W. Va. Code R. § 110-26-1a

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

Section 110-26-1a - Definitions

For purposes of these rules and regulations, the following terms are hereby defined.

1a.1. "Tax Year" or "taxable year" means the one year period adopted by the municipal ordinance providing for a municipal business and occupation tax authorized under W. Va. Code '8-13-5. Such tax year may be the calendar year, the municipality's fiscal year, the taxpayer's fiscal year, or any other year as determined under the ordinance imposing the municipal business and occupation tax. Where no tax year is specified, and no provision is made for determining the taxpayer's tax year under the ordinance, the "tax year" shall be the calendar year.

1a.2. "Municipality" is a word of art and shall mean and include any Class I, Class II and Class III city and any Class IV town or village, heretofore or hereafter incorporated as a municipal corporation under the laws of this State.

1a.3. "Town or village" is a term of art and shall, notwithstanding the provisions of W. Va. Code '2-2-10 mean, include and be limited to any Class IV town or village, as classified in W. Va. Code '8-1-3 heretofore or hereafter incorporated as a municipal corporation under the laws of this State, however created and whether operating under (1) a special legislative charter, (2) general law, or (3) a combination of the foregoing.

1a.5. "Governing body" shall mean the mayor and council together, the council, the board of directors, the commission, or other board or body of any municipality, by whatever name called, as the case may be, charged with the responsibility of enacting ordinances and determining the public policy of such municipality; and in certain articles dealing with intergovernmental relations shall also mean the county court [county commission] of any county or governing board of other units of government referred to in said articles.

1a.6. "Councilmen" shall mean the members of a governing body, by whatever name such members may be called.

1a.7. "Mayor" shall mean the individual called mayor unless as to a particular municipality a commissioner (in a commission form of government) or the city manager (in a manager form of government) is designated or constituted by charter provision as the principal or chief executive officer or chief administrator thereof, in which event the term "mayor" shall mean as to such municipality such commissioner or city manager unless as to any particular power, authority, duty or function specified in this chapter to be exercised, discharged or fulfilled by the mayor it is provided by charter provision or ordinance that such particular power, authority, duty or function shall be exercised, discharged or fulfilled by the individual called mayor and not by a commissioner or city manager, in which event such particular power, authority, duty or function shall in fact be exercised, discharged or fulfilled in and for such municipality by the individual called mayor: Provided, That in the exercise and discharge of the ex officio justice of the peace [magistrate], conservator of the peace and mayor's court functions specified in this chapter, the term "mayor" shall always mean the individual called mayor.

1a.8. "Recorder" shall mean the recorder, clerk or other municipal officer, by whatever name called, charged with the responsibility of keeping the journal of the proceedings of the governing body of the municipality and other municipal records.

1a.9. "Treasurer" shall mean the treasurer or other municipal officer, by whatever name called, exercising the power and authority commonly exercised by a treasurer.

1a.10. "Administrative authority" shall mean the officer, commission or person responsible for the conduct and management of the affairs of the municipality in accordance with the charter, general law and the ordinances, resolutions and orders of the governing body thereof.

1a.11. "Charter" shall mean, except where specific reference is made to a particular type of charter, either a special legislative charter (whether or not amended under the provisions of former W. Va. Code '8A-1-1 et seq. or under W. Va. Code '8-4-1 et seq., and although so amended, such special legislative charter shall, for the purposes of these regulations, remain a special legislative charter), or a home rule charter framed and adopted or revised as a whole or amended by a city under the provisions of former W. Va. Code '8A-1-1 et seq. or under the provisions of W. Va. Code '8-3-1 et seq. or 8-4-1 et seq.

1a.12. "Ordinances" shall mean the ordinances and laws enacted by the governing body of a municipality in the exercise of its legislative power.

1a.13. "County court" ["county commission"] shall mean the governmental body created by Section 22, article VIII of the Constitution of this State, or any existing tribunal created in lieu of a county court [county commission].

1a.14. "Code" shall mean the Code of West Virginia, one thousand nine hundred thirty-one, as heretofore and hereafter amended.

1a.15. The term "Person" or the term "Company", herein used interchangeably, includes any individual, firm, partnership, co-partnership, joint adventure, association, corporation, trust, or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.

1a.16. "Taxpayer" means any person liable for any tax hereunder.

1a.17. "Sale", "Sales" or "Selling" includes any transfer of ownership of, or title to, property, whether for money or in exchange for other property. When property is exchanged for other property rather than for money, the taxpayer must place a value on the property received and report the same for municipal business and occupation tax purposes as if money were received.

1a.18. The term "Sale Price" means the consideration whether money, credits, price, or other property expressed in the terms of money, paid or delivered by a buyer to a seller, all without any deduction, on account of the cost of tangible property sold, the cost of materials used, labor cost, interest, discount, delivery cost, taxes or any other expenses whatsoever paid or accrued, and without any deduction on account of losses.

1a.19. The term "Gross Proceeds of Sales" means the value proceeding or accruing from the sale of tangible property without any deduction on account of cost of property sold, the cost of materials used, labor costs, interest, discount paid, delivery cost, taxes, or any other expense whatsoever paid or accrued and without any deduction on account of losses.

1a.20. "Gross Income" means all income from whatever source derived, unless excluded by law. Gross income shall include income realized in any form, whether in money, property, or services. Gross income means the gross receipts of the taxpayer, other than a banking or financial business, received as compensation for personal services and the gross receipts of the taxpayer derived from trade, business, commerce, or sales and the value proceeding or accruing from the sale of tangible property (real or personal), or service, or both. Gross income includes all receipts by the reason of the investment of the capital of the business engaged in and shall include rents, royalties, fees, reimbursed cost or expenses or other emoluments however designated. Gross income includes all interest, carrying charges, fees or other like income, however denominated, derived by the taxpayer from repetitive carrying of accounts, in the regular course and conduct of his business, and extension of credit in connection with the sale of any tangible property or service.

1a.20.1. If services or property are paid for other than in money, the fair market value of the property or service taken in payment must be included in gross income.

1a.20.2. No deduction shall be allowed against gross income for the cost of property sold, the cost of materials used, labor costs, taxes, royalties paid in cash or in kind or otherwise, interest or discount paid or any other expense whatsoever.

1a.20.3. For the definition of gross income of a banking or financial business, See Section 2k.2 of these rules and regulations.

1a.20.4. Examples of gross income are:

1a.20.4.1. A construction company, which desires to purchase a piece of heavy equipment, does not have available capital to make such purchase and, therefore, transfers title to a parcel of real estate to the heavy equipment dealer in return for the piece of heavy equipment. The fair market value of the real estate received by the heavy equipment dealer will be included in the dealer's gross income for purposes of the municipal business and occupation tax. An indicator as to the value of the real estate received by the dealer would be the price of the heavy equipment if it had been purchased for cash. This indicator does not conclusively establish the amount of gross receipts which inured to the dealer. If the article (real estate) received has a greater value than the article (heavy equipment) exchanged, then it is necessary that the dealer report the greater value for municipal business and occupation tax purposes.

1a.20.4.2. A person in the business of selling and servicing home appliances has income for the taxable year in the following manner: ninety-seven thousand dollars ($97,000) from the retail sale of appliances; thirteen thousand dollars ($13,000) received from servicing and repairing appliances; and ten thousand dollars ($10,000) received from the rental of the building. Even though the rental income is not directly related to the business of selling and servicing home appliances, it is an item of gross income as defined by the municipal business and occupation tax law. All three are items of gross income which the taxpayer must report on his municipal business and occupation tax return. Each item of gross income must be reported under its proper business classification.

1a.20.4.3. B agrees to construct an apartment building for R. The contract entered into by the parties stipulates that B's remuneration shall be his cost plus twenty percent (20%) thereof. B constructs said building and his cost aggregate one hundred fifty thousand dollars ($150,000) for which R makes reimbursement to B. B receives also thirty thousand dollars ($30,000) from R as his twenty percent (20%) of costs as stipulated by the contract. On his municipal business and occupation tax return, B will report, as gross income, one hundred eighty thousand dollars ($180,000). B will receive no deduction against gross income for monies received as reimbursement cost or expenses.

1a.20.4.4. M, who is in the business of drilling for and producing natural gas and oil, agrees with L, a landowner, to sink a well on L's land. The parties agree that if gas or oil is discovered, L will be entitled to a one-eighth (1/8) royalty therefrom, either in cash or in kind at L's option. The well is successful and L decides to accept, in payment (as his one-eighth (1/8) royalty) from M, two thousand (2,000) barrels of oil and thirty-five thousand dollars ($35,000) in cash. M, on his municipal business and occupation tax return, must report the entire gross income received from the production of oil and is not allowed a deduction therefrom for either the royalty paid in cash or in kind to L. M must also place a value on the two thousand (2,000) barrels of oil paid to L as a royalty and report said value for purposes of this tax.

1a.20.5. The term "Gross Income" and "Gross Proceeds of Sales" shall not include cash discounts allowed and taken on sales. When a contract of sale is made subject to cancellation at the option of one of the parties to revision in the even goods sold are defective or if the sale is made subject to discount upon cash payment, the gross proceeds actually derived from the contract and the selling price are determined by the transaction as finally completed. The selling price of a service or article of property does not include the amount of bona fide cash discount actually taken by the purchaser and the amount of such discount may be deducted from gross proceeds of sales providing such amount has been included in the gross amount column on the municipal business and occupation tax return.

1a.20.5.1. Cash discount deductions will be allowed under the production and manufacturing classifications only when the value of the products is determined from the gross proceeds of sales.

1a.20.5.2. The cost to the retailer of business stimulants and promotions is not considered cash discounts; nor is the value of such stimulants and promotions cash discounts. The expense incurred by the merchant in purchasing and distributing such items is a cost of doing business and is not deductible or excludible from gross income or gross proceeds of sales.

1a.20.5.3. X, a retail grocer, to stimulate business, purchases trading stamps and dispenses the same, based upon the amount of each individual order, to his customers. In preparing his municipal business and occupation tax return, X is not permitted to deduct the cost or value of the trading stamps from his gross proceeds of sales to arrive at his taxable income.

1a.20.6. The term "Gross Income" and "Gross Proceeds of Sales" shall not include the proceeds of sale of goods, ware or merchandise returned by the customers when the sale price is refunded either in cash or by credit.

1a.20.6.1. When sales are made either upon approval or upon a sale and return basis, and the purchaser returns the property purchased and the entire selling price is refunded or credited to the purchaser, the vendor may deduct an amount equal to the selling price from gross proceeds of sales in computing tax liability; if the gross income from said sale has been previously reported or entered in the gross amount column on the municipal business and occupation tax return.

1a.20.7. The term "Gross Income" and "Gross Proceeds of Sales" shall not include the amount allowed as trade-in value for any article accepted as part of payment for any article sold.

1a.20.7.1. This particular situation is prevalent in the automobile business. For example, X sells Y a new automobile for three thousand two hundred dollars ($3,200). In payment for the new automobile, X accepts Y's used automobile which has a trade-in value of seven hundred dollars ($700). X must report, on his municipal business and occupation tax return, the amount of two thousand five hundred dollars ($2,500) as gross income. When X sells the used automobile, the amount received from said sale will also be subject to municipal business and occupation tax.

1a.20.8. The terms "Gross Income" and "Gross Proceeds of Sales" shall not include excise tax imposed by the State of West Virginia.

1a.20.8.1. Excise taxes imposed by the State of West Virginia are not to be included in gross income to determine the amount of municipal business and occupation tax payable. For purposes of this deduction or exclusion from gross income, the following constitute West Virginia excise taxes: gasoline tax, diesel fuel tax, cigarette tax, beer barrel tax and soft drink tax.

1a.20.8.2. Exclusions or deductions from gross income for West Virginia excise taxes will be disallowed unless the taxpayer provides necessary information on his annual municipal business and occupation tax return to support the claimed deduction. On his tax return, the taxpayer claiming this exclusion or deduction must itemize the quantity of gasoline, diesel fuel, cigarettes and soft drinks sold. Adequate records must be maintained to properly establish the deductions claimed.

1a.20.9. The term "Gross Income" and "Gross Proceeds of Sales" shall not include certain excise taxes imposed by the United States of America.

1a.20.9.1. All excise taxes levied by the federal government are not deductible from gross income or from gross proceeds of sales. The test as to whether or not a particular federal excise tax is to be included in or excluded from gross income for municipal business and occupation tax purposes is whether the particular excise tax is a tax on the manufacturing process or a tax which attaches at the time of sale and not before. Therefore, to qualify as a deduction from gross income, the burden of said tax must rest upon the customer.

1a.20.9.2. Federal excise taxes which are taxes upon the process of manufacturing are not deductible or excludible from gross income or gross proceeds of sales for municipal business and occupation tax purposes. This includes, but is not limited to, federal excise taxes on alcohol and distilled spirits, tobaccos, cigars, cigarettes, matches, automobiles, tires, et cetera.

1a.20.9.3. Federal excise taxes which are taxes upon the consumer and which are held in trust by the vendor as agent for the federal government may be deducted from gross income or gross proceeds of sales in determining the amount of municipal business and occupation tax liability. This includes federal excise paid on gasoline, diesel fuel and lubricants.

1a.20.9.4. Persons claiming deductions for federal excise taxes must itemize on the annual municipal business and occupation tax form and provide necessary information to support said deduction. Deductions claimed for federal excise taxes will be disallowed in those cases where the taxpayer fails to provide an itemization.

1a.20.9.5. An example pertaining to state and federal excise taxes is presented below: Example -- John Doe owns and operates a service station. During the calendar year 1972, he sold, at retail, gasoline, oil, cigars, cigarettes, and soft drinks. His retail sales for the taxable year totaled one hundred fifty-seven thousand dollars ($157,000) and his service income from repairing and washing of automobiles totaled twenty-three thousand dollars ($23,000).

The taxpayer must report and pay tax under two (2) business classifications, retail and service. He is allowed a deduction from gross income, reported under the retail classification on the tax form, for State excise taxes on cigarettes, soft drinks and powders and gasoline. The taxpayer is also permitted a deduction for federal excise taxes on gasoline and oil. No deduction is permitted for the federal excise tax on cigars and cigarettes.

1a.20.10. The terms "Gross Income" or "Gross Proceeds of Sales" shall not include money or other property received or held by a professional person for the sole use and benefit of a client or another person or money received by the taxpayer on behalf of a bank or other financial institution for the repayment of a debt of another. The manner in which the attorney keeps his books and records must clearly and properly reflect this situation. Money or property received for the benefit of a client should be credited to a trustee or escrow account so that the State's tax examiners do not credit and include said funds in the trustee's gross income. For example, X, an attorney, institutes suit on behalf of a client and receives a favorable verdict. As a result therefore, the defendant, rather than making restitution directly to the plaintiff, pays the amount of the verdict to X. Therefore, X has received money for the benefit of a client and said amount shall not constitute gross income to X. X, the attorney, will include in gross income for municipal business and occupation tax purposes only his fee.

1a.21. The municipal business and occupation tax act imposes taxes upon persons engaged in business. The term "Business" shall include all activities engaged in or caused to be engaged in with the object of gain or economic benefit, either direct or indirect. The term "Business" shall include the production of natural resources or manufactured products which are used or consumed by the producer or manufacturer. Business shall also include the activities of a banking business or a financial organization.

1a.21.1. In determining whether a business is engaged in for "Direct or Indirect Economic Gain or Benefit", the lack of profit suffered in said activity is not relevant; nor is it material that the business was engaged in without profit as the primary motivation. In order to further clarify this situation, two (2) examples are presented below.

1a.21.1.1. The D E Company provides, for employee use, a cafeteria in the basement of its office building. The cost of operating the cafeteria, for a year, is one hundred ten thousand dollars ($110,000) and the gross income derived therefrom is ninety-three thousand dollars ($93,000). Even though the cafeteria operation reflected a loss for the taxable year, the gross amount of income derived therefrom, ninety-three thousand dollars ($93,000), is subject, under the retail classification, to municipal business and occupation tax; because the cafeteria business was engaged in for indirect economic benefit or gain. By providing a direct benefit to its employees, the company has incurred an indirect benefit which places the operation within the definition of "Business" for the purpose of this tax.

1a.21.1.2. The D E Company decides to provide safety equipment to its industrial employees. It decides to provide said equipment at below cost prices to its employees; therefore, said activity is engaged in without profit motivation. The gross amount received from the sale of such equipment is subject to municipal business and occupation tax; for the company receives an indirect economic benefit by providing its employees with such equipment. It can be expected that employees who take advantage of the safety equipment will be safer, have less loss of time accidents and will perform better than previously.

1a.21.2. "Business" shall not include a casual sale by a person who is not engaged in the business of selling the type of property involved in such casual sale. Sales are deemed to be casual or isolated when made by a person who is not engaged in the business of selling the type of property involved. Examples of casual sales are the following:

1a.21.2.1. Sale of any property which is of a type not regularly sold by the taxpayer; e.g., sale of an automobile or radio by a person engaged in the business of plumbing.

1a.21.2.2. Sale of household goods or personal effects by a person who is not engaged in the business of selling; e.g., sale of used furniture and a used automobile by a retired individual.

1a.21.2.3. Sale of property by a person who is engaged in a business but who is not engaged in the business of selling; e.g., sale of a parcel of realty by a doctor, who is not engaged in the business of selling real property.

Persons who hold themselves out to the public as making sales at retail or wholesale are deemed to be engaged in the business of selling, and sales made by them of the type of property which they hold themselves out as selling, are not casual sales even though sales are made infrequently.

1a.22. The term "Banking Business" or "Financial Organization" shall mean any bank, banking association, trust company, industrial loan company, small loan company or licensee, building and loan association, savings and loan association, finance company, investment company, investment broker or dealer, and any other similar business organization at least ninety per centum of the assets of which consists of intangible personal property and at least ninety per centum of the gross receipts of which consists of dividends, interest and other charges derived from the use of money or credit.

1a.23. The term "Service Business" or "Calling" shall include all activities engaged in by a person for other persons for a consideration, which involve the rendering of a service as distinguished from sale of tangible property.

1a.23.1. "Service Business" or "calling" shall include, but not be limited to:

1a.23.1.1. Persons engaged in manufacturing, compounding or preparing for sale, profit or commercial use, articles, substances or commodities which are owned by another person. A Company manufactures plastic toys on orders received from B Company. B Company retains title to and supplies the raw materials. The payment received by A Company for manufacturing said articles shall be reported under the service classification on the municipal business and occupation tax return. In this particular situation, B Company is deemed to be the manufacturer.

1a.23.2. Persons acting as independent contractors in producing natural resource products owned by other persons, as personal property, immediately after the same are served, extracted, reduced to possession and produced. For example, C owns a large tract of standing timber and enters into a contract with D for the severance of the same. The income received by D for serving C's timber must be reported under the service classification on the municipal business and occupation tax return. In this particular situation, C is deemed to be the producer of the natural resource product.

1a.23.3. The repetitive carrying of accounts, in the regular course and conduct of business, and extension of credit in connection with the sale of any tangible personal property or service, except as to persons engaged in banking and other financial businesses. For example, the E F Furniture Company sells furniture with a retail price of three hundred dollars ($300.00) to an individual and agrees to allow the purchaser to make time payments on the account. For carrying the account, the seller stipulates a charge of one percent (1%) per month on the unpaid balance of said account. At the end of the six (6) months, the purchaser has paid his account in full and the seller has received three hundred ten dollars ($310.00) therefrom. Therefore, the additional ten dollars ($10.00) over and above the sale price of the furniture must be reported by the seller under the service classification on the municipal business and occupation tax return; for the ten dollars ($10.00) was received for providing a service rather than for the sale of merchandise.

1a.23.4. The term "Service Business or Calling" shall not include the services rendered by an employee to his employer. The municipal business and occupation tax law imposes upon persons engaged in business but not upon persons acting solely in the capacity of employees or servants.

1a.23.4.1. The question of whether a person is engaged in business or is acting in the capacity of an employee is dependent upon the facts in each case. The following rules may be accepted as a guide but do not necessarily control individual cases.

1a.23.4.2. An employee or servant is an individual whose entire compensation is fixed at a certain rate per day, week or month, or at a certain percentage of the business obtained by such employee or servant, payable in all events; one who has no direct interest in the income or profits of the business other than a wage or commission; one who has no liability for the expense of maintaining an office or place of business, one who has no liability for loss or indebtedness incurred in the conduct of the business; one whose conduct with respect to services rendered, or business transacted, is supervised or controlled by another. A corporation, joint venture, or any group of individuals acting as a unit, is not an employee or servant.

1a.23.4.3. Persons who furnish equipment on a rental basis and also furnish operators therefore, are presumed to be engaging in business and not to be employees or servants. Likewise, persons who furnish materials and the labor necessary in the placing or fabricating thereof are also presumed to be engaging in business and not to be employees or servants. The burden of proof will be upon such persons to show otherwise.

1a.23.4.4. The fact that a person is construed to be an employee under the provisions of the State Unemployment Compensation Law or the Federal Social Security Act, does not conclusively establish such person as an employee within the provisions of the municipal business on occupation tax law.

1a.23.4.5. Persons regularly performing odd job carpentry, painting or paper hanging, plumbing, bricklaying, electrical work, etc., for the public generally are presumed to be engaging in business. The burden of proof is upon such persons to show otherwise. It is immaterial whether the workman is paid by the job, by the day or by the hour. It is likewise immaterial that the workman may supply labor only, any materials used being supplied by the property owner.

1a.23.4.6. A person engaging in business is generally one who holds himself out to the public as engaging in business either in respect to dealing in real or personal property or in respect to the rendition of services; one to whom gross income of the business inures; one upon whom liability for losses lies or who bears the expenses of conducting a business; one, generally acting in an independent capacity, whether or not subject to immediate control and supervision by a superior, or one who acts as an employer and his employees are subject to his control and supervision.

1a.24. "Selling at Wholesale" or "Wholesale Sales" shall mean and include:

1a.24.1. Sales of any tangible personal property for the purpose of resale in the form of tangible personal property.

1a.24.2. Sales of machinery, supplies or materials which are to be directly consumed or used by the purchaser in the conduct of any business or activity which is subject to the municipal business and occupation tax.

1a.24.3. Sales of any tangible personal property to the United States of America, its agencies and instrumentalities or to the State of West Virginia, its institutions or political subdivisions. Price and quantity are not relevant in determining wholesale sale for municipal business and occupation tax purposes. The fact that an item is discounted or is sold in large quantities does not make a transaction wholesale. It is the status and intention of the customer of the vendor which determines whether the gross proceeds received by the vendor from the sale are taxable under the retail classification or the wholesale classification. For example:

1a.24.4. H, who owns and operates a furniture store, is going out of business and is therefore liquidating his entire inventory. V, who is a retail furniture dealer, purchases part of H's inventory for twenty thousand dollars ($20,000). H, must report, on his municipal business and occupation tax return, twenty thousand dollars ($20,000) payment under the wholesale classification rather than the retail classification; for V, a furniture dealer whose activities are subject to the municipal business and occupation tax law, purchased the stock for the purpose of resale. In order that H's method of accounting will reflect the sale at wholesale, it is necessary that he receive and have on record a consumers sales tax exemption certificate. The certificate, prepared and signed by V, must certify that V is a merchant who purchased tangible personal property for the purpose of resale. Of course, in this particular situation, the exemption certificate is not primarily prepared and signed to assist H in determining taxable classification but to relieve H from the responsibility of paying West Virginia consumers sales tax on the purchase.

1a.24.5. V also purchased (for three hundred dollars ($300)) a color television set from H. V intends to make personal use of the set, therefore, the amount of this sale must be reported under the retail classification by H. Inasmuch as the sale of the television set was not a sale for the purpose of resale, V will not prepare a consumers sales tax exemption certificate.

1a.24.6. G, who owns and operates a grocery store, occasionally makes sales of groceries to a State hospital which is near his place of business. These sales are wholesale sales for municipal business and occupation tax purposes. All sales of tangible personal property made to the State, its institutions or political subdivisions are sales at wholesale. This would include sales to boards of education, municipalities, counties, penal institutions, et cetera.

1a.25. The term "Contracting" shall include the furnishing of work, or both materials and work, in the fulfillment of a contract for the construction, alteration, repair, decoration or improvement of a new or existing building or structure, or any part thereof. The term "Contracting" shall also include the alteration improvement or development of real property.

1a.25.1. A person performing any activity described in the preceding paragraph shall report his gross income therefrom under the contracting classification of the municipal business and occupation tax return and shall receive no deduction from gross income on account of any expenses incurred. All income derived from said activity shall be reported under the contracting classification, and the form of contract entered into by the parties shall not be determinative of taxable classification.

1a.25.2. The term "Prime Contractor" means a person engaged in the business of preforming for others, contracts for the construction, repairing, decorating or improving of new or existing buildings or other structures under, upon or above real property, either for the work or for a specific portion thereof.

1a.25.3. The word "Subcontractor" means a person engaged in the business of preforming a like or similar service for persons other than consumers, either for the entire work or for a specific portion thereof.

1a.25.4. The terms "Prime Contractor" and "Subcontractor" include persons preforming labor and services in respect to the moving of earth or clearing of land, razing or moving existing buildings or structures even though such services may not be done in connection with a contract involving the constructing, repairing, or altering of a new or existing building or structure.

1a.25.5. The term "Buildings or Structures" means and includes, but is not limited to, everything artificially built up or composed of parts joined together in some definite manner and attached to real property. It includes not only buildings in the general and ordinary sense, but also tanks, fences, conduits, culverts, railroad tracks, overhead and underground transmission systems, tunnels, monuments, retaining walls, bridges, trestles, parking lots and pavement for foot or vehicular traffic.

1a.25.6. The term "Contracting, Repairing, Decorating or Improving" of a new part of an existing building or structure or any part thereof, in addition to its ordinary meaning, includes the installing or attaching of any article of tangible personal property in or to real property, whether or not such personal property becomes a part of the realty by virtue of such installation.

1a.26. The term "Speculative Builder" means and includes one who constructs improvements upon real property owned by him for sale or rental. The gross income derived by the speculative builder from the sale of real property upon which the speculative builder has constructed improvements shall be reported under the retail classification on the municipal business and occupation tax form. The sales price is the measure of the tax.

W. Va. Code R. § 110-26-1a