As used in this chapter, unless the context clearly shows otherwise, the termor phrase:
"Advertising" means the planning, creating, or placing of advertising innewspapers, magazines, billboards, broadcasting and other media, including,without limitation, the providing of concept, writing, graphic design,mechanical art, photography and production supervision. Any person providingadvertising as defined herein shall be deemed to be the user or consumer ofall tangible personal property purchased for use in such advertising.
"Amplification, transmission and distribution equipment" means, but is notlimited to, production, distribution, and other equipment used to provideInternet-access services, such as computer and communications equipment andsoftware used for storing, processing and retrieving end-user subscribers'requests.
"Business" includes any activity engaged in by any person, or caused to beengaged in by him, with the object of gain, benefit or advantage, eitherdirectly or indirectly.
"Cost price" means the actual cost of an item or article of tangiblepersonal property computed in the same manner as the sales price as definedin this section without any deductions therefrom on account of the cost ofmaterials used, labor, or service costs, transportation charges, or anyexpenses whatsoever.
"Custom program" means a computer program which is specifically designedand developed only for one customer. The combining of two or more prewrittenprograms does not constitute a custom computer program. A prewritten programthat is modified to any degree remains a prewritten program and does notbecome custom.
"Distribution" means the transfer or delivery of tangible personal propertyfor use, consumption, or storage by the distributee, and the use,consumption, or storage of tangible personal property by a person who hasprocessed, manufactured, refined, or converted such property, but does notinclude the transfer or delivery of tangible personal property for resale orany use, consumption, or storage otherwise exempt under this chapter.
"Gross proceeds" means the charges made or voluntary contributions receivedfor the lease or rental of tangible personal property or for furnishingservices, computed with the same deductions, where applicable, as for salesprice as defined in this section over the term of the lease, rental, service,or use, but not less frequently than monthly.
"Gross sales" means the sum total of all retail sales of tangible personalproperty or services as defined in this chapter, without any deduction,except as provided in this chapter. "Gross sales" shall not include thefederal retailers' excise tax or the federal diesel fuel excise tax imposedin § 4091 of the Internal Revenue Code if the excise tax is billed to thepurchaser separately from the selling price of the article, or the Virginiaretail sales or use tax, or any sales or use tax imposed by any county orcity under § 58.1-605 or 58.1-606.
"Import" and "imported" are words applicable to tangible personalproperty imported into the Commonwealth from other states as well as fromforeign countries, and "export" and "exported" are words applicable totangible personal property exported from the Commonwealth to other states aswell as to foreign countries.
"In this Commonwealth" or "in the Commonwealth" means within the limitsof the Commonwealth of Virginia and includes all territory within theselimits owned by or ceded to the United States of America.
"Integrated process," when used in relation to semiconductor manufacturing,means a process that begins with the research or development of semiconductorproducts, equipment, or processes, includes the handling and storage of rawmaterials at a plant site, and continues to the point that the product ispackaged for final sale and either shipped or conveyed to a warehouse.Without limiting the foregoing, any semiconductor equipment, fuel, power,energy, supplies, or other tangible personal property shall be deemed used aspart of the integrated process if its use contributes, before, during, orafter production, to higher product quality, production yields, or processefficiencies. Except as otherwise provided by law, such term shall not meangeneral maintenance or administration.
"Internet" means collectively, the myriad of computer andtelecommunications facilities, which comprise the interconnected world-widenetwork of computer networks.
"Internet service" means a service that enables users to access proprietaryand other content, information electronic mail, and the Internet as part of apackage of services sold to end-user subscribers.
"Lease or rental" means the leasing or renting of tangible personalproperty and the possession or use thereof by the lessee or renter for aconsideration, without transfer of the title to such property.
"Manufacturing, processing, refining, or conversion" includes theproduction line of the plant starting with the handling and storage of rawmaterials at the plant site and continuing through the last step ofproduction where the product is finished or completed for sale and conveyedto a warehouse at the production site, and also includes equipment andsupplies used for production line testing and quality control. The term"manufacturing" shall also include the necessary ancillary activities ofnewspaper and magazine printing when such activities are performed by thepublisher of any newspaper or magazine for sale daily or regularly at averageintervals not exceeding three months.
The determination whether any manufacturing, mining, processing, refining orconversion activity is industrial in nature shall be made without regard toplant size, existence or size of finished product inventory, degree ofmechanization, amount of capital investment, number of employees or otherfactors relating principally to the size of the business. Further,"industrial in nature" shall include, but not be limited to, thosebusinesses classified in codes 10 through 14 and 20 through 39 published inthe Standard Industrial Classification Manual for 1972 and any supplementsissued thereafter.
"Modular building" means, but shall not be limited to, single andmultifamily houses, apartment units, commercial buildings, and permanentadditions thereof, comprised of one or more sections that are intended tobecome real property, primarily constructed at a location other than thepermanent site, built to comply with the Virginia Industrialized BuildingSafety Law (§ 36-70 et seq.) as regulated by the Virginia Department ofHousing and Community Development, and shipped with most permanent componentsin place to the site of final assembly. For purposes of this chapter, amodular building shall not include a mobile office as defined in § 58.1-2401or any manufactured building subject to and certified under the provisions ofthe National Manufactured Housing Construction and Safety Standards Act of1974 (42 U.S.C. § 5401 et seq.).
"Modular building manufacturer" means a person or corporation who owns oroperates a manufacturing facility and is engaged in the fabrication,construction and assembling of building supplies and materials into modularbuildings, as defined in this section, at a location other than at the sitewhere the modular building will be assembled on the permanent foundation andmay or may not be engaged in the process of affixing the modules to thefoundation at the permanent site.
"Modular building retailer" means any person who purchases or acquires amodular building from a modular building manufacturer, or from anotherperson, for subsequent sale to a customer residing within or outside of theCommonwealth, with or without installation of the modular building to thefoundation at the permanent site.
"Motor vehicle" means a "motor vehicle" as defined in § 58.1-2401,taxable under the provisions of the Virginia Motor Vehicles Sales and Use TaxAct (§ 58.1-2400 et seq.) and upon the sale of which all applicable motorvehicle sales and use taxes have been paid.
"Occasional sale" means a sale of tangible personal property not held orused by a seller in the course of an activity for which he is required tohold a certificate of registration, including the sale or exchange of all orsubstantially all the assets of any business and the reorganization orliquidation of any business, provided such sale or exchange is not one of aseries of sales and exchanges sufficient in number, scope and character toconstitute an activity requiring the holding of a certificate of registration.
"Open video system" means an open video system authorized pursuant to 47U.S.C. § 573 and, for purposes of this chapter only, shall also includeInternet service regardless of whether the provider of such service is also atelephone common carrier.
"Person" includes any individual, firm, copartnership, cooperative,nonprofit membership corporation, joint venture, association, corporation,estate, trust, business trust, trustee in bankruptcy, receiver, auctioneer,syndicate, assignee, club, society, or other group or combination acting as aunit, body politic or political subdivision, whether public or private, orquasi-public, and the plural of such term shall mean the same as the singular.
"Prewritten program" means a computer program that is prepared, held orexisting for general or repeated sale or lease, including a computer programdeveloped for in-house use and subsequently sold or leased to unrelated thirdparties.
"Railroad rolling stock" means locomotives, of whatever motive power,autocars, railroad cars of every kind and description, and all otherequipment determined by the Tax Commissioner to constitute railroad rollingstock.
"Retail sale" or a "sale at retail" means a sale to any person for anypurpose other than for resale in the form of tangible personal property orservices taxable under this chapter, and shall include any such transactionas the Tax Commissioner upon investigation finds to be in lieu of a sale. Allsales for resale must be made in strict compliance with regulationsapplicable to this chapter. Any dealer making a sale for resale which is notin strict compliance with such regulations shall be personally liable forpayment of the tax.
The terms "retail sale" and a "sale at retail" shall specifically includethe following: (i) the sale or charges for any room or rooms, lodgings, oraccommodations furnished to transients for less than 90 continuous days byany hotel, motel, inn, tourist camp, tourist cabin, camping grounds, club, orany other place in which rooms, lodging, space, or accommodations areregularly furnished to transients for a consideration; (ii) sales of tangiblepersonal property to persons for resale when because of the operation of thebusiness, or its very nature, or the lack of a place of business in which todisplay a certificate of registration, or the lack of a place of business inwhich to keep records, or the lack of adequate records, or because suchpersons are minors or transients, or because such persons are engaged inessentially service businesses, or for any other reason there is likelihoodthat the Commonwealth will lose tax funds due to the difficulty of policingsuch business operations; and (iii) the separately stated charge made forautomotive refinish repair materials that are permanently applied to oraffixed to a motor vehicle during its repair. The Tax Commissioner isauthorized to promulgate regulations requiring vendors of or sellers to suchpersons to collect the tax imposed by this chapter on the cost price of suchtangible personal property to such persons and may refuse to issuecertificates of registration to such persons.
The term "transient" shall not include a purchaser of camping memberships,time-shares, condominiums, or other similar contracts or interests thatpermit the use of, or constitute an interest in, real estate, however createdor sold and whether registered with the Commonwealth or not. Further, apurchaser of a right or license which entitles the purchaser to use theamenities and facilities of a specific real estate project on an ongoingbasis throughout its term shall not be deemed a transient; provided, however,that the term or time period involved is for seven years or more.
The terms "retail sale" and "sale at retail" shall not include a transferof title to tangible personal property after its use as tools, tooling,machinery or equipment, including dies, molds, and patterns, if (i) at thetime of purchase, the purchaser is obligated, under the terms of a writtencontract, to make the transfer and (ii) the transfer is made for the same ora greater consideration to the person for whom the purchaser manufacturesgoods.
"Retailer" means every person engaged in the business of making sales atretail, or for distribution, use, consumption, or storage to be used orconsumed in the Commonwealth.
"Sale" means any transfer of title or possession, or both, exchange,barter, lease or rental, conditional or otherwise, in any manner or by anymeans whatsoever, of tangible personal property and any rendition of ataxable service for a consideration, and includes the fabrication of tangiblepersonal property for consumers who furnish, either directly or indirectly,the materials used in fabrication, and the furnishing, preparing, or servingfor a consideration of any tangible personal property consumed on thepremises of the person furnishing, preparing, or serving such tangiblepersonal property. A transaction whereby the possession of property istransferred but the seller retains title as security for the payment of theprice shall be deemed a sale.
"Sales price" means the total amount for which tangible personal propertyor services are sold, including any services that are a part of the sale,valued in money, whether paid in money or otherwise, and includes any amountfor which credit is given to the purchaser, consumer, or lessee by thedealer, without any deduction therefrom on account of the cost of theproperty sold, the cost of materials used, labor or service costs, losses orany other expenses whatsoever. "Sales price" shall not include (i) any cashdiscount allowed and taken; (ii) finance charges, carrying charges, servicecharges or interest from credit extended on sales of tangible personalproperty under conditional sale contracts or other conditional contractsproviding for deferred payments of the purchase price; (iii) separatelystated local property taxes collected; (iv) that portion of the amount paidby the purchaser as a discretionary gratuity added to the price of a meal; or(v) that portion of the amount paid by the purchaser as a mandatory gratuityor service charge added by a restaurant to the price of a meal, but only tothe extent that such mandatory gratuity or service charge does not exceed 20%of the price of the meal. Where used articles are taken in trade, or in aseries of trades as a credit or part payment on the sale of new or usedarticles, the tax levied by this chapter shall be paid on the net differencebetween the sales price of the new or used articles and the credit for theused articles.
"Semiconductor cleanrooms" means the integrated systems, fixtures, piping,partitions, flooring, lighting, equipment, and all other property used toreduce contamination or to control airflow, temperature, humidity, vibration,or other environmental conditions required for the integrated process ofsemiconductor manufacturing.
"Semiconductor equipment" means (i) machinery or tools or repair parts orreplacements thereof; (ii) the related accessories, components, pedestals,bases, or foundations used in connection with the operation of the equipment,without regard to the proximity to the equipment, the method of attachment,or whether the equipment or accessories are affixed to the realty; (iii)semiconductor wafers and other property or supplies used to install, test,calibrate or recalibrate, characterize, condition, measure, or maintain theequipment and settings thereof; and (iv) equipment and supplies used forquality control testing of product, materials, equipment, or processes; orthe measurement of equipment performance or production parameters regardlessof where or when the quality control, testing, or measuring activity takesplace, how the activity affects the operation of equipment, or whether theequipment and supplies come into contact with the product.
"Storage" means any keeping or retention of tangible personal property foruse, consumption or distribution in the Commonwealth, or for any purposeother than sale at retail in the regular course of business.
"Tangible personal property" means personal property which may be seen,weighed, measured, felt, or touched, or is in any other manner perceptible tothe senses. The term "tangible personal property" shall not include stocks,bonds, notes, insurance or other obligations or securities. The term"tangible personal property" shall include (i) telephone calling cards upontheir initial sale, which shall be exempt from all other state and localutility taxes, and (ii) manufactured signs.
"Use" means the exercise of any right or power over tangible personalproperty incident to the ownership thereof, except that it does not includethe sale at retail of that property in the regular course of business. Theterm does not include the exercise of any right or power, including use,distribution, or storage, over any tangible personal property sold to anonresident donor for delivery outside of the Commonwealth to a nonresidentrecipient pursuant to an order placed by the donor from outside theCommonwealth via mail or telephone. The term does not include any saledetermined to be a gift transaction, subject to tax under § 58.1-604.6.
"Use tax" refers to the tax imposed upon the use, consumption,distribution, and storage as herein defined.
"Used directly," when used in relation to manufacturing, processing,refining, or conversion, refers to those activities which are an integralpart of the production of a product, including all steps of an integratedmanufacturing or mining process, but not including ancillary activities suchas general maintenance or administration. When used in relation to mining, itshall refer to the activities specified above, and in addition, anyreclamation activity of the land previously mined by the mining companyrequired by state or federal law.
"Video programmer" means a person or entity that provides video programmingto end-user subscribers.
"Video programming" means video and/or information programming provided byor generally considered comparable to programming provided by a cableoperator including, but not limited to, Internet service.
(Code 1950, §§ 58-441.2, 58-441.3, 58-441.6; 1966, c. 151; 1972, c. 680;1973, c. 313; 1974, c. 431; 1976, cc. 375, 489, 666, 712, 764, 770; 1977, cc.247, 504; 1978, cc. 50, 82, 181, 505, 656, 665, 706, 784, 819; 1979, cc. 148,205, 555, 556, 557, 558, 561, 562, 564, 572, 575; 1980, cc. 81, 610, 611,617, 618, 621, 631, 753, 756; 1981, cc. 398, 400, 405, 409, 416, 599; 1982,cc. 533, 546, 547, 636, 649; 1983, cc. 100, 184, 384, 414, 557, 565, 599;1984, cc. 419, 522, 675, 683, 690, 693; 1985, c. 473; 1986, c. 22; 1988, c.899; 1989, cc. 581, 739; 1995, c. 96; 1999, cc. 138, 187, 723, 981; 2000, c.425; 2004, c. 60; 2005, cc. 121, 122, 355; 2006, cc. 519, 541, 568, 602;2007, c. 751.)
As used in this chapter, unless the context clearly shows otherwise, the termor phrase:
"Advertising" means the planning, creating, or placing of advertising innewspapers, magazines, billboards, broadcasting and other media, including,without limitation, the providing of concept, writing, graphic design,mechanical art, photography and production supervision. Any person providingadvertising as defined herein shall be deemed to be the user or consumer ofall tangible personal property purchased for use in such advertising.
"Amplification, transmission and distribution equipment" means, but is notlimited to, production, distribution, and other equipment used to provideInternet-access services, such as computer and communications equipment andsoftware used for storing, processing and retrieving end-user subscribers'requests.
"Business" includes any activity engaged in by any person, or caused to beengaged in by him, with the object of gain, benefit or advantage, eitherdirectly or indirectly.
"Cost price" means the actual cost of an item or article of tangiblepersonal property computed in the same manner as the sales price as definedin this section without any deductions therefrom on account of the cost ofmaterials used, labor, or service costs, transportation charges, or anyexpenses whatsoever.
"Custom program" means a computer program which is specifically designedand developed only for one customer. The combining of two or more prewrittenprograms does not constitute a custom computer program. A prewritten programthat is modified to any degree remains a prewritten program and does notbecome custom.
"Distribution" means the transfer or delivery of tangible personal propertyfor use, consumption, or storage by the distributee, and the use,consumption, or storage of tangible personal property by a person who hasprocessed, manufactured, refined, or converted such property, but does notinclude the transfer or delivery of tangible personal property for resale orany use, consumption, or storage otherwise exempt under this chapter.
"Gross proceeds" means the charges made or voluntary contributions receivedfor the lease or rental of tangible personal property or for furnishingservices, computed with the same deductions, where applicable, as for salesprice as defined in this section over the term of the lease, rental, service,or use, but not less frequently than monthly.
"Gross sales" means the sum total of all retail sales of tangible personalproperty or services as defined in this chapter, without any deduction,except as provided in this chapter. "Gross sales" shall not include thefederal retailers' excise tax or the federal diesel fuel excise tax imposedin § 4091 of the Internal Revenue Code if the excise tax is billed to thepurchaser separately from the selling price of the article, or the Virginiaretail sales or use tax, or any sales or use tax imposed by any county orcity under § 58.1-605 or 58.1-606.
"Import" and "imported" are words applicable to tangible personalproperty imported into the Commonwealth from other states as well as fromforeign countries, and "export" and "exported" are words applicable totangible personal property exported from the Commonwealth to other states aswell as to foreign countries.
"In this Commonwealth" or "in the Commonwealth" means within the limitsof the Commonwealth of Virginia and includes all territory within theselimits owned by or ceded to the United States of America.
"Integrated process," when used in relation to semiconductor manufacturing,means a process that begins with the research or development of semiconductorproducts, equipment, or processes, includes the handling and storage of rawmaterials at a plant site, and continues to the point that the product ispackaged for final sale and either shipped or conveyed to a warehouse.Without limiting the foregoing, any semiconductor equipment, fuel, power,energy, supplies, or other tangible personal property shall be deemed used aspart of the integrated process if its use contributes, before, during, orafter production, to higher product quality, production yields, or processefficiencies. Except as otherwise provided by law, such term shall not meangeneral maintenance or administration.
"Internet" means collectively, the myriad of computer andtelecommunications facilities, which comprise the interconnected world-widenetwork of computer networks.
"Internet service" means a service that enables users to access proprietaryand other content, information electronic mail, and the Internet as part of apackage of services sold to end-user subscribers.
"Lease or rental" means the leasing or renting of tangible personalproperty and the possession or use thereof by the lessee or renter for aconsideration, without transfer of the title to such property.
"Manufacturing, processing, refining, or conversion" includes theproduction line of the plant starting with the handling and storage of rawmaterials at the plant site and continuing through the last step ofproduction where the product is finished or completed for sale and conveyedto a warehouse at the production site, and also includes equipment andsupplies used for production line testing and quality control. The term"manufacturing" shall also include the necessary ancillary activities ofnewspaper and magazine printing when such activities are performed by thepublisher of any newspaper or magazine for sale daily or regularly at averageintervals not exceeding three months.
The determination whether any manufacturing, mining, processing, refining orconversion activity is industrial in nature shall be made without regard toplant size, existence or size of finished product inventory, degree ofmechanization, amount of capital investment, number of employees or otherfactors relating principally to the size of the business. Further,"industrial in nature" shall include, but not be limited to, thosebusinesses classified in codes 10 through 14 and 20 through 39 published inthe Standard Industrial Classification Manual for 1972 and any supplementsissued thereafter.
"Modular building" means, but shall not be limited to, single andmultifamily houses, apartment units, commercial buildings, and permanentadditions thereof, comprised of one or more sections that are intended tobecome real property, primarily constructed at a location other than thepermanent site, built to comply with the Virginia Industrialized BuildingSafety Law (§ 36-70 et seq.) as regulated by the Virginia Department ofHousing and Community Development, and shipped with most permanent componentsin place to the site of final assembly. For purposes of this chapter, amodular building shall not include a mobile office as defined in § 58.1-2401or any manufactured building subject to and certified under the provisions ofthe National Manufactured Housing Construction and Safety Standards Act of1974 (42 U.S.C. § 5401 et seq.).
"Modular building manufacturer" means a person or corporation who owns oroperates a manufacturing facility and is engaged in the fabrication,construction and assembling of building supplies and materials into modularbuildings, as defined in this section, at a location other than at the sitewhere the modular building will be assembled on the permanent foundation andmay or may not be engaged in the process of affixing the modules to thefoundation at the permanent site.
"Modular building retailer" means any person who purchases or acquires amodular building from a modular building manufacturer, or from anotherperson, for subsequent sale to a customer residing within or outside of theCommonwealth, with or without installation of the modular building to thefoundation at the permanent site.
"Motor vehicle" means a "motor vehicle" as defined in § 58.1-2401,taxable under the provisions of the Virginia Motor Vehicles Sales and Use TaxAct (§ 58.1-2400 et seq.) and upon the sale of which all applicable motorvehicle sales and use taxes have been paid.
"Occasional sale" means a sale of tangible personal property not held orused by a seller in the course of an activity for which he is required tohold a certificate of registration, including the sale or exchange of all orsubstantially all the assets of any business and the reorganization orliquidation of any business, provided such sale or exchange is not one of aseries of sales and exchanges sufficient in number, scope and character toconstitute an activity requiring the holding of a certificate of registration.
"Open video system" means an open video system authorized pursuant to 47U.S.C. § 573 and, for purposes of this chapter only, shall also includeInternet service regardless of whether the provider of such service is also atelephone common carrier.
"Person" includes any individual, firm, copartnership, cooperative,nonprofit membership corporation, joint venture, association, corporation,estate, trust, business trust, trustee in bankruptcy, receiver, auctioneer,syndicate, assignee, club, society, or other group or combination acting as aunit, body politic or political subdivision, whether public or private, orquasi-public, and the plural of such term shall mean the same as the singular.
"Prewritten program" means a computer program that is prepared, held orexisting for general or repeated sale or lease, including a computer programdeveloped for in-house use and subsequently sold or leased to unrelated thirdparties.
"Railroad rolling stock" means locomotives, of whatever motive power,autocars, railroad cars of every kind and description, and all otherequipment determined by the Tax Commissioner to constitute railroad rollingstock.
"Retail sale" or a "sale at retail" means a sale to any person for anypurpose other than for resale in the form of tangible personal property orservices taxable under this chapter, and shall include any such transactionas the Tax Commissioner upon investigation finds to be in lieu of a sale. Allsales for resale must be made in strict compliance with regulationsapplicable to this chapter. Any dealer making a sale for resale which is notin strict compliance with such regulations shall be personally liable forpayment of the tax.
The terms "retail sale" and a "sale at retail" shall specifically includethe following: (i) the sale or charges for any room or rooms, lodgings, oraccommodations furnished to transients for less than 90 continuous days byany hotel, motel, inn, tourist camp, tourist cabin, camping grounds, club, orany other place in which rooms, lodging, space, or accommodations areregularly furnished to transients for a consideration; (ii) sales of tangiblepersonal property to persons for resale when because of the operation of thebusiness, or its very nature, or the lack of a place of business in which todisplay a certificate of registration, or the lack of a place of business inwhich to keep records, or the lack of adequate records, or because suchpersons are minors or transients, or because such persons are engaged inessentially service businesses, or for any other reason there is likelihoodthat the Commonwealth will lose tax funds due to the difficulty of policingsuch business operations; and (iii) the separately stated charge made forautomotive refinish repair materials that are permanently applied to oraffixed to a motor vehicle during its repair. The Tax Commissioner isauthorized to promulgate regulations requiring vendors of or sellers to suchpersons to collect the tax imposed by this chapter on the cost price of suchtangible personal property to such persons and may refuse to issuecertificates of registration to such persons.
The term "transient" shall not include a purchaser of camping memberships,time-shares, condominiums, or other similar contracts or interests thatpermit the use of, or constitute an interest in, real estate, however createdor sold and whether registered with the Commonwealth or not. Further, apurchaser of a right or license which entitles the purchaser to use theamenities and facilities of a specific real estate project on an ongoingbasis throughout its term shall not be deemed a transient; provided, however,that the term or time period involved is for seven years or more.
The terms "retail sale" and "sale at retail" shall not include a transferof title to tangible personal property after its use as tools, tooling,machinery or equipment, including dies, molds, and patterns, if (i) at thetime of purchase, the purchaser is obligated, under the terms of a writtencontract, to make the transfer and (ii) the transfer is made for the same ora greater consideration to the person for whom the purchaser manufacturesgoods.
"Retailer" means every person engaged in the business of making sales atretail, or for distribution, use, consumption, or storage to be used orconsumed in the Commonwealth.
"Sale" means any transfer of title or possession, or both, exchange,barter, lease or rental, conditional or otherwise, in any manner or by anymeans whatsoever, of tangible personal property and any rendition of ataxable service for a consideration, and includes the fabrication of tangiblepersonal property for consumers who furnish, either directly or indirectly,the materials used in fabrication, and the furnishing, preparing, or servingfor a consideration of any tangible personal property consumed on thepremises of the person furnishing, preparing, or serving such tangiblepersonal property. A transaction whereby the possession of property istransferred but the seller retains title as security for the payment of theprice shall be deemed a sale.
"Sales price" means the total amount for which tangible personal propertyor services are sold, including any services that are a part of the sale,valued in money, whether paid in money or otherwise, and includes any amountfor which credit is given to the purchaser, consumer, or lessee by thedealer, without any deduction therefrom on account of the cost of theproperty sold, the cost of materials used, labor or service costs, losses orany other expenses whatsoever. "Sales price" shall not include (i) any cashdiscount allowed and taken; (ii) finance charges, carrying charges, servicecharges or interest from credit extended on sales of tangible personalproperty under conditional sale contracts or other conditional contractsproviding for deferred payments of the purchase price; (iii) separatelystated local property taxes collected; (iv) that portion of the amount paidby the purchaser as a discretionary gratuity added to the price of a meal; or(v) that portion of the amount paid by the purchaser as a mandatory gratuityor service charge added by a restaurant to the price of a meal, but only tothe extent that such mandatory gratuity or service charge does not exceed 20%of the price of the meal. Where used articles are taken in trade, or in aseries of trades as a credit or part payment on the sale of new or usedarticles, the tax levied by this chapter shall be paid on the net differencebetween the sales price of the new or used articles and the credit for theused articles.
"Semiconductor cleanrooms" means the integrated systems, fixtures, piping,partitions, flooring, lighting, equipment, and all other property used toreduce contamination or to control airflow, temperature, humidity, vibration,or other environmental conditions required for the integrated process ofsemiconductor manufacturing.
"Semiconductor equipment" means (i) machinery or tools or repair parts orreplacements thereof; (ii) the related accessories, components, pedestals,bases, or foundations used in connection with the operation of the equipment,without regard to the proximity to the equipment, the method of attachment,or whether the equipment or accessories are affixed to the realty; (iii)semiconductor wafers and other property or supplies used to install, test,calibrate or recalibrate, characterize, condition, measure, or maintain theequipment and settings thereof; and (iv) equipment and supplies used forquality control testing of product, materials, equipment, or processes; orthe measurement of equipment performance or production parameters regardlessof where or when the quality control, testing, or measuring activity takesplace, how the activity affects the operation of equipment, or whether theequipment and supplies come into contact with the product.
"Storage" means any keeping or retention of tangible personal property foruse, consumption or distribution in the Commonwealth, or for any purposeother than sale at retail in the regular course of business.
"Tangible personal property" means personal property which may be seen,weighed, measured, felt, or touched, or is in any other manner perceptible tothe senses. The term "tangible personal property" shall not include stocks,bonds, notes, insurance or other obligations or securities. The term"tangible personal property" shall include (i) telephone calling cards upontheir initial sale, which shall be exempt from all other state and localutility taxes, and (ii) manufactured signs.
"Use" means the exercise of any right or power over tangible personalproperty incident to the ownership thereof, except that it does not includethe sale at retail of that property in the regular course of business. Theterm does not include the exercise of any right or power, including use,distribution, or storage, over any tangible personal property sold to anonresident donor for delivery outside of the Commonwealth to a nonresidentrecipient pursuant to an order placed by the donor from outside theCommonwealth via mail or telephone. The term does not include any saledetermined to be a gift transaction, subject to tax under § 58.1-604.6.
"Use tax" refers to the tax imposed upon the use, consumption,distribution, and storage as herein defined.
"Used directly," when used in relation to manufacturing, processing,refining, or conversion, refers to those activities which are an integralpart of the production of a product, including all steps of an integratedmanufacturing or mining process, but not including ancillary activities suchas general maintenance or administration. When used in relation to mining, itshall refer to the activities specified above, and in addition, anyreclamation activity of the land previously mined by the mining companyrequired by state or federal law.
"Video programmer" means a person or entity that provides video programmingto end-user subscribers.
"Video programming" means video and/or information programming provided byor generally considered comparable to programming provided by a cableoperator including, but not limited to, Internet service.
(Code 1950, §§ 58-441.2, 58-441.3, 58-441.6; 1966, c. 151; 1972, c. 680;1973, c. 313; 1974, c. 431; 1976, cc. 375, 489, 666, 712, 764, 770; 1977, cc.247, 504; 1978, cc. 50, 82, 181, 505, 656, 665, 706, 784, 819; 1979, cc. 148,205, 555, 556, 557, 558, 561, 562, 564, 572, 575; 1980, cc. 81, 610, 611,617, 618, 621, 631, 753, 756; 1981, cc. 398, 400, 405, 409, 416, 599; 1982,cc. 533, 546, 547, 636, 649; 1983, cc. 100, 184, 384, 414, 557, 565, 599;1984, cc. 419, 522, 675, 683, 690, 693; 1985, c. 473; 1986, c. 22; 1988, c.899; 1989, cc. 581, 739; 1995, c. 96; 1999, cc. 138, 187, 723, 981; 2000, c.425; 2004, c. 60; 2005, cc. 121, 122, 355; 2006, cc. 519, 541, 568, 602;2007, c. 751.)
As used in this chapter, unless the context clearly shows otherwise, the termor phrase:
"Advertising" means the planning, creating, or placing of advertising innewspapers, magazines, billboards, broadcasting and other media, including,without limitation, the providing of concept, writing, graphic design,mechanical art, photography and production supervision. Any person providingadvertising as defined herein shall be deemed to be the user or consumer ofall tangible personal property purchased for use in such advertising.
"Amplification, transmission and distribution equipment" means, but is notlimited to, production, distribution, and other equipment used to provideInternet-access services, such as computer and communications equipment andsoftware used for storing, processing and retrieving end-user subscribers'requests.
"Business" includes any activity engaged in by any person, or caused to beengaged in by him, with the object of gain, benefit or advantage, eitherdirectly or indirectly.
"Cost price" means the actual cost of an item or article of tangiblepersonal property computed in the same manner as the sales price as definedin this section without any deductions therefrom on account of the cost ofmaterials used, labor, or service costs, transportation charges, or anyexpenses whatsoever.
"Custom program" means a computer program which is specifically designedand developed only for one customer. The combining of two or more prewrittenprograms does not constitute a custom computer program. A prewritten programthat is modified to any degree remains a prewritten program and does notbecome custom.
"Distribution" means the transfer or delivery of tangible personal propertyfor use, consumption, or storage by the distributee, and the use,consumption, or storage of tangible personal property by a person who hasprocessed, manufactured, refined, or converted such property, but does notinclude the transfer or delivery of tangible personal property for resale orany use, consumption, or storage otherwise exempt under this chapter.
"Gross proceeds" means the charges made or voluntary contributions receivedfor the lease or rental of tangible personal property or for furnishingservices, computed with the same deductions, where applicable, as for salesprice as defined in this section over the term of the lease, rental, service,or use, but not less frequently than monthly.
"Gross sales" means the sum total of all retail sales of tangible personalproperty or services as defined in this chapter, without any deduction,except as provided in this chapter. "Gross sales" shall not include thefederal retailers' excise tax or the federal diesel fuel excise tax imposedin § 4091 of the Internal Revenue Code if the excise tax is billed to thepurchaser separately from the selling price of the article, or the Virginiaretail sales or use tax, or any sales or use tax imposed by any county orcity under § 58.1-605 or 58.1-606.
"Import" and "imported" are words applicable to tangible personalproperty imported into the Commonwealth from other states as well as fromforeign countries, and "export" and "exported" are words applicable totangible personal property exported from the Commonwealth to other states aswell as to foreign countries.
"In this Commonwealth" or "in the Commonwealth" means within the limitsof the Commonwealth of Virginia and includes all territory within theselimits owned by or ceded to the United States of America.
"Integrated process," when used in relation to semiconductor manufacturing,means a process that begins with the research or development of semiconductorproducts, equipment, or processes, includes the handling and storage of rawmaterials at a plant site, and continues to the point that the product ispackaged for final sale and either shipped or conveyed to a warehouse.Without limiting the foregoing, any semiconductor equipment, fuel, power,energy, supplies, or other tangible personal property shall be deemed used aspart of the integrated process if its use contributes, before, during, orafter production, to higher product quality, production yields, or processefficiencies. Except as otherwise provided by law, such term shall not meangeneral maintenance or administration.
"Internet" means collectively, the myriad of computer andtelecommunications facilities, which comprise the interconnected world-widenetwork of computer networks.
"Internet service" means a service that enables users to access proprietaryand other content, information electronic mail, and the Internet as part of apackage of services sold to end-user subscribers.
"Lease or rental" means the leasing or renting of tangible personalproperty and the possession or use thereof by the lessee or renter for aconsideration, without transfer of the title to such property.
"Manufacturing, processing, refining, or conversion" includes theproduction line of the plant starting with the handling and storage of rawmaterials at the plant site and continuing through the last step ofproduction where the product is finished or completed for sale and conveyedto a warehouse at the production site, and also includes equipment andsupplies used for production line testing and quality control. The term"manufacturing" shall also include the necessary ancillary activities ofnewspaper and magazine printing when such activities are performed by thepublisher of any newspaper or magazine for sale daily or regularly at averageintervals not exceeding three months.
The determination whether any manufacturing, mining, processing, refining orconversion activity is industrial in nature shall be made without regard toplant size, existence or size of finished product inventory, degree ofmechanization, amount of capital investment, number of employees or otherfactors relating principally to the size of the business. Further,"industrial in nature" shall include, but not be limited to, thosebusinesses classified in codes 10 through 14 and 20 through 39 published inthe Standard Industrial Classification Manual for 1972 and any supplementsissued thereafter.
"Modular building" means, but shall not be limited to, single andmultifamily houses, apartment units, commercial buildings, and permanentadditions thereof, comprised of one or more sections that are intended tobecome real property, primarily constructed at a location other than thepermanent site, built to comply with the Virginia Industrialized BuildingSafety Law (§ 36-70 et seq.) as regulated by the Virginia Department ofHousing and Community Development, and shipped with most permanent componentsin place to the site of final assembly. For purposes of this chapter, amodular building shall not include a mobile office as defined in § 58.1-2401or any manufactured building subject to and certified under the provisions ofthe National Manufactured Housing Construction and Safety Standards Act of1974 (42 U.S.C. § 5401 et seq.).
"Modular building manufacturer" means a person or corporation who owns oroperates a manufacturing facility and is engaged in the fabrication,construction and assembling of building supplies and materials into modularbuildings, as defined in this section, at a location other than at the sitewhere the modular building will be assembled on the permanent foundation andmay or may not be engaged in the process of affixing the modules to thefoundation at the permanent site.
"Modular building retailer" means any person who purchases or acquires amodular building from a modular building manufacturer, or from anotherperson, for subsequent sale to a customer residing within or outside of theCommonwealth, with or without installation of the modular building to thefoundation at the permanent site.
"Motor vehicle" means a "motor vehicle" as defined in § 58.1-2401,taxable under the provisions of the Virginia Motor Vehicles Sales and Use TaxAct (§ 58.1-2400 et seq.) and upon the sale of which all applicable motorvehicle sales and use taxes have been paid.
"Occasional sale" means a sale of tangible personal property not held orused by a seller in the course of an activity for which he is required tohold a certificate of registration, including the sale or exchange of all orsubstantially all the assets of any business and the reorganization orliquidation of any business, provided such sale or exchange is not one of aseries of sales and exchanges sufficient in number, scope and character toconstitute an activity requiring the holding of a certificate of registration.
"Open video system" means an open video system authorized pursuant to 47U.S.C. § 573 and, for purposes of this chapter only, shall also includeInternet service regardless of whether the provider of such service is also atelephone common carrier.
"Person" includes any individual, firm, copartnership, cooperative,nonprofit membership corporation, joint venture, association, corporation,estate, trust, business trust, trustee in bankruptcy, receiver, auctioneer,syndicate, assignee, club, society, or other group or combination acting as aunit, body politic or political subdivision, whether public or private, orquasi-public, and the plural of such term shall mean the same as the singular.
"Prewritten program" means a computer program that is prepared, held orexisting for general or repeated sale or lease, including a computer programdeveloped for in-house use and subsequently sold or leased to unrelated thirdparties.
"Railroad rolling stock" means locomotives, of whatever motive power,autocars, railroad cars of every kind and description, and all otherequipment determined by the Tax Commissioner to constitute railroad rollingstock.
"Retail sale" or a "sale at retail" means a sale to any person for anypurpose other than for resale in the form of tangible personal property orservices taxable under this chapter, and shall include any such transactionas the Tax Commissioner upon investigation finds to be in lieu of a sale. Allsales for resale must be made in strict compliance with regulationsapplicable to this chapter. Any dealer making a sale for resale which is notin strict compliance with such regulations shall be personally liable forpayment of the tax.
The terms "retail sale" and a "sale at retail" shall specifically includethe following: (i) the sale or charges for any room or rooms, lodgings, oraccommodations furnished to transients for less than 90 continuous days byany hotel, motel, inn, tourist camp, tourist cabin, camping grounds, club, orany other place in which rooms, lodging, space, or accommodations areregularly furnished to transients for a consideration; (ii) sales of tangiblepersonal property to persons for resale when because of the operation of thebusiness, or its very nature, or the lack of a place of business in which todisplay a certificate of registration, or the lack of a place of business inwhich to keep records, or the lack of adequate records, or because suchpersons are minors or transients, or because such persons are engaged inessentially service businesses, or for any other reason there is likelihoodthat the Commonwealth will lose tax funds due to the difficulty of policingsuch business operations; and (iii) the separately stated charge made forautomotive refinish repair materials that are permanently applied to oraffixed to a motor vehicle during its repair. The Tax Commissioner isauthorized to promulgate regulations requiring vendors of or sellers to suchpersons to collect the tax imposed by this chapter on the cost price of suchtangible personal property to such persons and may refuse to issuecertificates of registration to such persons.
The term "transient" shall not include a purchaser of camping memberships,time-shares, condominiums, or other similar contracts or interests thatpermit the use of, or constitute an interest in, real estate, however createdor sold and whether registered with the Commonwealth or not. Further, apurchaser of a right or license which entitles the purchaser to use theamenities and facilities of a specific real estate project on an ongoingbasis throughout its term shall not be deemed a transient; provided, however,that the term or time period involved is for seven years or more.
The terms "retail sale" and "sale at retail" shall not include a transferof title to tangible personal property after its use as tools, tooling,machinery or equipment, including dies, molds, and patterns, if (i) at thetime of purchase, the purchaser is obligated, under the terms of a writtencontract, to make the transfer and (ii) the transfer is made for the same ora greater consideration to the person for whom the purchaser manufacturesgoods.
"Retailer" means every person engaged in the business of making sales atretail, or for distribution, use, consumption, or storage to be used orconsumed in the Commonwealth.
"Sale" means any transfer of title or possession, or both, exchange,barter, lease or rental, conditional or otherwise, in any manner or by anymeans whatsoever, of tangible personal property and any rendition of ataxable service for a consideration, and includes the fabrication of tangiblepersonal property for consumers who furnish, either directly or indirectly,the materials used in fabrication, and the furnishing, preparing, or servingfor a consideration of any tangible personal property consumed on thepremises of the person furnishing, preparing, or serving such tangiblepersonal property. A transaction whereby the possession of property istransferred but the seller retains title as security for the payment of theprice shall be deemed a sale.
"Sales price" means the total amount for which tangible personal propertyor services are sold, including any services that are a part of the sale,valued in money, whether paid in money or otherwise, and includes any amountfor which credit is given to the purchaser, consumer, or lessee by thedealer, without any deduction therefrom on account of the cost of theproperty sold, the cost of materials used, labor or service costs, losses orany other expenses whatsoever. "Sales price" shall not include (i) any cashdiscount allowed and taken; (ii) finance charges, carrying charges, servicecharges or interest from credit extended on sales of tangible personalproperty under conditional sale contracts or other conditional contractsproviding for deferred payments of the purchase price; (iii) separatelystated local property taxes collected; (iv) that portion of the amount paidby the purchaser as a discretionary gratuity added to the price of a meal; or(v) that portion of the amount paid by the purchaser as a mandatory gratuityor service charge added by a restaurant to the price of a meal, but only tothe extent that such mandatory gratuity or service charge does not exceed 20%of the price of the meal. Where used articles are taken in trade, or in aseries of trades as a credit or part payment on the sale of new or usedarticles, the tax levied by this chapter shall be paid on the net differencebetween the sales price of the new or used articles and the credit for theused articles.
"Semiconductor cleanrooms" means the integrated systems, fixtures, piping,partitions, flooring, lighting, equipment, and all other property used toreduce contamination or to control airflow, temperature, humidity, vibration,or other environmental conditions required for the integrated process ofsemiconductor manufacturing.
"Semiconductor equipment" means (i) machinery or tools or repair parts orreplacements thereof; (ii) the related accessories, components, pedestals,bases, or foundations used in connection with the operation of the equipment,without regard to the proximity to the equipment, the method of attachment,or whether the equipment or accessories are affixed to the realty; (iii)semiconductor wafers and other property or supplies used to install, test,calibrate or recalibrate, characterize, condition, measure, or maintain theequipment and settings thereof; and (iv) equipment and supplies used forquality control testing of product, materials, equipment, or processes; orthe measurement of equipment performance or production parameters regardlessof where or when the quality control, testing, or measuring activity takesplace, how the activity affects the operation of equipment, or whether theequipment and supplies come into contact with the product.
"Storage" means any keeping or retention of tangible personal property foruse, consumption or distribution in the Commonwealth, or for any purposeother than sale at retail in the regular course of business.
"Tangible personal property" means personal property which may be seen,weighed, measured, felt, or touched, or is in any other manner perceptible tothe senses. The term "tangible personal property" shall not include stocks,bonds, notes, insurance or other obligations or securities. The term"tangible personal property" shall include (i) telephone calling cards upontheir initial sale, which shall be exempt from all other state and localutility taxes, and (ii) manufactured signs.
"Use" means the exercise of any right or power over tangible personalproperty incident to the ownership thereof, except that it does not includethe sale at retail of that property in the regular course of business. Theterm does not include the exercise of any right or power, including use,distribution, or storage, over any tangible personal property sold to anonresident donor for delivery outside of the Commonwealth to a nonresidentrecipient pursuant to an order placed by the donor from outside theCommonwealth via mail or telephone. The term does not include any saledetermined to be a gift transaction, subject to tax under § 58.1-604.6.
"Use tax" refers to the tax imposed upon the use, consumption,distribution, and storage as herein defined.
"Used directly," when used in relation to manufacturing, processing,refining, or conversion, refers to those activities which are an integralpart of the production of a product, including all steps of an integratedmanufacturing or mining process, but not including ancillary activities suchas general maintenance or administration. When used in relation to mining, itshall refer to the activities specified above, and in addition, anyreclamation activity of the land previously mined by the mining companyrequired by state or federal law.
"Video programmer" means a person or entity that provides video programmingto end-user subscribers.
"Video programming" means video and/or information programming provided byor generally considered comparable to programming provided by a cableoperator including, but not limited to, Internet service.
(Code 1950, §§ 58-441.2, 58-441.3, 58-441.6; 1966, c. 151; 1972, c. 680;1973, c. 313; 1974, c. 431; 1976, cc. 375, 489, 666, 712, 764, 770; 1977, cc.247, 504; 1978, cc. 50, 82, 181, 505, 656, 665, 706, 784, 819; 1979, cc. 148,205, 555, 556, 557, 558, 561, 562, 564, 572, 575; 1980, cc. 81, 610, 611,617, 618, 621, 631, 753, 756; 1981, cc. 398, 400, 405, 409, 416, 599; 1982,cc. 533, 546, 547, 636, 649; 1983, cc. 100, 184, 384, 414, 557, 565, 599;1984, cc. 419, 522, 675, 683, 690, 693; 1985, c. 473; 1986, c. 22; 1988, c.899; 1989, cc. 581, 739; 1995, c. 96; 1999, cc. 138, 187, 723, 981; 2000, c.425; 2004, c. 60; 2005, cc. 121, 122, 355; 2006, cc. 519, 541, 568, 602;2007, c. 751.)
