W. Va. Code R. § 110-17-2

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

Section 110-17-2 - Definitions

When used in this rule and unless the context clearly requires a different meaning, the following terms have the meaning ascribed in this section.

2.1. "Authorized wholesaler" is a wholesale dealer of cigarettes or other tobacco products authorized to do business in this State and who has received a valid West Virginia business registration certificate prior to the sale or delivery of any tobacco product to any retail dealer or subjobber in this State.

2.2. "Business Registration Certificate" means the West Virginia Business Registration Certificate required by W. Va. Code § 11-12-4a.

2.3. "Cigarette" means:

2.3.1. Any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any ingredient, the wrapping or cover of which is made of paper or any substance or material, except tobacco.

2.3.2. 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 packing and labeling, is likely to be offered to, or purchased by, consumers as a cigarette.

2.4. "Cigarette wrappers" means paper, or any other material except tobacco, prepared for use or that is likely to be used by consumers to make cigarettes.

2.5. "Code" means the Code of West Virginia of one thousand nine hundred thirty-three, as amended.

2.6. "Commissioner" or "Tax Commissioner" means the West Virginia Tax Commissioner, or his or her delegate.

2.7. "Consumer" means a person who receives or in any way comes into possession of tobacco products for the purpose of consuming or giving them away or disposing of them in any way other than by sale, barter or exchange.

2.8. "Counterfeit stamp" means any stamp, label or print, indicium or character, that evidences or purports to evidence the payment of any tax levied under W. Va. Code § 11-17-1 et seq., and

2.8.1. has not been printed, manufactured or made by authority of the Commissioner, and

2.8.2. has not been issued, sold, or circulated by the Commissioner.

2.9. "Excise tax" means the tax imposed by W. Va. Code § 11-17-1 et seq.

2.10. ''Importer'' means:

2.10.1. Any person in the United States to whom non-tax-paid tobacco products or cigarette papers or tubes manufactured in a foreign country, Puerto Rico, the Virgin Islands, or a possession of the United States are shipped or consigned;

2.10.2. Any person who removes cigars or cigarettes for sale or consumption in the United States from a customs bonded manufacturing warehouse; and

2.10.3. Any person who smuggles or otherwise unlawfully brings tobacco products or cigarette papers or tubes into the United States.

2.11. "Manufacturer" means a person who manufactures or produces a tobacco product but does not include a tobacco grower.

2.12. "Other tobacco products" or "tobacco products other than cigarettes" means snuff and chewing tobacco and any other tobacco product that is intended by the seller to be consumed by means other than smoking and any cigar, pipe tobacco or other tobacco product other than cigarettes.

2.13. "Package" means the individual package, box or other container in or from which retail sales of tobacco products are normally made or intended to be made.

2.14. "Person" means any individual, firm, association, company, partnership, corporation, limited liability company, joint-stock company, club, agency, syndicate, other legal entity, municipal corporation or other political subdivision of this State, trust, receiver, trustee, fiduciary or conservator, and when used in connection with any penalties imposed by W. Va. Code § 11-17-1 et seq., means and includes officers, directors, trustees or members of any firm, copartnership, association, corporation, limited liability company, trust or any other unit acting as a group.

2.15. "Place of business" means a place where a tobacco product is sold or where a tobacco product is brought or kept for the purpose of sale or consumption, including a vessel, airplane, train or vending machine; Provided, That "place of business" does not include a farmers market or a tobacco auction house unless tobacco products are sold at the location.

2.16. "Retail dealer" means every person in this State, other than a wholesaler or sub-jobber, engaged in the business of selling tobacco products at retail to a consumer or to any person for any purpose other than resale but does not include a tobacco grower when selling tobacco to a manufacturer.

2.17. "Sale" means selling, exchange, transfer of title, barter, gift, offer for sale or distribution or disposition of tobacco products.

2.18. "Sale at retail" or "retail sale" means a sale to a consumer or to any person for any purpose other than resale.

2.19. "Sale by wholesaler" means and includes any bona fide transfer of title to tobacco products by a wholesaler for a valuable consideration, made in the ordinary course of trade or in the usual conduct of the wholesaler's business.

2.20. "Stamp" or "Meter impression" means any cigarette stamp, whether applied by hand, or any meter or ink impression or other indicia, or by heat, and authorized by the Tax Commissioner to serve as a stamp, and shall be of the design and color as prescribed by the Commissioner.

2.21. "Stamped cigarettes" means that the stamp as required by W. Va. Code § 11-17-1 et seq. has been lawfully affixed to the bottom of the package of cigarettes.

2.22. "Sub-jobber" or "sub-jobber dealer" means and includes any person engaged in this State in the business of purchasing tax-paid tobacco products from another person who had purchased from the manufacturer or importer and who purchases the tax-paid tobacco products solely for the purpose of bona fide resale to retail dealers.

2.23. "This State" means the State of West Virginia.

2.24. "Tax-not-paid tobacco product" means a tobacco product upon which the excise tax has not been paid.

2.25. "Tax-paid tobacco product" means a tobacco product upon which the excise tax has been paid.

2.26. "Tobacco grower" means a person who has a direct financial interest in planting, cultivating and harvesting tobacco for sale. "Tobacco grower" includes a person who possesses a quota to market tobacco as administered by the United States Department of Agriculture.

2.27. "Tobacco products" includes cigarettes, and other tobacco products that have been manufactured by a manufacturer, but does not include planted or cultivated tobacco or harvested tobacco that has not completed the manufacturing activity.

2.28. "Transporter" means a person importing or transporting into this State a tobacco product obtained from a source located outside this State, or transporting within this State tobacco products belonging to another person.

2.29. "Unstamped cigarettes" means that the stamp as required by W. Va. Code § 11-17-1 et seq. has not been affixed to the bottom of the package of cigarettes.

2.30. "Vending machine operator" means any person engaged in this State in the business of operating one or more vending machines for the sale of any tobacco products.

2.31. "Wholesale price" means the gross invoice price, including all federal excise taxes, at which the manufacturer of the tobacco product sells the tobacco product to unaffiliated distributors, excluding all trade discounts and other reductions in the manufacturer price. If the taxpayer buys from a person who is not the manufacturer of the tobacco product, "wholesale price" means the gross invoice price at which the taxpayer purchases the tobacco product, including all federal excise taxes and excluding all trade discounts and other similar reductions in price.

2.32. "Wholesaler" or "wholesale dealer" means and includes any person engaged in this State in the business of purchasing tax-not-paid tobacco products directly from a manufacturer, or any other person as may be approved by the Tax Commissioner. Any distributor, dealer, subjobber, subjobber dealer, retailer or any other person that imports or transports tax-not-paid tobacco products into this state, or that causes tax-not-paid tobacco products to be imported or transported into this state is liable for the Excise Tax. No wholesaler or person may purchase tax-not-paid tobacco products from any seller not approved by the Tax Commissioner.

W. Va. Code R. § 110-17-2