Senate Bill No. 664
(By Senators Craigo and Snyder)
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[Introduced February 23, 1998; referred to the
Committee on Finance.]
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A BILL to amend and reenact sections one and three, article
fifteen-a, chapter eleven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
to defining "modular dwelling" for the purposes of
imposition of the use tax; and exempting persons engaged in
various aspects of manufacture, sale and installation of
modular homes from the use tax.
Be it enacted by the Legislature of West Virginia:
That sections one and three, article fifteen-a, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 15A. USE TAX.
§11-15A-1. Definitions.
The following words, terms and phrases, when used in this
article, have the meanings ascribed to them in this section,
except where the context clearly indicates that a different
meaning is required:
(1) "Business" means any activity engaged in by any person,
or caused to be engaged in by any person, with the object of
direct or indirect economic gain, benefit or advantage, and
includes any purposeful revenue generating activity in this
state.
(2) "Consumer" means any person purchasing tangible personal
property from a retailer as defined in paragraph (7) subdivision
(8) of this section.
(3) "Lease" includes rental, hire and license.
(4) "Modular dwelling" means a single or multifamily house,
apartment unit or commercial dwelling comprised of two or more
sections without a permanent chassis, built to a state or model
code other than the National Manufactured Housing Construction
and Safety Standards Act of 1974 (42 U.S.C. §5401 et. seq.) which
is primarily constructed at a location other than the permanent
site at which it is to be finally assembled and which is shipped
to the site with most permanent components in place.
(4) (5) "Person" includes any individual, firm, partnership,
joint venture, joint stock company, association, public or private corporation, cooperative, estate, trust, business trust,
receiver, executor, administrator, any other fiduciary, any
representative appointed by order of any court or otherwise
acting on behalf of others, or any other group or combination
acting as a unit, and the plural as well as the singular number.
(5) (6) "Purchase" means any transfer, exchange or barter,
conditional or otherwise, in any manner or by any means
whatsoever, for a consideration.
(6) (7) "Purchase price" means the total amount for which
tangible personal property is sold, valued in money, whether paid
in money or otherwise: Provided, That cash discounts allowed and
taken on sales shall not be included.
(7) (8) "Retailer" means and includes every person engaging
in the business of selling, leasing or renting tangible personal
property for use within the meaning of this article, or in the
business of selling, at auction, tangible personal property owned
by the person or others for use in this state: Provided, That
when in the opinion of the tax commissioner it is necessary for
the efficient administration of this article to regard any
salesmen, representatives, truckers, peddlers or canvassers as
the agents of the dealers, distributors, supervisors, employees
or persons under whom they operate or from whom they obtain the
tangible personal property sold by them, irrespective of whether they are making sales on their own behalf or on behalf of such
the dealers, distributors, supervisors, employers or persons, the
tax commissioner may so regard them and may regard the dealers,
distributors, supervisors, employers or persons as retailers for
purposes of this article.
(8) (9) "Retailer engaging in business in this state" or any
like term, unless otherwise limited by federal statute, shall
mean and include means and includes, but is not be limited to,
any retailer having or maintaining, occupying or using, within
this state, directly or by a subsidiary, an office, distribution
house, sales house, warehouse, or other place of business, or any
agent (by whatever name called) operating within this state under
the authority of the retailer or its subsidiary, irrespective of
whether such the place of business or agent is located here
permanently or temporarily, or whether such the retailer or
subsidiary is admitted to do business within this state pursuant
to section forty-nine, article one, chapter thirty-one of this
code.
(9) (10) "Sale" means any transaction resulting in the
purchase of tangible personal property from a retailer.
(10) (11) "Seller" means a retailer, and includes every
person selling or leasing tangible personal property in a
transaction which is subject to the tax imposed by this article.
(11) (12) "Tax commissioner" or "commissioner" means the
state tax commissioner, or his or her delegate.
(12) (13) "Tangible personal property" means tangible goods,
wares and merchandise when sold by a retailer for use in this
state.
(13) (14) "Taxpayer" includes any person within the meaning
of this section, who is subject to a tax imposed by this article,
whether acting for himself or herself or as a fiduciary.
(14) (15) "Use" means and includes the exercise by any
person of any right or power over tangible personal property
incident to the ownership, possession or enjoyment of such the
property, or by any transaction in which possession of or the
exercise of any right or power over tangible personal property is
acquired for a consideration, including any lease, rental or
conditional sale of tangible personal property. As used in this
definition, "enjoyment" includes a purchaser's right to direct
the disposition of the property, whether or not the purchaser has
possession of the property. The term "use" does not include the
keeping, retaining or exercising any right or power over tangible
personal property for the purpose of subsequently transporting it
outside the state for use thereafter solely outside this state.
§11-15A-3. Exemptions.
(a) The use in this state of the following tangible personal property and services is hereby specifically exempted from the
tax imposed by this article to the extent specified:
(1) All articles of tangible personal property brought into
the state of West Virginia by a nonresident individual thereof
for his or her use or enjoyment while temporarily within this
state or while passing through this state, except gasoline and
special fuel: Provided, That fuel contained in the supply tank
of a motor vehicle that is not a motor carrier shall is not be
taxable.
(2) Tangible personal property or services, the gross
receipts from the sale of which are exempt from the sales tax by
the terms of article fifteen, chapter eleven of the this code, of
West Virginia, one thousand nine hundred thirty-one, as amended
and the property or services are being used for the purpose for
which it was they were exempted.
(3) Tangible personal property or services, the gross
receipts or the gross proceeds from the sale of which are
required to be included in the measure of the tax imposed by
article fifteen, chapter eleven of the this code, of West
Virginia, one thousand nine hundred thirty-one, as amended and
upon which the tax imposed by said article fifteen has been paid.
(4) Tangible personal property or services, the sale of
which in this state is not subject to the West Virginia consumers sales tax.
(5) Mobile homes utilized by the their owners thereof as
their principal year-round residence and dwelling: Provided,
That use of these mobile homes shall be is subject to tax at the
three-percent rate.
(6) Persons engaged in the manufacture, sale and
installation of modular dwellings and the preparation of the
permanent site for the placement of modular dwellings are
rendering a contracting service, for which the gross receipts are
not subject to tax. Only materials used in the manufacturing and
installation of modular dwellings and in preparation of the site
for permanent installation are taxable. Where building supplies
and materials are purchased under a tax exempt manufacturers'
exclusion, the manufacturer shall remit a use tax when the house
is sold on the actual value of the materials used in the
manufacture of the dwelling sited in the state. Where sales tax
was paid at the time of purchase of building supplies and
materials, the manufacturer or contractor shall show that the
sales tax has been paid.
(b) The provisions of this section, as amended, shall apply
on and after the first day of July, one thousand nine hundred
eighty-seven.
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(NOTE: This bill defines "modular dwelling" for the
purposes of imposition of the use tax. Its primary purpose is in
exempting persons engaged in various aspects of the manufacture,
sale and installation of modular homes from the use tax.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)
FINANCE COMMITTEE AMENDMENTS
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That article fifteen, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
seven-a; and that article fifteen-a of said chapter be amended by
adding thereto a new section, designated section two-b, all to
read as follows:
ARTICLE 15. CONSUMERS SALES TAX.
§11-15-7a. Tax on the manufacture, sale and installation of
modular dwellings.
(a) Notwithstanding the provisions of section seven of this
article, persons engaged in the manufacture and sale or the
manufacture, sale and installation of a modular dwelling shall
pay the tax imposed by this article only on the value of the
building supplies and materials used in the manufacture and
installation of the modular dwelling and the preparation of the
site for permanent installation, and not on the labor involved in
such activities. For purposes of this section, the value of the
building supplies and materials shall be the actual cost of the
building supplies and materials. If the manufacturer asserts an
exemption at the time of purchase of the building supplies and
materials, the manufacturer shall remit the tax due on the value
of the building supplies and materials used in the manufacture of
the modular dwelling at the time of sale of the modular dwelling.
If the manufacturer pays the tax at the time of purchase of the
building supplies and materials, the manufacturer is responsible
for maintaining records evidencing payment of the tax. Failure
to maintain such records will result in the tax being assessed to
the manufacturer.
(b) Persons engaged in the sale and installation of a modular dwelling shall pay the tax imposed by this article on
only the value of the materials used in the manufacture and
installation of the modular dwelling and the preparation of the
site for permanent installation, and not on the labor involved in
such activities. For purposes of this section, the value of the
materials used in the manufacture of the modular dwelling shall
be the actual cost of the materials and building supplies to the
manufacturer as delineated on the invoice to the purchaser. If
the actual cost of the materials is not available, then the cost
of the materials used in the manufacture of the modular dwelling
shall be sixty percent of the total cost of the modular dwelling.
A credit will be given to the purchaser for any sales or use tax
that has been lawfully imposed by another state and paid by the
manufacturer on the purchase of building supplies and materials
used in the manufacture of the modular dwelling. If the
manufacturer pays the tax at the time of purchase of the building
supplies and materials, the manufacturer is responsible for
maintaining records evidencing payment of the tax and delineating
this amount on the invoice. Failure to maintain such records
will result in the credit being denied.
(c) Definition of modular dwelling. -- For purposes of this
article, a modular dwelling shall include, but not be limited to,
single and multifamily houses, apartment units and commercial
dwellings comprised of two or more sections without a permanent
chassis, built to a state or model code other than the National
Manufactured Housing Construction and Safety Standards Act of
1974, which are primarily constructed at a location other than
the permanent site at which they are to be finally assembled and
which are shipped to the site with most permanent components in
place.
ARTICLE 15A. USE TAX.
§11-15A-2b. Tax on the manufacture, sale and installation of
modular dwellings.
(a) Notwithstanding the provisions of section two-a of this
article, persons engaged in the manufacture and sale or the
manufacture, sale and installation of a modular dwelling shall
pay the tax imposed by this article only on the value of the
building supplies and materials used in the manufacture and
installation of the modular dwelling and the preparation of the
site for permanent installation, and not on the labor involved in
such activities. For purposes of this section, the value of the
building supplies and materials shall be the actual cost of the
building supplies and materials. If the manufacturer asserts an
exemption at the time of purchase of the building supplies and
materials, the manufacturer shall remit the tax due on the value
of the building supplies and materials used in the manufacture of the modular dwelling at the time of sale of the modular dwelling.
If the manufacturer pays the tax at the time of purchase of the
building supplies and materials, the manufacturer is responsible
for maintaining records evidencing payment of the tax. Failure
to maintain such records will result in the tax being assessed to
the manufacturer.
(b) Persons engaged in the sale and installation of a
modular dwelling shall pay the tax imposed by this article on
only the value of the materials used in the manufacture and
installation of the modular dwelling and the preparation of the
site for permanent installation and not on the labor involved in
such activities. For purposes of this section, the value of the
materials used in the manufacture of the modular dwelling shall
be the actual cost of the materials and building supplies to the
manufacturer as delineated on the invoice to the purchaser. If
the actual cost of the materials is not available, then the cost
of the materials used in the manufacture of the modular dwelling
shall be sixty percent of the total cost of the modular dwelling.
A credit will be given to the purchaser for any sales or use tax
that has been lawfully imposed by another state and paid by the
manufacturer on the purchase of building supplies and materials
used in the manufacture of the modular dwelling. If the
manufacturer pays the tax at the time of purchase of the building
supplies and materials, the manufacturer is responsible for
maintaining records evidencing payment of the tax and delineating
the amount on the invoice. Failure to maintain such records will
result in the credit being denied.
(c) Definition of modular dwelling. -- For purposes of this
article, a modular dwelling shall include, but not be limited to,
single and multifamily houses, apartment units and commercial
dwellings comprised of two or more sections without a permanent
chassis, built to a state or model code other than the National
Manufactured Housing Construction and Safety Standards Act of
1974, which are primarily constructed at a location other than
the permanent site at which they are to be finally assembled and
which are shipped to the site with most permanent components in
place.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Senate Bill No. 664--A Bill to amend article fifteen,
chapter eleven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new section,
designated section seven-a; and to amend article fifteen-a of said chapter by adding thereto a new section, designated section
two-b, all relating to consumers sales and service and use tax on
sales and installation of modular dwellings.