W. Va. Code R. § 110-15K-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 110-15K-5 - Claiming the Exemption

5.1. Any person having a right or claim to the exemption set forth in this rule may claim the exemption by:

5.1.a. First paying to the vendor the tax imposed by this article and then applying to the Tax Commissioner for a refund or credit; or

5.1.b. Providing to the vendor his or her West Virginia direct pay permit number, as provided in §11-15-9d and §11-15a-3d of the West Virginia Code and W. Va. Code State R. §110-15-9c; or

5.1.c. A person having a right or claim to the exemptionset forth in this Rule may, in lieu of paying the sales tax and filing a claim for refund, execute a certificate of exemption, in the form required by the Tax Commissioner, and deliver it to the vendor of the property or service in the manner required by the Tax Commissioner. The Tax Commissioner finds that the requirement that permission to execute such a certificate be granted specifically upon application of the Tax Commissioner is unnecessary, and thereby generally grants permission to execute such a certificate.

5.2. Any person having a right or claim to the exemption set forth in this rule may apply for a refund or credit under subdivision 5.1.a., by timely filing a claim for refund or credit of the consumers sales and service tax or the use tax overpayments on such form and in such manner as the Tax Commissioner may require and in accordance with the requirements of §11-10-1, et seq. and §11-15-1, et seq. of the West Virginia Code and W. Va. Code State R. §110-15-1, et seq., and W. Va. Code State R. §110-10L-1, et seq.

5.3. Any person having a right or claim to the exemption set forth in this rule may use an exemption certificate as set forth under subdivision 5.1.c., as follows:

5.3.a. To purchase tangible personal property or services using an exemption certificate, a person must:

5.3.a.1. Apply for and obtain a valid West Virginia Business Registration Certificate; and

5.3.a.2. Properly complete an Exemption Certificate, in the form required by the Tax Commissioner, and present it to the vendor or retailer.

5.3.b. If the steps under subdivision 5.3.a. have been completed, the person claiming the exemption has applied for and received permission to use an exemption certificate under subdivision 5.1.c.:

5.3.b.1. If the Tax Commissioner believes that the exemption certificate was incomplete, deficient or otherwise erroneous, or that the taxpayer was not entitled to claim the exemption for any reason, the Tax Commissioner may proceed to investigate and determine or estimate the tax liability and make an assessment therefor as permitted under W. Va. Code §11-10-1, et seq.

5.3.b.2. In order that the Tax Department may verify the taxable and nontaxable sales upon audit, a taxpayer claiming an exemption under this rule must retain the appropriate books and records supporting its claim for exemption for at least three (3) years, or for so long as the taxable period remains open for assessment or refund, whichever is greater.

5.3.c. In order that the Tax Department may verify a vendor's or a retailer's taxable and nontaxable sales upon audit, it is necessary that such persons retain executed exemption certificates and other appropriate books and records for at least three (3) years or for so long as the taxable period remains open for assessment or refund whichever is greater. An exemption certificate, to be valid, must be given by the vendee and accepted by the vendor at the time of the sale and not thereafter. If a vendor lists nontaxable sales or services for which he has no exemption certificates or material purchase certificate, the Tax Department will presume such sales were taxable and make an assessment of tax against the vendor.

W. Va. Code R. § 110-15K-5