W. Va. Code R. § 110-15-126

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 110-15-126 - Food

126.1. Food sold by public or private schools, school sponsored student organizations, or school sponsored parent-teacher associations to students enrolled in such school or to employees of such school during normal school hours is exempt from the consumers sales and service tax and the use tax. However, sales of food to the general public during normal school hours are taxable.

126.1.1. Organizations which may make such exempt sales are as follows:

126.1.1.1. A public, private, parochial or denominational school which is subject to regulation by the West Virginia State Board of Education;

126.1.1.2. An organization which is sponsored by a public, private, parochial or denominational school which is subject to regulation by the West Virginia State Board of Education; or

126.1.1.3. A parent-teacher association which is sponsored by a public, private, parochial or denominational school which is subject to regulation by the West Virginia State Board of Education.

126.1.2. The following sales of food or food products during other than normal school hours also are exempt.

126.1.2.1. Sales by a school sponsored student or parent-teacher association, or similar association, at athletic, cultural or social events when the proceeds of such sales, after payment of reasonable expenses, are donated to the school or used to purchase tangible personal property or services which are donated to the school.

126.1.2.2. Sales by a school sponsored student or parent-teacher association, or similar association, during a fund raising activity which does not qualify as an athletic, cultural or social event when the proceeds of such sales, after payment of reasonable expenses, are donated to the school or used to purchase tangible personal property or services which are donated to the school.

126.1.3. The following sales of food or food products are subject to consumers sales and service tax.

126.1.3.1. Sales of food by vending machines regardless of where the machine is located, who owns the machine or the time of day when the sale occurs.

126.1.3.2. Sales of food to the general public during normal school hours.

126.1.4. Only purchases of food sold during normal school hours as authorized in the foregoing Section 126.1 of these regulations are exempt from the consumers sales and service tax and use tax. All other purchases are taxable unless an exemption other than a purchase for resale is available for use. The exemption may be claimed by issuing a properly completed exemption certificate to the vendor.

126.2. Food sold by a public or private college or university or by a student organization officially recognized by such college or university to students enrolled at such college or university is exempt from tax when such sales are made on a contract basis so that a fixed price is paid for consumption of food products for a specific period of time without respect to the amount of food product actually consumed by the particular individual contracting for the sale and no money is paid at the time the food product is served or consumed.

126.2.1. Applications.

126.2.1.1. College Operated Dormitory. - A public or private college subject to the control of the Board of Trustees of the University System of West Virginia, the Board of Directors of the State College System or a similar board for a private college in this State operates a dormitory providing room and board to its students on a semester-by-semester basis. An itemization is made for room and for board. The price for board is determined regardless of the amount of food consumed by the student or the number of missed meals. The charge made for board is exempt from the consumers sales and service tax.

126.2.1.2. Lump Sum Charge for Room and Board. - If a college-operated dormitory makes a lump sum charge for room and board, the entire amount is exempt from consumers sales and service tax. Room charges are exempt under Section 9.2.2.0 of these regulations.

126.2.1.3. Food Furnished by Caterer. - If the food service is furnished by a caterer and the contract is between the student and the caterer, the food is not being sold by the college or the university and the sale of food is subject to consumers sales and service tax but the charge for the room remains exempt. If the contract is between the student and the college or university, the charge is exempt.

126.2.1.4. Dormitory Operated by Private Person. - If room and board are furnished by a dormitory not operated by the college or university, the charge made for board is subject to consumers sales and service tax. The charge made for the room is exempt from the consumers sales and service tax if the person renting the room continues to do so for a period in excess of thirty (30) consecutive days.

126.2.1.5. Lump Sum Charge for Room and Board. - If a dormitory operated by a private person makes a lump sum charge for room and board, the entire amount is subject to the consumers sales and service tax.

126.2.1.6. Fraternities and Sororities. - Sales of food and meals on a "contract basis," as defined in Section 2 of these regulations, by student fraternities and sororities that are officially recognized by the college or university at which they are located, to a student enrolled at the college or university are exempt. Food or meals sold to the general public or on any basis other than a "contract basis," are subject to consumers sales and service tax.

126.2.2. To the extent that an organization qualifies for exemption for its sales of food under this Section 126.2, its purchases of such food shall also be exempt; however, purchases of food by a fraternity or sorority shall not be exempt as a purchase for resale. The exemption may be claimed by issuing a properly completed exemption certificate to the vendor.

126.3. Food sold by a charitable or private nonprofit organization, a nonprofit organization or a governmental agency under a program to provide food to low-income persons at or below cost is exempt from tax. All of the following conditions must be satisfied in order to establish the exemption:

126.3.1. The purchaser must be classified as having low income.

126.3.2. The sale must be made by a charitable or private nonprofit organization nonprofit organization or governmental agency.

126.3.3. The sale must be under a program established to provide food to low-income persons.

126.3.4. The sale must be made at or below cost.

126.3.5. Purchases of food by a charitable or private nonprofit organization, nonprofit organization or a governmental agency under a program to provide food to low-income persons at or below cost are exempt when such food is used or consumed in the program. The exemption may be claimed by issuing a properly completed exemption certificate to the vendor.

126.4. Food sold in an occasional sale by a charitable or nonprofit organization, including volunteer fire departments and rescue squads is exempt from tax, if the purpose of the sale is to obtain revenue for the functions and activities of the organization and the revenue so obtained is actually expended for that purpose.

126.4.1. Charitable Organization.

126.4.1.1. "Occasional sales of food," as defined in Section 2 of these regulations, by a corporation or organization that is exempt from income tax under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and which satisfy the definition of "charitable organization" as provided in Section 2 of these regulations, are exempt from consumers sales and service tax.

126.4.2. Civic Organization Operated for Social Welfare.

126.4.2.1. "Occasional sales of food," as defined in Section 2 of these regulations, by a corporation or organization that is exempt from income tax under Section '501(c)(4) of the Internal Revenue Code of 1986, as amended, are exempt from consumers sales and service tax.

126.4.2.2. Examples of organizations that may qualify.

Educational radio stations

Junior Chamber of Commerce

Civic Improvement Association

Volunteer fire department

Volunteer rescue squad

126.4.3. Nonprofit Organization.

126.4.3.1. "Occasional sales of food," as defined in Section 2 of these regulations, by a nonprofit corporation or organization not included in Sections 126.4.1.1 and 126.4.1.2 of these regulations may be exempt from consumers sales and service tax.

126.4.3.2. Examples of organizations that may qualify.

126.4.3.2.a. Labor, agricultural or horticultural organizations which are exempt from income tax under Section 501(c)(5) of the Internal Revenue Code of 1986, as amended.

126.4.3.2.b. Business leagues, chambers of commerce and other organizations which are exempt from income tax under Section 501(c)(6) of the Internal Revenue Code of 1986, as amended.

126.4.3.2.c. Social clubs and clubs organized for pleasure, recreation and other nonprofit purposes which are exempt from income tax under Section 501(c)(7) of the Internal Revenue Code of 1986, as amended.

126.4.3.2.d. Fraternal or benevolent societies, orders or associations which are exempt from income tax under Section 501(c)(8) of the Internal Revenue Code of 1986, as amended.

126.4.4. Purchases of food for sale under the foregoing Section 126.4 are not exempt from the consumers sales and service tax or the use tax as a purchase for resale.

126.5. Food sold by any religious organization at a social or other gathering conducted by it or under its auspices, if the purpose in selling the food is to obtain revenue for the functions and activities of the organization and the revenue obtained from selling the food is actually used in carrying on such functions and activities: Provided, That purchases made by such organizations shall not be exempt as a purchase for resale.

126.6. Sales of food by little leagues, midget football leagues, youth football or soccer leagues and similar types of organizations including scouting groups and church youth groups are exempt if the purpose in selling the food is to obtain revenue for the functions and activities of the organization and the revenue obtained from selling the food is actually used in supporting or carrying on the functions and activities of the groups.

W. Va. Code R. § 110-15-126