§
58.1-602.
Definitions.
As used in this chapter,
unless the context clearly
shows otherwise, the term or
phrase:
"Advertising" means the
planning, creating, or
placing of advertising in
newspapers, magazines,
billboards, broadcasting and
other media, including,
without limitation, the
providing of concept,
writing, graphic design,
mechanical art, photography
and production supervision.
Any person providing
advertising as defined
herein shall be deemed to be
the user or consumer of all
tangible personal property
purchased for use in such
advertising.
"Amplification, transmission
and distribution equipment"
means, but is not limited
to, production,
distribution, and other
equipment used to provide
Internet-access services,
such as computer and
communications equipment and
software used for storing,
processing and retrieving
end-user subscribers'
requests.
"Business" includes any
activity engaged in by any
person, or caused to be
engaged in by him, with the
object of gain, benefit or
advantage, either directly
or indirectly.
"Cost price" means the
actual cost of an item or
article of tangible personal
property computed in the
same manner as the sales
price as defined in this
section without any
deductions therefrom on
account of the cost of
materials used, labor, or
service costs,
transportation charges, or
any expenses whatsoever.
"Custom program" means a
computer program which is
specifically designed and
developed only for one
customer. The combining of
two or more prewritten
programs does not constitute
a custom computer program. A
prewritten program that is
modified to any degree
remains a prewritten program
and does not become custom.
"Distribution" means the
transfer or delivery of
tangible personal property
for use, consumption, or
storage by the distributee,
and the use, consumption, or
storage of tangible personal
property by a person who has
processed, manufactured,
refined, or converted such
property, but does not
include the transfer or
delivery of tangible
personal property for resale
or any use, consumption, or
storage otherwise exempt
under this chapter.
"Gross proceeds" means the
charges made or voluntary
contributions received for
the lease or rental of
tangible personal property
or for furnishing services,
computed with the same
deductions, where
applicable, as for sales
price 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 personal property
or services as defined in
this chapter, without any
deduction, except as
provided in this chapter.
"Gross sales" shall not
include the federal
retailers' excise tax or the
federal diesel fuel excise
tax imposed in § 4091 of the
Internal Revenue Code if the
excise tax is billed to the
purchaser separately from
the selling price of the
article, or the Virginia
retail sales or use tax, or
any sales or use tax imposed
by any county or city under
§
58.1-605
or
58.1-606.
"Import" and "imported" are
words applicable to tangible
personal property imported
into the Commonwealth from
other states as well as from
foreign countries, and
"export" and "exported" are
words applicable to tangible
personal property exported
from the Commonwealth to
other states as well as to
foreign countries.
"In this Commonwealth" or
"in the Commonwealth" means
within the limits of the
Commonwealth of Virginia and
includes all territory
within these limits 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 semiconductor
products, equipment, or
processes, includes the
handling and storage of raw
materials at a plant site,
and continues to the point
that the product is packaged
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 as part of the
integrated process if its
use contributes, before,
during, or after production,
to higher product quality,
production yields, or
process efficiencies. Except
as otherwise provided by
law, such term shall not
mean general maintenance or
administration.
"Internet" means
collectively, the myriad of
computer and
telecommunications
facilities, which comprise
the interconnected
world-wide network of
computer networks.
"Internet service" means a
service that enables users
to access proprietary and
other content, information
electronic mail, and the
Internet as part of a
package of services sold to
end-user subscribers.
"Lease or rental" means the
leasing or renting of
tangible personal property
and the possession or use
thereof by the lessee or
renter for a consideration,
without transfer of the
title to such property.
"Manufacturing, processing,
refining, or conversion"
includes the production line
of the plant starting with
the handling and storage of
raw materials at the plant
site and continuing through
the last step of production
where the product is
finished or completed for
sale and conveyed to a
warehouse at the production
site, and also includes
equipment and supplies used
for production line testing
and quality control. The
term "manufacturing" shall
also include the necessary
ancillary activities of
newspaper and magazine
printing when such
activities are performed by
the publisher of any
newspaper or magazine for
sale daily or regularly at
average intervals not
exceeding three months.
The determination whether
any manufacturing, mining,
processing, refining or
conversion activity is
industrial in nature shall
be made without regard to
plant size, existence or
size of finished product
inventory, degree of
mechanization, amount of
capital investment, number
of employees or other
factors relating principally
to the size of the business.
Further, "industrial in
nature" shall include, but
not be limited to, those
businesses classified in
codes 10 through 14 and 20
through 39 published in the
Standard Industrial
Classification Manual for
1972 and any supplements
issued thereafter.
"Modular building" means,
but shall not be limited to,
single and multifamily
houses, apartment units,
commercial buildings, and
permanent additions thereof,
comprised of one or more
sections that are intended
to become real property,
primarily constructed at a
location other than the
permanent site, built to
comply with the Virginia
Industrialized Building
Safety Law (§
36-70
et seq.) as regulated by the
Virginia Department of
Housing and Community
Development, and shipped
with most permanent
components in place to the
site of final assembly. For
purposes of this chapter, a
modular building shall not
include a mobile office as
defined in §
58.1-2401
or any manufactured building
subject to and certified
under the provisions of the
National Manufactured
Housing Construction and
Safety Standards Act of 1974
(42 U.S.C. § 5401 et seq.).
"Modular building
manufacturer" means a person
or corporation who owns or
operates a manufacturing
facility and is engaged in
the fabrication,
construction and assembling
of building supplies and
materials into modular
buildings, as defined in
this section, at a location
other than at the site where
the modular building will be
assembled on the permanent
foundation and may or may
not be engaged in the
process of affixing the
modules to the foundation at
the permanent site.
"Modular building retailer"
means any person who
purchases or acquires a
modular building from a
modular building
manufacturer, or from
another person, for
subsequent sale to a
customer residing within or
outside of the Commonwealth,
with or without installation
of the modular building to
the foundation 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 Tax
Act (§
58.1-2400
et seq.) and upon the sale
of which all applicable
motor vehicle sales and use
taxes have been paid.
"Occasional sale" means a
sale of tangible personal
property not held or used by
a seller in the course of an
activity for which he is
required to hold a
certificate of registration,
including the sale or
exchange of all or
substantially all the assets
of any business and the
reorganization or
liquidation of any business,
provided such sale or
exchange is not one of a
series of sales and
exchanges sufficient in
number, scope and character
to constitute an activity
requiring the holding of a
certificate of registration.
"Open video system" means an
open video system authorized
pursuant to 47 U.S.C. § 573
and, for purposes of this
chapter only, shall also
include Internet service
regardless of whether the
provider of such service is
also a telephone 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 a unit, body
politic or political
subdivision, whether public
or private, or quasi-public,
and the plural of such term
shall mean the same as the
singular.
"Prewritten program" means a
computer program that is
prepared, held or existing
for general or repeated sale
or lease, including a
computer program developed
for in-house use and
subsequently sold or leased
to unrelated third parties.
"Retail sale" or a "sale at
retail" means a sale to any
person for any purpose other
than for resale in the form
of tangible personal
property or services taxable
under this chapter, and
shall include any such
transaction as the Tax
Commissioner upon
investigation finds to be in
lieu of a sale. All sales
for resale must be made in
strict compliance with
regulations applicable to
this chapter. Any dealer
making a sale for resale
which is not in strict
compliance with such
regulations shall be
personally liable for
payment of the tax.
The terms "retail sale" and
a "sale at retail" shall
specifically include the
following: (i) the sale or
charges for any room or
rooms, lodgings, or
accommodations furnished to
transients for less than 90
continuous days by any
hotel, motel, inn, tourist
camp, tourist cabin, camping
grounds, club, or any other
place in which rooms,
lodging, space, or
accommodations are regularly
furnished to transients for
a consideration; (ii) sales
of tangible personal
property to persons for
resale when because of the
operation of the business,
or its very nature, or the
lack of a place of business
in which to display a
certificate of registration,
or the lack of a place of
business in which to keep
records, or the lack of
adequate records, or because
such persons are minors or
transients, or because such
persons are engaged in
essentially service
businesses, or for any other
reason there is likelihood
that the Commonwealth will
lose tax funds due to the
difficulty of policing such
business operations; and
(iii) the separately stated
charge made for automotive
refinish repair materials
that are permanently applied
to or affixed to a motor
vehicle during its repair.
The Tax Commissioner is
authorized to promulgate
regulations requiring
vendors of or sellers to
such persons to collect the
tax imposed by this chapter
on the cost price of such
tangible personal property
to such persons and may
refuse to issue certificates
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 that permit the
use of, or constitute an
interest in, real estate,
however created or sold and
whether registered with the
Commonwealth or not.
Further, a purchaser of a
right or license which
entitles the purchaser to
use the amenities and
facilities of a specific
real estate project on an
ongoing basis 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 transfer of title
to tangible personal
property after its use as
tools, tooling, machinery or
equipment, including dies,
molds, and patterns, if (i)
at the time of purchase, the
purchaser is obligated,
under the terms of a written
contract, to make the
transfer and (ii) the
transfer is made for the
same or a greater
consideration to the person
for whom the purchaser
manufactures goods.
"Retailer" means every
person engaged in the
business of making sales at
retail, or for distribution,
use, consumption, or storage
to be used or consumed 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 any means whatsoever,
of tangible personal
property and any rendition
of a taxable service for a
consideration, and includes
the fabrication of tangible
personal property for
consumers who furnish,
either directly or
indirectly, the materials
used in fabrication, and the
furnishing, preparing, or
serving for a consideration
of any tangible personal
property consumed on the
premises of the person
furnishing, preparing, or
serving such tangible
personal property. A
transaction whereby the
possession of property is
transferred but the seller
retains title as security
for the payment of the price
shall be deemed a sale.
"Sales price" means the
total amount for which
tangible personal property
or 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 amount for
which credit is given to the
purchaser, consumer, or
lessee by the dealer,
without any deduction
therefrom on account of the
cost of the property sold,
the cost of materials used,
labor or service costs,
losses or any other expenses
whatsoever. "Sales price"
shall not include (i) any
cash discount allowed and
taken; (ii) finance charges,
carrying charges, service
charges or interest from
credit extended on sales of
tangible personal property
under conditional sale
contracts or other
conditional contracts
providing for deferred
payments of the purchase
price; (iii) separately
stated local property taxes
collected; (iv) that portion
of the amount paid by 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 gratuity or
service charge added by a
restaurant to the price of a
meal, but only to the 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 a series of trades as
a credit or part payment on
the sale of new or used
articles, the tax levied by
this chapter shall be paid
on the net difference
between the sales price of
the new or used articles and
the credit for the used
articles.
"Semiconductor cleanrooms"
means the integrated
systems, fixtures, piping,
partitions, flooring,
lighting, equipment, and all
other property used to
reduce contamination or to
control airflow,
temperature, humidity,
vibration, or other
environmental conditions
required for the integrated
process of semiconductor
manufacturing.
"Semiconductor equipment"
means (i) machinery or tools
or repair parts or
replacements 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 the
equipment and settings
thereof; and (iv) equipment
and supplies used for
quality control testing of
product, materials,
equipment, or processes; or
the measurement of equipment
performance or production
parameters regardless of
where or when the quality
control, testing, or
measuring activity takes
place, how the activity
affects the operation of
equipment, or whether the
equipment and supplies come
into contact with the
product.
"Storage" means any keeping
or retention of tangible
personal property for use,
consumption or distribution
in the Commonwealth, or for
any purpose other 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 to the 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 upon
their initial sale, which
shall be exempt from all
other state and local
utility taxes, and (ii)
manufactured signs.
"Use"
means the exercise of any
right or power over tangible
personal property incident
to the ownership thereof,
except that it does not
include the sale at retail
of that property in the
regular course of business.
The term does not include
the exercise of any right or
power, including use,
distribution, or storage,
over any tangible personal
property sold to a
nonresident donor for
delivery outside of the
Commonwealth to a
nonresident recipient
pursuant to an order placed
by the donor from outside
the Commonwealth via mail or
telephone. The term does not
include any sale determined
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 integral part
of the production of a
product, including all steps
of an integrated
manufacturing or mining
process, but not including
ancillary activities such as
general maintenance or
administration. When used in
relation to mining, it shall
refer to the activities
specified above, and in
addition, any reclamation
activity of the land
previously mined by the
mining company required by
state or federal law.
"Video programmer" means a
person or entity that
provides video programming
to end-user subscribers.
"Video programming" means
video and/or information
programming provided by or
generally considered
comparable to programming
provided by a cable operator
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.)