(a) Duty to collect tax. — For purposes of § 11-15A-1 et seq. of this code and for collection of use tax required under §11-15A-6 and § 11-15A-6b of this code, the phrase retailer engaging in business in this state also means and includes a remote seller, marketplace facilitator, or referrer that meets the requirements of subsection (e) of this section. A marketplace facilitator or referrer is required to collect and remit the use tax on all taxable sales of tangible personal property, [custom software] or services: (i) Made by the marketplace facilitator or referrer; or (ii) facilitated for marketplace sellers, to purchasers in this state.

Terms Used In West Virginia Code 11-15A-6b

  • agreement: when used in this article, has the same meaning as when used in §. See West Virginia Code 11-15A-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. See West Virginia Code 11-15A-1
  • commissioner: means the State Tax Commissioner, or his or her delegate. See West Virginia Code 11-15A-1
  • Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities. See West Virginia Code 11-15A-1
  • Marketplace: includes any means by which any marketplace seller sells or offers for sale tangible personal property, custom software, or services, for delivery into this state, regardless of whether the marketplace seller has a physical presence in this state. See West Virginia Code 11-15A-1
  • Marketplace facilitator: means a person that contracts with one or more sellers to facilitate for consideration, regardless of whether deducted as fees from the transaction, the sale of the seller's products through a physical or electronic marketplace operated by the person, and engages:

    (A) Directly, or indirectly, through one or more affiliated persons, in any of the following:

    (i) Transmitting or otherwise communicating the offer or acceptance between the buyer and seller. See West Virginia Code 11-15A-1

  • Marketplace seller: means a seller that makes retail sales through any physical or electronic marketplaces operated by a marketplace facilitator or directly resulting from a referral by a referrer, regardless of whether the seller is required to be registered with the Tax Commissioner as provided in §. See West Virginia Code 11-15A-1
  • Purchaser: means any consumer who purchases or leases a product or service sourced to this state under §. See West Virginia Code 11-15A-1
  • Referral: means the transfer by a referrer of a potential customer to a marketplace seller who advertises or lists products for sale on the referrer's platform. See West Virginia Code 11-15A-1
  • Referrer: means a person, other than a person engaging in the business of printing a newspaper or publishing a newspaper as defined in §. See West Virginia Code 11-15A-1
  • Remote seller: means any seller, other than a marketplace facilitator or referrer, who does not have a physical presence in this state that, through a platform, sells tangible personal property or services to persons in this state, the sale or use of which is subject to the tax imposed by this article. See West Virginia Code 11-15A-1
  • Resident: means any person that resides, is located, has a place of business, or is conducting business in West Virginia. See West Virginia Code 11-15A-1
  • Retailer: means and includes every person engaging in the business of selling, leasing or renting tangible personal property or custom software or furnishing a taxable service for use within the meaning of this article, or in the business of selling, at auction, tangible personal property or custom software 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 salespersons, 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 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. See West Virginia Code 11-15A-1
  • Seller: means a retailer, and includes every person selling or leasing tangible personal property or custom software or furnishing a taxable service in a transaction that is subject to the tax imposed by this article. See West Virginia Code 11-15A-1
  • Solicitor: means a person that directly or indirectly solicits business for a retailer. See West Virginia Code 11-15A-1
  • State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
  • Use: means and includes:

    (A) The exercise by any person of any right or power over tangible personal property or custom software incident to the ownership, possession or enjoyment of the property, or by any transaction in which possession of or the exercise of any right or power over tangible personal property, custom software or the result of a taxable service is acquired for a consideration, including any lease, rental or conditional sale of tangible personal property or custom software. See West Virginia Code 11-15A-1

(b) Agency. — For purposes of § 11-15A-6b of this code, a marketplace facilitator or referrer is deemed to be an agent of any marketplace seller making retail sales through the marketplace facilitator’s physical or electronic marketplace or directly resulting from a referral of the purchaser by the referrer.

(c) Sales made through a solicitor in this state. — A retailer is deemed to have a solicitor in this state if the retailer enters into an agreement with a resident under which the resident, for a commission, fee, or other similar consideration, directly or indirectly refers potential customers, whether by link on an internet site, or otherwise, to the retailer. This determination may be rebutted by a showing of proof that the resident with whom the retailer has an agreement did not engage in any solicitation in this state on behalf of the retailer that would satisfy the nexus requirement of the United States Constitution during the calendar year in question.

(d) Record keeping. — In addition to other applicable record keeping requirements, the Tax Commissioner may require a marketplace facilitator or referrer to provide or make available to the Tax Commissioner any information the commissioner determines is reasonably necessary to enforce the provisions of § 11-15A-1 et seq. of this code. Such information may include documentation of sales made by marketplace sellers through the marketplace facilitator’s physical or electronic marketplace or directly resulting from a referral by the referrer. The Tax Commissioner may prescribe by procedural rule promulgate, as provided in § 29A-3-1 et seq. of this code, the form and manner for providing this information.

(e) Economic nexus. — A marketplace facilitator, referrer, or remote seller shall collect the tax imposed by §11-15A-2 of the code when:

(1) The marketplace facilitator, referrer, or remote seller makes or facilitates West Virginia sales on its own behalf or on behalf of one or more marketplace sellers equal to or exceeding $100,000 in gross revenue for an immediately preceding calendar year, or a current calendar year; or

(2) The marketplace facilitator, referrer, or remote seller makes or facilitates West Virginia sales on its own behalf or on behalf of one or more marketplace sellers in 200 or more separate transactions for an immediately preceding calendar year or a current calendar year.

(f) Effective date. — This section enacted in 2019 shall apply to sales by a marketplace facilitator, or referrer, made on and after July 1, 2019.