(a) As used in this section:
(1) “Professional athlete” means an athlete who performs services in a professional athletic event for compensation.
(2) “Professional entertainer” means a person who performs services in the professional performing arts for compensation on a per-event basis.
(3) “Public figure” means a person of prominence who performs services at discrete events, such as speeches, public appearances, or similar events, for compensation on a per-event basis.
(b) Compensation subject to withholding pursuant to §11-21-1 et seq. of this code, without regard to any withholding tax exception set forth in §11-21-71a of this code, paid to a nonresident individual is exempt from the tax levied under §11-21-1 et seq. of this code if all of the following conditions apply:
(1) The compensation is paid for employment duties performed by the individual in this state on thirty or fewer days in the calendar year;
(2) The individual performed employment duties in more than one state during the calendar year;
(3) The compensation is not paid for employment duties performed by the individual in the individual’s capacity as a professional athlete, professional entertainer, or public figure; and
(4) The nonresident individual’s state of residence:
(A) Provides a substantially similar exclusion; or
(B) Does not impose an individual income tax; or
(C) The individual’s income is exempt from taxation by this state under the United States Constitution or federal statute.
(c) Except as otherwise provided in this article, an employer is not required to withhold taxes under §11-21-1 et seq. from compensation that is paid to an employee described in subsection (b) of this section: Provided, That if, during the calendar year, the number of days an employee spends performing employment duties in this state exceeds the thirty-day threshold described in subsection (b) of this section, an employer shall withhold and remit tax to this state for every day in that calendar year, including the first thirty days, on which the employee performs employment duties in this state.
(d) Special rule for determining liability — For purposes of determining compensation paid and subject to withholding under this section:
(1) If an employer maintains a time and attendance system that tracks where employees perform services on a daily basis, then data from the time and attendance system shall be used. For purposes of this section, time and attendance system means a system:
(A) In which the employee is required, on a contemporaneous basis, to record the work location for every day worked outside of the State where the employment duties are primarily performed; and
(B) That is designed to allow the employer to allocate the employee’s wages for income tax purposes among all states in which the employee performs services.
(2) In all other cases, the employer shall obtain a written statement from the employee of the number of days reasonably expected to be spent performing services in this State during the taxable year. Absent the employer’s actual knowledge of fraud or gross negligence by the employee in making the determination or collusion between the employer and the employee to evade tax, the certification so made by the employee and maintained in the employer’s books and records shall be prima facie evidence and constitute a rebuttable presumption of the number of days spent performing services in this State.
(e) For purposes of this section, an employee shall be considered present and performing employment duties within this state for a day if the employee performs more of the employee’s employment duties in this state than in any other state during that day. Any portion of the day during which the employee is in transit shall not be considered in determining the location of an employee’s performance of employment duties.
(f) The provisions of this section shall be effective on January 1, 2022.
§11-21-32. West Virginia source income of nonresident individual.
(a) General. -- The West Virginia source income of a nonresident individual shall be the sum of the net amount of income, gain, loss and deduction entering into his or her federal adjusted gross income, as defined in the laws of the United States and section nine of this article, for the taxable year, derived from or connected with West Virginia sources, including:
(1) His or her distributive share of partnership income, gain, loss and deduction, determined under section thirty-seven; and
(2) His or her pro rata share of S corporation income, loss and deduction, determined under section thirty-seven of this article, increased by reductions for taxes described in paragraphs (2) and (3), subsection (f), section 1366 of the Internal Revenue Code; and
(3) His or her share of estate or trust income, gain, loss and deduction, determined under section thirty-nine of this article.
(b) Income and deductions from West Virginia sources.
(1) Items of income, gain, loss and deduction derived from or connected with West Virginia sources shall be those items attributable to:
(A) The ownership of any interest in real or tangible personal property in this state; or
(B) A business, trade, profession or occupation carried on in this state; or
(C) In the case of a shareholder of an S corporation, the ownership of shares issued by such corporation, to the extent determined under section thirty-seven; or
(D) Prizes awarded under article twenty-two, chapter twenty-nine of this code by the West Virginia State Lottery Commission.
(2) Income from intangible personal property, including annuities, dividends, interest, and gains from the disposition of intangible personal property, shall constitute income derived from West Virginia sources only to the extent that such income is from property employed in a business, trade, profession or occupation carried on in this state.
(3) Deductions with respect to capital losses and net operating losses shall be based solely on income, gain, loss and deduction derived from or connected with West Virginia sources, under regulations of the Tax Commissioner, but otherwise shall be determined in the same manner as the corresponding federal deductions.
(4) The deduction allowed by section 215 of the Internal Revenue Code, relating to alimony, shall not constitute a deduction derived from West Virginia sources.
(c) Income and deductions partly from West Virginia sources. -- If a business, trade, profession or occupation is carried on partly within and partly without this state, as determined under regulations of the Tax Commissioner, the items of income, gain, loss and deduction derived from or connected with West Virginia sources shall be determined by apportionment and allocation under such regulations.
(d) Purchase and sale for own account. -- A nonresident, other than a dealer holding property for sale to customers in the ordinary course of his or her trade or business, shall not be deemed to carry on a business, trade, profession or occupation in this state solely by reason of the purchase and sale of property for his or her own account.
(e) Husband and wife. -- If a husband and wife determine their federal income tax on a joint return but determine their West Virginia income taxes separately, they shall determine their West Virginia source incomes separately as if their federal adjusted gross incomes had been determined separately.
(f) Effective date. -- This section as amended and reenacted in the year 1992 shall apply to taxable years beginning after December 31, 1991. As to prior taxable years, the provisions of this section and of section thirty-one of this article, as then in effect, are fully and completely preserved.