W. Va. Code R. § 110-17-12

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

Section 110-17-12 - Records And Reports

12.1. Records - Each person required to file a report under W. Va. Code § 11-17-1 et seq. shall make and keep the records as prescribed by the Tax Commissioner that are necessary to substantiate the information on the returns, including, but not limited to, inventories, receipts, disbursements and sales, for a period of time not less than three years.

12.1.1. Unless otherwise permitted in writing by the Tax Commissioner, each delivery ticket or invoice for each purchase or sale of cigarettes and other tobacco products shall be recorded upon a serially numbered invoice showing the name and address of the seller and the purchaser, point of delivery, the date of delivery, quantity, and price of the tobacco product delivered in this State. The tax shall be set out separately, or the invoice shall indicate that the tax is included in the total price. The ticket or invoice shall include any other reasonable information as the Tax Commissioner may require.

12.1.2. Each wholesaler, sub-jobber, retail dealer and vending machine operator in this State and each out-of-State wholesaler, sub-jobber and vending machine operator authorized to do business in this State shall obtain invoices showing the amount and value of each shipment received, the date of receipt, and the name of the shipper. All invoices shall be retained for a period of at least three years and are subject to inspection by the Tax Commissioner.

12.1.3. The manufacturers shall furnish information as required by the Tax Commissioner to aid in auditing of the excise tax returns for tobacco products. The wholesaler shall indicate the exact date the tobacco products were received into stock. Each invoice shall reflect any shortage in the shipment in order to account for only those tobacco products that are of a salable quality.

12.1.4. All equipment, books, papers, invoices and records of any manufacturer, importer, wholesaler, sub-jobber, vending machine operator or retail dealer in this State, showing sales, receipts and purchases of cigarettes and other_tobacco products shall, at all times during the usual business hours of the day, be open for the inspection of the Tax Commissioner, and the Tax Commissioner may investigate and examine the stock of cigarettes and other tobacco products in and upon any premises where they are placed, stored or sold, for the purpose of determining compliance with W. Va. Code § 11-17-1 et seq. and this rule. The Tax Commissioner, under the authority of W. Va. Code § 11-17-1 et seq., may also examine witnesses under oath in order to obtain and inspect the records, books and papers of any person required to file a report.

12.2. Reports.

12.2.1. Each wholesaler, sub-jobber and vending machine operator in this State and each out-of-state wholesaler, sub-jobber and vending machine operator authorized to do business in this State shall each month file a Monthly Report For Distributors and/or Wholesalers of Cigarettes, including all required schedules and other information, with the Tax Commissioner. Additionally, the Tax Commissioner may require manufacturers, importers and common carriers to file a monthly report reflecting information the Tax Commissioner considers necessary to assure the proper assessment and payment of the excise tax. The Tax Commissioner may also require retail dealers to furnish similar reports. The report to be filed by wholesalers, subjobbers, vending machine operators and retailers, which may from time to time be amended by the Tax commissioner so as to require additional information, shall disclose the following information:

12.2.1.a. A monthly inventory taken at the close of business on the last business day of the reporting period of all stamped cigarettes, all unstamped cigarettes and all other tobacco products;

12.2.1.b. Total purchases of tobacco products from all sources, supported by copies of invoices from each source of supply;

12.2.1.c. Total sales of stamped and unstamped tobacco products supported by sales slips or invoices issued to each customer and or records of sales through vending machines;

12.2.1.d. Total sales of tobacco products outside West Virginia. Separate records shall be maintained for each state into which tobacco products are shipped. Complete records shall be maintained for any sales or transactions for which tax exemption is to be claimed. A stamp or meter account shall be maintained. The record shall show:

12.2.1.d.1. The number of stamps and meter impressions on hand the last day of the previous reporting period;

12.2.1.d.2. The number of stamps and meter impressions purchased during the reporting period;

12.2.1.d.3. The number of stamps and the total number of meter impressions affixed during the reporting period; and

12.2.1.d.4. The number of stamps and meter impressions on hand at close of business on the last business day of the reporting period.

12.2.2. Each wholesaler, sub-jobber and vending machine operator in this State and each out-of-state wholesaler, sub-jobber and vending machine operator authorized to do business in this State shall file the report with the Tax Commissioner on or before the fifteenth day of each month immediately following the reporting period. The excise tax shown due on the monthly report shall be remitted on or before the due date of the monthly report. The due date shall be determined without regard to any authorized extension of time for filing the monthly report. Incorrect or incomplete reports will be returned by the Tax Commissioner or an amended report will be requested. Whenever a dealer fails to file a report within fifteen days after formal notification by the Tax Commissioner or fails to submit additional evidence or records required by the Tax Commissioner, the dealer shall be classified as delinquent. The Tax Commissioner shall assess a penalty of $25.00 for each month or part of a month that a return is late. In addition to the monetary penalty, the Tax Commissioner may deny the discount on stamp or meter impression purchases. The Tax Commissioner may suspend, revoke or cancel the Business Registration Certificate of the delinquent_taxpayer to deal in cigarettes and other tobacco products following the second offense. Repeated infractions shall result in a cancellation of the authorization to deal in cigarettes and other tobacco products.

12.2.3. The taxpayer shall maintain a complete record is to be maintained by the taxpayer showing the date a requisition for stamps was submitted to the Commissioner, the serial numbers, the date and quantity of stamps received, and the quantity of stamps affixed daily.

12.2.4. Each dealer using a metering device shall maintain a complete record at all times, showing the exact usage of the machine. This record should be maintained daily and available at all times for inspection by the Tax Commissioner.

12.2.5. Because administration of the registration and tax administration functions of the Tax commissioner will be facilitated by the exchange of information with the Attorney General relating to trade, transport, possession, transfer and sales of cigarettes and tobacco products and related products in this State and elsewhere, and because there is a material interest of the Attorney General in the enforcement and administration of W. Va. Code § 16-9B-1 et seq, the Tax Commissioner is authorized to enter into an exchange of information agreement with the West Virginia Attorney General and provide to that Office any information the Tax Commissioner considers to be relevant relating to trade, transport, possession, transfer and sales of cigarette and tobacco products, and related products, including but not limited to cigarette tax returns and information. For this purpose, the term "cigarette" has the following meaning.

12.2.5.a. "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains:

(1) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or

(2) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or

(3) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette as that term is herein described. The term "cigarette" includes "roll-your-own" tobacco, which means any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. For purposes of this definition of the term "cigarette," 0.09 ounces of "roll-your-own" tobacco shall constitute one individual cigarette or the equivalent of one cigarette.

12.3. Imported Cigarettes. Each authorized Wholesaler or Distributor that affixes stamps to cigarettes imported into the United States shall file the following information with each Monthly Report For Distributors and/or Wholesalers of Cigarettes on or before the fifteenth day of each month covering the transactions of the preceding month:

12.3.1. A copy of the permit issued pursuant to the Internal Revenue Code, 26 U.S.C. § 5713, to the importer importing the cigarettes into the United States and allowing the importer to import the cigarettes. A copy of the permit shall be filed once a year at the time determined by the Tax Commissioner, but the permit number shall be annotated on the Monthly Report;

12.3.2. A copy of the customs form containing, with respect to the imported cigarettes, the Internal Revenue Service tax information required by the U.S. Bureau of Alcohol, Tobacco and Firearms;

12.3.3. A statement, signed by an individual, officer, agent, employee or representative of the authorized wholesaler or distributor under penalty of perjury, that shall be treated as confidential tax information under W. Va. Code § 11-10-5d, and exempt from disclosure under the Freedom of Information Act, W. Va. Code § 29B-1-1 et seq., identifying the brand and brand styles of all the imported cigarettes, the quantity of each brand style of the imported cigarettes, and the supplier of the imported cigarettes. This subdivision shall not be construed to prohibit disclosure of the information to the Attorney general pursuant to subdivision 12.2.4 of this rule;

12.3.4. A statement signed by the individual, officer, agent, employee or representative of the authorized wholesaler or distributor under penalty of perjury, which shall not be treated as confidential or exempt from disclosure, that separately identifies the brands and brand styles of the imported cigarettes; and

12.3.5. A statement signed by an officer of the manufacturer or importer under penalty of perjury, certifying that the manufacturer or importer has complied with the package health warning and ingredient reporting requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333 and 1335 a, with respect to the imported cigarettes and certifying whether the manufacturer is, or is not, a participating tobacco manufacturer within the meaning of W. Va. Code § 16-9B-1 et seq.

12.3.5.a. The manufacturer or importer shall file the Federal Cigarette Labeling and Advertising Act compliance statement with the United States Department of Health and Human Services and the Tax Commissioner on an annual basis and when the ingredients of the cigarettes change or there is a change in the warning requirements. Additionally, cigarettes shall not be released from the United States Customs Services without the appropriate labeling.

12.3.5.a.1. Any cigarettes found without either the mandated stamps or labeling are contraband goods and may be seized by the Tax Commissioner, or by any peace officer of the State at the direction of the Tax Commissioner, without a warrant.

12.3.5.b. The provisions of W. Va. Code §§ 16-9B-1 et seq. and 60-9-3 impose on tobacco product manufacturers, as defined in W. Va. Code § 16-9B-3, the requirement to be either a participating manufacturer and fulfill financial obligations under the master settlement agreement or to place certain amounts of moneys in a qualified escrow fund. Because the status of the manufacturer is monitored to assure satisfaction of financial obligations, the manufacturer or importer shall include with its West Virginia tobacco excise tax filings a statement indicating whether the manufacturer is, or is not, a participating tobacco manufacturer within the meaning of that statute.

W. Va. Code R. § 110-17-12