claim for refund.

128.6.3. The Tax Commissioner may refuse to grant a claim for refund or credit if the claim for refund is incomplete or fails to contain all of the information required by Section 128.6.2 of these regulations.

128.6.4. Upon formal approval of a complete claim for refund, the Tax Commissioner shall promptly issue his requisition on the Treasury. If a claim for credit is approved, the Tax Commissioner shall promptly establish the amount of the credit.