W. Va. Code R. § 110-19-2

Current through Register Vol. XLI, No. 49, December 6, 2024

Section 110-19-2 - Definitions

As used in these regulations and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed herein, and shall apply in the singular or in the plural.

2.1. "Bottled soft drinks" shall include any and all nonalcoholic beverages, whether carbonated or not, such as soda water, ginger ale, Coca Cola, lime cola, Pepsi Cola, Dr. Pepper, root beer, carbonated water, orangeade, lemonade, fruit juice when any plain or carbonated water, flavoring or syrup is added, or any and all preparations commonly referred to as "soft drinks" of whatever kind, which are closed and sealed in glass, paper, or any other type of container, envelope, package or bottle, whether manufactured with or without the use of any syrup. The term "bottled soft drinks" shall not include fluid milk to which no flavoring has been added, or natural undiluted fruit juice or vegetable juice.

2.1.1. The term "bottled soft drinks" also does not include plain water that is not carbonated artificially, but which is naturally carbonated before it is removed from the ground. See also Section 3.3.4 of these regulations.

2.1.2. The term "nonalcoholic beverages" means and includes all beverages which are not among the alcoholic beverages defined in the West Virginia Code and regulations thereto, and which contain less than one half percent (.5%) alcohol by volume. Alcoholic beverages include "alcoholic liquor," "beer," "spirits" and "wine" as defined in W. Va. Code '60-1-5; "fortified wine" as defined in W. Va. Code '60-8-2; "nonintoxicating beer" as defined in W. Va. Code ''60-1-5 and 11-16-2; and any other beverage which contains at least one half percent (.5%) alcohol by volume. Nonalcoholic beverages, which are subject to the soft drink tax, are exempt from taxation or regulation by the Alcoholic Beverage Commission, and are exclusively subject to the jurisdiction of the Department of Tax and Revenue. Examples of nonalcoholic beverages include near beer, malt coolers, and wine coolers when such beverages contain less than one half percent (.5%) alcohol by volume.

2.2. "Natural undiluted fruit juice" shall mean the liquid resulting from the pressing of fruit with or without sweetener being added, or the liquid resulting from the reconstitution of natural fruit juice concentrate by the restoration of water to dehydrated natural fruit juice with or without sweetener being added.

2.3. "Natural undiluted vegetable juice" shall mean the liquid resulting from the pressing of vegetables with or without sweetener being added or the liquid resulting from the reconstitution of natural vegetable juice concentrate by the restoration of water to dehydrated natural vegetable juice with or without sweetener being added.

2.4. "Sweetener" shall mean sugar only, artificial or natural, which singularly flavors the taste of a natural undiluted fruit juice or natural undiluted vegetable juice.

2.5. "Soft drink syrups and powders" shall include the compound mixture or the basic ingredients, whether dry or liquid, practically and commercially usable in making, mixing or compounding soft drinks by the mixing thereof with carbonated or plain water, ice, fruit, milk or any other product suitable to make a soft drink, among such syrups being such products as Coca Cola syrup, Chero Cola syrup, Pepsi Cola syrup, Dr. Pepper syrup, root beer syrup, Nu-Grape syrup, lemon syrup, vanilla syrup, chocolate syrup, cherry smash syrup, rock candy syrup, simple syrup, chocolate drink powder, malt drink powder, or any other prepared syrups or powders sold or used for the purpose of mixing soft drinks commercially at soda fountains, restaurants or similar places as well as those powder bases prepared for the purpose of domestically mixing soft drinks such as Kool Aid, Oh Boy drink, Tip Top, Miracle Aid and all other similar products.

2.5.1. Example. - Although not specifically listed in the definition of "soft drink syrups and powders," Tang would be classified as a soft drink powder. Tang is a powder base prepared for the purpose of domestically mixing a soft drink similar to Kool Aid. The fact that a soft drink product such as Tang may often be consumed at breakfast would not exempt it from the tax, any more than soft drinks such as Pepsi Cola would be exempt when they are consumed at breakfast. The taxability of soft drink products is not affected by how or when they may be used. Nor does the fact that Tang has vitamin C added to it cause it to be exempt, any more than soft drinks such as Coca Cola would be exempt if they were fortified with vitamins.

2.6. "Simple syrup" shall mean the making, mixing, compounding or manufacturing, by dissolving sugar and water or any other mixtures that will create simple syrup to which may be or may not be added concentrates or extracts.

2.7. "Person" shall mean and include an individual, firm, partnership, association or corporation.

2.8. "Wholesale dealer" includes only those persons who sell any bottled soft drink or soft drink syrup to retail dealers for the purpose of resale.

2.9. "Retail dealer" includes every person other than a wholesale dealer mixing, making, compounding or manufacturing any drink from a soft drink syrup or powder base, or a person selling such syrup or powder.

2.10. "Distributor" shall mean any person who manufactures, bottles, produces or purchases for sale to retail dealers any bottled soft drink or soft drink syrup.

2.11. "Commissioner" means the State Tax Commissioner, and where the meaning of the context requires, all deputies and employees duly authorized by him.

2.12. "Domestic use" shall mean for use exclusively in the home.

2.13. "Commercial use" shall mean for use by restaurants, drive-ins, theaters, canteens, schools, hospitals or any other vendor offering finished drinks to the consumer.

2.14. "Tax stamps or indicia" shall mean any soft drink stamp authorized by the Commissioner to serve as such stamp, and shall be of the design and color prescribed by the Commissioner.

2.15. "Tax crowns" shall mean any caps, lids, labels, cartons, ends or crowns authorized by the Commissioner and shall be of the design prescribed by the Commissioner.

2.15.1. Any caps, lids, labels, cartons, ends or crowns which do not comply with the Commissioner's design specifications shall not be considered tax crowns. See Section 6.7.5.1.

2.16. "Stamped soft drinks" means that the West Virginia tax stamp or tax crown has been affixed to the soft drink lid or neck of the container.

2.17. "Unstamped soft drinks" means that the West Virginia tax stamp or tax crown has not been affixed to the soft drink container.

2.18. "Tax" or "taxes" means and includes additions to tax, penalties and interest, unless the intention to give the same or more limited meaning is disclosed by the context.

2.19. "Taxpayer" means and includes any person required to file a report or return for the soft drinks tax, and any person liable for payment of the soft drinks tax.

W. Va. Code R. § 110-19-2