W. Va. Code R. § 110-15L-5

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

Section 110-15L-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:

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

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

5.1.3. A person having a right or claim to the exemption set forth in this rule may, in lieu of paying the sales tax and filing a claim for refund, execute an exemption certificate, 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 so generally grants permission to execute such a certificate. The form required to apply for an exemption certificate is available online at https://tax.wv.gov.

5.2. Any person having a right or claim to the exemption set forth in this rule may apply for a refund or credit 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 W.Va. Code and W. Va. Code State R. § 110-15-1, et seq., and W. Va. Code State R. § 110-10L-1, et seq. The form required to claim a refund or credit is available online at https://tax.wv.gov.

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

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

5.3.1.a. Apply for and obtain a valid West Virginia Business Registration Certificate. The form required to apply for a West Virginia Business Registration Certificate is available at https://tax.wv.gov; and

5.3.1.b. Properly complete an exemption certificate, in the form required by the Tax Commissioner, and present it to the vendor or retailer.

5.3.2. An exemption may be rendered void and invalid due to fraud, error, deficient or incomplete records or documentation, failure to retain records, or acceptance or use of an exemption certificate in bad faith.

5.3.2.a. 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.

5.3.2.b. 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.

5.3.3. 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 the vendor has no exemption certificate, the Tax Department will presume such sales were taxable and assess the tax against the vendor.

W. Va. Code R. § 110-15L-5