W. Va. Code R. § 110-15-8

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

Section 110-15-8 - Furnishing of Services Included; Exceptions

The consumers sales and service tax and the use tax shall apply not only to selling tangible personal property, but also to the furnishing of all services, except professional services, personal services, those services furnished by corporations subject to the control of the Public Service Commission, contracting services, and services rendered by an employee to his employer.

8.1. Sales of the following services are excepted from the imposition of the consumers sales and service tax and the use tax.

8.1.1. Professional Services.

8.1.1.1. Professional services, as defined in Section 2 of these regulations, are rendered by physicians, dentists, lawyers, certified public accountants, public accountants, optometrists, architects, professional engineers, registered professional nurses, veterinarians, licensed physical therapists, ophthalmologists, chiropractors, podiatrists, embalmers, osteopathic physicians and surgeons, registered sanitarians, pharmacists, psychiatrists, psychoanalysts, psychologists, landscape architects, registered professional court reporters, licensed social workers, enrolled agents, professional foresters, licensed real estate appraisers and certified real estate appraisers licensed in accordance with W. Va. Code '37-14-1 et seq., nursing home administrators, licensed professional counselors and licensed real estate brokers. Persons who provide services classified as nonprofessional for consumers sales and service tax purposes include interior decorators, private detectives/investigators, security guards, bookkeepers, forestors, truck driving schools, hearing aid dealers/fitters, contractors, electricians, musicians, and hospital administrators; the foregoing listing is not all-inclusive but intended as containing examples of trades and occupations. The determination as to whether other activities are "professional" in nature will be determined by the State Tax Division on a case-by-case basis unless the Legislature amends W. Va. Code '11-15-1 et seq. to provide that a specified activity is "professional." When making a determination as to whether other activities fall within the "professional" classification, the Tax Department will consider such things as the level of education required for the activity, the nature and extent of nationally recognized standards for performance, licensing requirements on the State and national level, and the extent of continuing education requirements.

8.1.1.2. Services for which a professional license is required and which are provided by corporations, regardless of whether such corporations are professional or business, are not subject to the consumers sales and service tax. Likewise, non-professional services provided by a professional corporation are subject to the tax.

8.1.1.3. Professional persons who make sales of tangible personal property or who engage in activities which are not professional services shall collect consumers sales and service tax on such sales or services. For example, kennel services provided by a veterinarian are subject to tax.

8.1.1.4. Professional services shall not be related to the quality of performance or expertise of the person performing the service. Professional, when used in these regulations, is not synonymous with excellence. It is the type of service which must be professional, not the quality or manner in which the service is performed. To illustrate: A doctor's services to his patients are professional services whether or not his patients are satisfied with his performance; or, an individual may excel at repairing television sets, but his type of service (repair of television sets) is not considered professional under these regulations even though the manner in which he performs is considered "professional" by his customers or by other television repairmen.

8.1.2. Personal Services.

8.1.2.1. Personal services shall include those services done to or performed on the person of an individual, and such services must be directly from one person to another. Personal services include barbering, massaging, nursing, manicuring, hair setting, hair washing and dyeing, services of dental hygienists, shoe-shining while the shoes are worn by the customer, and similar services. The determination as to whether other services are personal in nature will be determined on a case-by-case basis. For further information See Section 35 of these regulations.

8.1.2.2. As provided in Section 2 of these regulations, personal services are services rendered to the person of an individual without, at the same time, selling tangible personal property: Provided, That the sale of tangible personal property used and consumed in the rendering of the personal service shall be subject to tax only if stated as a separate charge. In order for the service to be personal in nature, it is necessary for there to be physical contact of a continuing nature by the provider of the service to the recipient of such service. Additionally, it is necessary for such contact to directly touch the person or the clothing worn by such person.

8.1.2.3. Many personal physical fitness programs do not qualify as personal services. The issue as to whether a program qualifies as a personal service will be determined by the nature of physical contact, the degree and level of individual supervision, and the degree to which the program is tailored to the requirements of the individual participant. Mere monitoring of performance, especially if by computer or other such impersonal means, is insufficient to qualify; however, individual instruction and close personal performance monitoring in conjunction with an individualized program specifically designed to meet the needs of the particular individual would fall within the category of activity which would be considered as personal service. This activity should not be confused with courses of instruction in the martial arts, boxing, aerobic dancing, etc., which, while being physical in nature are not personal in nature, and are therefore not personal services.

8.1.2.4. Those services performed by a professional which are neither personal services nor professional services are subject to the consumers sales and service tax.

8.1.3. Services Rendered by Corporations Subject to West Virginia Public Service Commission Control.

8.1.3.1. Regulated services rendered by corporations which are subject to the control of the West Virginia Public Service Commission are not subject to the consumers sales and service tax.

8.1.3.2. To illustrate: Services rendered by taxi companies and bus companies (carrying of passengers) holding a certificate of convenience and necessity issued by the West Virginia Public Service Commission are not subject to the consumers sales and service tax.

8.1.3.3. Any person who performs services which are subject to the control of the West Virginia Public Service Commission may perform such services without charging and collecting consumers sales and service tax.

8.2. On those services which are excepted from the imposition of the sales and services tax, enumerated in Sections 8.1.1 through 8.1.3 above, the Tax Department does not deem it necessary for the vendor to require an exemption certificate from the purchaser of such services. However, the burden of proving that a service is exempt rests upon the vendor. See Section 9.2 of these regulations.

8.3. The purveyors of those services which are excepted from the imposition of the consumers sales and service tax, enumerated in Sections 8.1.1 through 8.1.3 above, are not required to collect the consumers sales and service tax on the sale of services to consumers. As a result, the purveyors of such services are required to pay the consumers sales and service tax on all purchases of tangible personal property and services which are used or consumed in their business: Provided, That purchases which qualify under Sections 9.4.1 or 9.4.4 of these regulations shall be exempt from the sales and service tax.

W. Va. Code R. § 110-15-8