West Virginia economic nexus threshold

Affiliate nexus

West Virginia maintains three overlapping non-economic nexus frameworks that can independently establish a collection obligation for remote sellers.

The first is affiliate and unitary business nexus, codified under W. Va. Code § 11-15A-6a, effective January 1, 2014. Under this framework, an out-of-state seller has nexus in West Virginia if it is related to, or part of a unitary business with, a West Virginia entity that (a) maintains a place of business in West Virginia, (b) performs services in West Virginia for the seller's customers, or (c) solicits business in West Virginia on the seller's behalf. Affiliated is defined as more than 5% direct or indirect ownership between the out-of-state seller and the in-state entity.

The second framework is click-through and solicitor nexus. A rebuttable presumption of nexus arises when a seller has a commission- or fee-based agreement with a West Virginia resident who refers customers to the seller via a website hyperlink or other means. This presumption can be rebutted with evidence that the in-state resident did not engage in activities that would create nexus under applicable standards.

Physical nexus

Under W. Va. Code § 11-15A-6, physical nexus is established when a seller maintains, directly or through a subsidiary, any office, distribution house, sales house, warehouse, or other place of business in the state. The presence of any agent, representative, employee, salesperson, canvasser, or independent contractor operating in West Virginia also creates physical nexus, regardless of whether that individual's role is directly tied to sales activity. Holding inventory in a third-party warehouse in West Virginia, including fulfillment by marketplace arrangements, independently establishes physical nexus. Any employee located in the state, even one whose responsibilities are unrelated to sales, is sufficient to create a physical nexus obligation.

Trailing nexus

The SST West Virginia Taxability Matrix provides that once the economic nexus threshold is met, a remote seller must continue to collect and remit sales tax regardless of whether sales subsequently fall below the threshold. No specific statutory trailing period has been published. The collection obligation persists until the seller affirmatively deregisters with the West Virginia Tax Division.