764.02 DEFINITIONS.
   (a)   Terms used in this article or in the administration, collection and enforcement of the taxes imposed by this article and not otherwise defined in this ordinance shall have the meanings ascribed to them in articles nine, ten, fifteen, fifteen-a and fifteen-b, chapter eleven of the Code of West Virginia.
   (b)   As used in this section:
      (1)   "Business" includes all activities engaged in or caused to be engaged in by any person with the object of gain or economic benefit, direct or indirect, and all activities of the state and its political subdivisions which involve sales of tangible personal property or the rendering of services when those service activities compete with or may compete with the activities of other persons.
      (2)   "City" or "this City" means the City of Fairmont, West Virginia.
      (3)   "Code of West Virginia" or "West Virginia Code" means the Code of West Virginia, 1931, as amended.
      (4)   "Consumer" means any person purchasing tangible personal property, custom software or a taxable service from a retailer as defined in West Virginia Code §11-15A-1(b)(7) or from a seller as defined in West Virginia Code §11-15B-2.
      (5)   "Person" means any individual, partnership, association, corporation, limited liability company, limited liability partnership or any other legal entity, including this state or its political subdivisions or an agency of either, or the guardian, trustee, committee, executor or administrator of any person.
      (6)   "Purchase" means any transfer, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, for a consideration;
      (7)   "Purchase price" means the measure subject to the taxes imposed by this article and has the same meaning as sales price;
      (8)   "Purchaser" means a person to whom a sale of personal property is made or to whom a service is furnished.
      (9)   "Retail Sale" or "sale at retail" mean "retail sale" and "sales at retail" as defined in West Virginia Code §11-15B-2.   
      (10)   "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 the City: Provided, That when in the opinion of the Tax Commissioner it is necessary for the efficient administration of the use tax imposed pursuant to this article to regard any salespersons, representative, 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 the use taxes.
      (11)   "Retailer engaging in business in the city" or any like term, unless otherwise limited by federal statute, means and includes, but is not limited to:
         A.   Any retailer having or maintaining, occupying or using, within the City, 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 the City under the authority of the retailer or its subsidiary, irrespective of whether the place of business or agent is located in the City permanently or temporarily, or whether the retailer or subsidiary is admitted to do business within this state pursuant to West Virginia Code §§31D-15-1 et seq. or West Virginia Code §§31E-14-1 et seq.; or
         B.   Any retailer that is related to, or part of a unitary business with, a person, entity or business that, without regard to whether the retailer is admitted to do business in this state pursuant to West Virginia Code §§31D-15-1 et seq. or West Virginia Code §§31E-14-1 et seq., is a subsidiary of the retailer, or is related to, or unitary with, the retailer as a related entity, a related member or part of a unitary business, all as defined in West Virginia Code §§11-24-3a that:
            (i)   Pursuant to an agreement with or in cooperation with the related retailer, maintains an office, distribution house, sales house, warehouse or other place of business in the City;
            (ii)   Performs services in the City in connection with the tangible personal or services sold by the retailer, or any related entity, related member or part of the unitary business;
            (iii)   By an agent, or representative (by whatever name called), or employee, performs services in the City in connection with tangible personal property or services sold by the retailer, or any related entity, related member or part of the unitary business; or
            (iv)   Directly or indirectly, through or by an agent, representative or employee located in, or present in, the City, solicits business in the City for or on behalf of the retailer, or any related entity, related member or part of the unitary business.
         C.   For purposes of paragraph B. of this subdivision, the term "service" means and includes, but is not limited to, customer support services, help desk services, call center services, repair service, engineering service, installation service, assembly service, delivery service by means other than common carrier or the United States Postal Service, technical assistance services, the service of investigating, handling or otherwise assisting in resolving customer issues or complaints while in the City, the service of operating a mail order business or telephone, Internet or other remote order business from facilities located within the City, the service of operating a website or Internet-based business from a location within the City imposing the use tax, or any other service.
      (12)   "Sale," "sales" or "selling" have the meaning ascribed to those terms in West Virginia Code §§11-15B-2.
      (13)   "Sales price" has the meaning ascribed to that term in West Virginia Code §§ 11-15B-2.
      (14)   "Sales tax" means the tax levied under section 764-3 of this article
      (15)   "Service" or "selected service" have the meaning ascribed to those terms in West Virginia Code §§11-15-2 and 11-15B-2.
      (16)   "State sales tax" means the tax levied by West Virginia Code §§11-15-1 et seq.
      (17)   "State use tax" means the tax levied by West Virginia Code §§11-15A-1 et seq.
      (18)   "Tax" means the taxes imposed by this article and includes additions to tax, interest and penalties levied under West Virginia Tax Procedures and Administration Act, West Virginia Code §§11-10-1 et seq.
      (19)   "Tax Commissioner" means the State Tax Commissioner or his or her delegate. The term "delegate" in the phrase "or his or her delegate," when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Division duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority to perform the functions mentioned or described in articles fifteen or fifteen-b, chapter eleven of the Code of West Virginia, 1931, as amended, or the rules promulgated under those articles.
      (20)   "Ultimate consumer" or "consumer" means a person who uses or consumes services or personal property.
      (21)   "Use" for purposes of the tax imposed by Section 764.04 of this article 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; or
         B.   The use or enjoyment in this state of the result of a taxable service. As used in this definition, "enjoyment" includes a purchaser's right to direct the disposition of the property or the use of the taxable service, 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, custom software or the result of a taxable service for the purpose of subsequently transporting it outside the City for use thereafter solely outside this City.
      (22)   "Use tax" means the tax imposed by Section 764.04 of this article.
      (23)   "Vendor" means any person furnishing services taxed by this article or making sales of tangible personal property or custom software. "Vendor" and "seller" are used interchangeably in this article.
         (Ord. 1655. Passed 9-8-15.)