W. Va. Code R. § 110-17-3
Current through Register Vol. XLI, No. 50, December 13, 2024
Section 110-17-3 - Tobacco Products Dealer Requirements3.1. Wholesalers and Sub-jobbers - Every wholesaler or sub-jobber, whether a resident or non-resident of this State, engaging in the business of selling tax-paid tobacco products in this State shall first apply for and obtain a Business Registration Certificate and the license required by W. Va. Code § 11-12-4a for the purpose of selling tax-paid tobacco products and cigarette wrappers. Application for the Business Registration Certificate and license shall be made on the forms provided by the Tax Commissioner. 3.1.1. A wholesaler may not sell tax-paid tobacco products to any person in this State other than another wholesaler, a sub-jobber or a retail dealer, and a person in this State other than a wholesaler or sub-jobber may not sell tax-paid tobacco products to a retail dealer.3.1.2. The use or application of any kind or type of West Virginia tax stamp other than those authorized by the Tax Commissioner shall be considered a violation of this rule and subject to the penalties provided in W. Va. Code § 11-17-1 et seq.3.1.3. Unless they have been previously affixed, each wholesaler in this State shall affix the required West Virginia tax stamps prior to delivery of any cigarettes to any person in this State.3.2. Retail Dealers - No retail dealer may offer for sale or sell any tax-paid tobacco products in West Virginia without first having applied for and obtained a Business Registration Certificate and the license required by W. Va. Code § 11-12-4a for the purpose of selling tobacco products and cigarette wrappers. Application shall be made on forms prescribed and furnished by the Tax Commissioner.3.3. Tobacco products or cigarette wrapper vending machine operators - Each vending machine operator shall apply for and obtain a Business Registration Certificate and the license required by W. Va. Code § 11-12-4a for the purpose of selling tobacco products and cigarette wrappers before selling or offering for sale any tax-paid tobacco products or cigarette wrappers through a vending machine. Whenever any cigarette vending machine operator purchases tax-not-paid tobacco products directly from the manufacturer, the operator is considered to be a wholesaler and is liable for both the payment of the proper amount of excise tax and affixing the required stamps. 3.3.1. Although tobacco product vending machine operators, like wholesalers, purchase tax-not-paid tobacco products directly from the manufacturer, the sale of tobacco products through vending machines is construed as a sale at retail. Therefore, vending machine operators shall also be classified as retail dealers.3.3.2. It is the location of the vending machine and not the vending machine that is subject to Business Registration. The person responsible for stocking the machine and collecting the money from sales shall obtain the Business Registration Certificate for the operation of a tobacco products vending machine. 3.3.2.a. If the vending machine is owned by a person who leases the machine to another person who then places the machine at a business location and the lessee assures the machine is stocked and collects the money from the sales, the lessee shall obtain a Business Registration Certificate for the location.3.3.2.b. If the vending machine is owned by a person who leases the machine to another person who then leases the machines to a business establishment and the business establishment assures the machine is stocked and collects the money from the sales, the machine is covered by the business establishment's Business Registration Certificate.3.3.2.c. If the vending machine is owned by a person who places it at a business location and assures the machine is stocked and collects the money from the sales, the owner of the machine shall obtain a Business Registration Certificate for the location.3.3.2.d. If the vending machine is owned by a person who leases the machine to a business establishment, and the business establishment assures the machine is stocked and collects the money from the sales, the machine is covered by the business establishment's Business Registration Certificate.3.3.2.e. If the vending machine is owned by the business establishment where it is situated, the machine is covered by the establishment's Business Registration Certificate.3.3.2.f. If a person has more than one vending machine at a location, only one Business Registration Certificate is required for all of the machines at that location.3.3.3. Each tobacco products vending machine operator in this State shall for each shipment of tobacco products obtain an invoice showing the amount and value of the shipment, the date of receipt of the shipment, and the name of the shipper. The operator shall retain the invoice for a period of three years, and the invoice is subject to inspection by the Tax Commissioner. The operator shall file a monthly report showing total purchases of tax-paid and of tax-not-paid tobacco products and sales of tobacco products, and any other information the Tax Commissioner may require on forms provided by the Tax Commissioner.3.3.4. Records of tobacco product vending machine operators are subject to audit by the Tax Commissioner and the vending machine operators shall make records available at any time during regular business hours for that purpose.3.3.5. If tax-not-paid tobacco products are found in any vending machine, both the tobacco products and the vending machine 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.3.3.6. No tobacco product vending machines shall be placed in operation within this State that is not constructed to display at least one package of tobacco product in each column. All cigarettes shall be placed in the machines in such a manner that when they are displayed, the stamps affixed to the package are clearly visible.3.4. A tobacco grower is considered to not be a manufacturer, wholesaler, subjobber, retailer or vending machine operator and therefore is not subject to the licensing required by W. Va. Code § 11-12-4a unless the tobacco grower is actually performing the activities of a manufacturer, wholesaler, subjopbber, retailer or vending machine operator.W. Va. Code R. § 110-17-3