W. Va. Code R. § 110-15-117
Current through Register Vol. XLI, No. 24, June 14, 2024
Section 110-15-117 - Specific Businesses with Contracting Issues117.1. Carpentry. - Persons engaged in the business of carpentry, (as the trade is known in the usual course of business) are generally considered to be rendering, furnishing or performing a service, the gross receipts from which are subject to consumers sales and service tax, when the work does not result in a capital improvement to a building, structure or real property.117.2. Chimney Cleaning. - The cleaning and servicing of chimneys of gas, oil or woodburning stoves, furnaces or fireplaces in residential dwellings is a service subject to consumers sales and service tax.117.3. Demolition. - The charges for the demolition of a building or structure (or any part of either) is contracting and is not subject to the consumers sales and service tax. In general, the demolition of buildings or structures constitutes an improvement to land, because it enhances the value of land in preparing it for its best use.117.4. Draperies and Drapery Hardware. - Retailers who contract to sell and install draperies, including drapery hardware, such as brackets, rods, tracks, etc., are retailers of the items which they furnish and install. Tax applies to the entire contract price including the charge for installation. Installers who furnish drapery hardware or other tangible personal property may accept resale certificates from department stores or other sellers to furnish and install the draperies and drapery hardware. Department stores or other retailers furnishing resale certificates are required to collect and remit the consumers sales and service tax to this State upon the gross receipts which they derive from selling and installing the draperies and drapery hardware.117.5. Electrical Repair and Installation. - Persons engaged in the business of repairing or installing electrical wiring, fixtures, switches in or on real property or repairing or installing any article of personal property powered by electric current are rendering, furnishing or performing a service, the gross receipts from which are subject to tax unless the repair results in a capital improvement. "Repair" is synonymous with mend, restore, maintain, replace, or service. A "repair" contemplates an existing structure or thing which has become imperfect and constitutes the restoration to the original existing structure that which has been lost or destroyed. A "repair" that is a capital improvement to a building or other structure or to real property is treated as a contracting service which is exempt from the consumers sales and service tax. A "repair" that is not a capital improvement is one that does not materially add to the value or substantially prolong the useful life of the property. "Installation" includes affixing electric wiring, fixtures or switches to real property, affixing any article of personal property powered by electric current to any other article of personal property, or making any article of personal property powered by electric current operative with respect to its intended functional purpose. Tax does not apply to electrical installation repair when the service is on or connected with a structural change (capital improvement) to a building or similar structure, whether the structural change be internal or external to the building or structure. For example, the electrical repair or installation on or connected with new construction on buildings or structures would not be subject to the consumers sales and service tax.117.6. Excavation Services. 117.6.1. The charges for excavation services by a contractor who provides his equipment and operator to perform a specific job in the manner to be directed or controlled by the contractor are contracting services exempt from the consumers sales and service tax.117.6.2. Charges for the basic rental of equipment are subject to the consumers sales and service tax. Where the rental includes the services of an operator the charges for the operator are also subject to consumers sales and service tax.117.7. Floor Covering Dealer Transactions. - Whenever an installation service is incidentally rendered in conjunction with the sale of floor coverings, the agreement for installation is treated as a taxable service regardless of whether the installation is done by the retail dealer or by the retail dealer's agent. The sale of the floor covering is also subject to consumers sales and service tax.117.8. Garage Door Openers. 117.8.1. The charges for the sale and installation of electrically controlled garage door openers are subject to consumers sales and service tax. Such installations are not deemed to result in a capital improvement to real property.117.8.2. However, when there is construction of a new building or portion thereof, or the installation of new garage doors in an existing building and there is the installation of an electric garage door opener, the transaction constitutes a capital improvement to real property. In such instance, the charges to the customer are not subject to consumers sales and service tax. However, the contractor must pay sales tax on the new garage doors and the electric garage door opener.117.9. Heating Plant. - The installation of a new heating plant in a building or other structure results in a capital improvement. No consumers sales and service tax is charged to the contractor's customer. 117.10. House and Building Moving. - Persons engaged in the business of moving houses or buildings from one location to another, whether for repair or otherwise, are rendering, furnishing or performing a service, the gross receipts from which are generally subject to consumers sales and service tax.117.11. Janitorial and Building Maintenance. 117.11.1. Gross receipts from janitorial services and building maintenance and cleaning are subject to consumers sales and service tax. "Janitorial services" means the type of cleaning services performed by a janitor in the regular course of duty, whether such services are performed individually, under separate contract, or are included within a general contract to perform a combination of such services. This term includes, but is not limited to, contracts to perform interior window washing, floor cleaning, vacuuming and waxing, the cleaning of interior walls and movement of furniture and other items of personal property within a building. Persons performing either one or a number of janitorial services are engaged in a business the gross receipts from which are subject to consumers sales and service tax. Therefore, for example, a person engaged only in cleaning the interior windows of a building is engaged in taxable janitorial services.117.11.2. Cleaning of the exterior walls or windows of any building or any other act performed upon the exterior of a building with the intent to keep the building in good upkeep or condition, other than a repair, is the service of "building maintenance." Gross receipts therefrom are subject to consumers sales and service tax.117.11.3. Janitorial services or building maintenance performed on or in connection with new construction, reconstruction, alteration, expansion or remodeling of the structure is exempt from tax.117.12. Kitchen Remodeling. - Generally, the remodeling of a kitchen results in a capital improvement to real property. The contractor is required to pay the consumers sales and use taxes on the materials, supplies and equipment he purchases for use on the job. 117.12.1. In instances where the remodeling is done by a retailer and is limited in its scope to mere replacement of kitchen cabinets, appliances and wall-to-wall carpet, the transaction is treated as a sale of tangible personal property and the providing of a taxable service. The retailer is required to charge consumers sales and service tax on the gross receipts from the transaction.117.12.2. Special rules also apply to the sale of kitchen cabinets manufactured by the installer. See Section 114 of these regulations for more detail relating to such transactions.117.13. Lawn Care. - Persons engaged in the business of "lawn care" are performing a service the gross receipts from which are subject to consumer sales and use taxes. "Lawn care" includes but is not limited to the following services: Mowing, trimming, watering, fertilizing, reseeding, resodding and killing of insects, moles, or other vermin, weeds or fungi which may be threatening a lawn. Persons who mow lawns are providing taxable services regardless of their ages.117.14. Landscaping. 117.14.1. The gross receipts from the service of "landscaping" are subject to consumers sales and service tax unless the landscaping results in a capital improvement to real property. In such instance, the landscaping is contracting. The services performed by one who arranges and modifies the natural condition of a given parcel or tract of land so as to render the land suitable for public or private use or enjoyment is engaged in the business of "landscaping."117.14.2. Any services for which a license as a landscape architect is required under Chapter 30 of the West Virginia Code are not subject to the consumer sales and use taxes. When the taxable landscaping service provided consists of both professional and non-professional services, the professional services shall not be taxed if the charge therefor is separately stated on the invoice. The gross receipts from landscaping performed by a contractor in connection with new construction, reconstruction, alteration, expansion or remodeling of a building or structure or a contract for the alteration, improvement or development of real property are not subject to tax. However, the contractor must pay consumers sales and use taxes on all tangible personal property or taxable services purchased for use or consumption in such activity.117.15. Monuments and Grave Stones. - Sales of monuments and grave stones by a retail dealer are subject to consumers sales and service tax. Monuments and grave stones that are sold and installed for a customer by a retail dealer or his agent are subject to consumers sales and service tax. The retail dealer is not treated as a contractor unless the installation is not incidental to the sale of the monument or grave stone.117.16. Painting, Papering and Interior Decorating.117.16.1. Persons engaged in the business of painting, papering and interior decorating are generally considered to be rendering, furnishing or performing a service, the gross receipts from which are subject to consumers sales and service tax. "Painting" means covering of both interior and exterior surfaces of tangible personal or real property with a coloring matter and mixture of a pigment or sealant, with some suitable liquid to form a solid adherent when spread on thin coats for decoration, protection or preservation purposes and all necessary preparations necessary to, including surface preparation. The following are not within the definition of painting: automobile undercoating; the coating of railroad cars, storage tanks or the plating of tangible personal property with metals such as but not limited to chrome, bronze, tin galvanized metal, or platinum. "Papering" means applying wall paper or wall fabric to the interior of houses or buildings and all necessary preparations thereto including surface preparation. "Interior decorating" shall mean the service of designing or decorating or the procurement of furniture fixtures or home or building decorations. When any person provides interior decorating service without charge as an incident to the sale of real or personal property, no consumers sales and service tax in addition to that paid on purchase price or any part thereof of the personal property, shall be charged.117.16.2. Paper Hanging and Painting New or Existing Structures. 117.16.2.1. Papering or painting the walls of a new structure or a new addition to a structure is considered to be a capital improvement. In such cases the contractor will pay consumers sales and service tax to his supplier when he purchases his materials and supplies. He will not charge the property owner any consumers sales and service tax as such. Presumably, the consumers sales tax paid by the contractor will be included in the price the contractor charges his customer.117.16.2.2. Papering or painting the walls of an existing structure is considered to be maintenance or repair work which does not constitute a capital improvement. In this case, the charges to the customer for the materials and for the labor are subject to consumers sales and service tax.117.17. Pest Control Services.117.17.1. Persons engaged in the business of termite and pest control are providing services that are subject to consumers sales and use taxes. A nonexclusive list of taxable services includes: 117.17.1.1. initial inspection for termites or other pests117.17.1.3. certification of reports for mortgage lenders117.17.1.4. spraying of insecticides117.17.1.6. replacement or rehabilitation of infested wood (provided, the degree of work does not result in a capital improvement to a building or other structure or to real property)117.18. Prefabricated Cabinets. - A cabinet will be considered to be "prefabricated" as a "fixture" when seventy-five percent (75%) of the total direct cost of labor and material in fabricating and installing the cabinet is incurred prior to affixation to the realty. In determining this seventy-five percent (75%) the total direct cost of all labor and materials in fabricating the cabinet to the point of installation will be compared to the total cost of all labor and materials in completely fabricating and installing the cabinet. If more than one cabinet is fabricated and installed under the contract, each cabinet will be considered separately in determining whether the cabinet is prefabricated.117.19. Removal Service, Solid Waste. 117.19.1. Charges for the removal of garbage, rubbish and trash are exempt from consumers sales and service tax when the service is regulated by the West Virginia Public Service Commission.117.19.2. Charges for the removal of debris resulting from land clearing, demolition or capital improvement construction are exempt from consumers sales and service tax when the removal is performed by the contractor or the contractor's subcontractor.117.20. Roofing. 117.20.1. When a contractor or other person engages to repair a roof, he is providing a taxable service and must collect consumers sales and service tax on the charges to his customer.117.20.2. Installation of a new roof would constitute a capital improvement. Thus there would be no consumers sales and service tax added to the charges to the customer. However, the contractor must pay consumers sales and service tax on all materials purchased and used or consumed in installing the new roof.117.21. Signs. 117.21.1. When a sign is sold and the installation thereof does not result in a capital improvement to a building or other structure or to real property, consumers sales and service tax must be charged on the charges for both the sign and its installation.117.21.2. If a concrete base is installed in the ground to be used as a foundation for a pole sign, the base is considered to be a capital improvement to real property and the contractor must pay consumers sales and service tax on the sign and on the materials and supplies used or consumed in its installation.117.22. Swimming Pools. - The sale and installation of an above-ground swimming pool does not ordinarily result in a capital improvement to real property. Thus the charges for the pool and its installation are subject to the consumers sales and service tax.117.23. Tin and Sheet Metal Repair. - Persons engaged in the business of repairing tin or sheet metal whether the same has or has not been formed into a finished product are rendering, furnishing or performing a service, the gross receipts from which are subject to tax.117.24. Tree Trimming and Removal. - Persons engaged in the business of tree trimming and removal are performing a service, the gross receipts of which are subject to consumers sales and service tax. Persons engaged in "stump removal" are engaged in a taxable service, as are persons engaged in the removal of any other portion of a tree, such as the branches or trunk. The trimming or removal of any scrub which has a woody main stem or trunk with branches shall constitute tree trimming or removal and the gross receipts from the trimming or removal of such a scrub shall be subject to tax. Persons who engage in the business of tree trimming and removal who cut the wood from the trees which they trim or remove into sizes suitable for sale as firewood and to sell this wood for firewood are engaged in the sale of tangible personal property, and the gross receipts from the sale of this wood are subject to tax. The services of persons who trim or remove trees and sell the wood which they have cut are providing services for resale. Therefore, such persons must collect consumers sales and service tax on the service of tree trimming or removal and on the sale of firewood.117.25. Venetian Blinds. - The sales of venetian blinds and the incidental installation thereof by the retail dealer or his agent are transactions subject to consumers sales and service tax.117.26. Wall-to-Wall Carpeting. - The sale and incidental installation of wall-to-wall carpeting by a retail dealer or his agent is subject to consumers sales and service tax beginning July 1, 1989.117.27. Water Conditioning and Softening. - Persons engaged in the business of water conditioning and softening are performing a service, the gross receipts of which are subject to tax. "Water softening" means the removal of minerals from water to render it more suitable for drinking and washing. "Water conditioning" means any action other than water softening taken with respect to water which renders the water fit for its intended use for more healthful or enjoyable for human consumption. The phrase "water conditioning" includes but is not limited to water filtration, water purification, the ionization and reverse osmosis. The service of water purification is taxable whether performed for residential, commercial, industrial, or agricultural uses.117.28. Well Drilling. - Persons engaged in the business of water well drilling are rendering a contracting service, the gross receipts from which are not subject to tax.W. Va. Code R. § 110-15-117