[Adopted 8-16-2010]
Pursuant to the authority set forth in the Charter for the Town
of Elkton in Chapter 2, § 2.1, and the Code of Virginia,
§§ 58.1-3830 and 58.1-3840, 1950, as amended, there
is hereby imposed an excise tax on the sale of cigarettes to provide
revenue for the general fund of the Town as set forth hereafter in
this article.
Except where the context clearly indicates a different meaning,
the following words and phrases shall, for purposes of this article,
have the meanings respectively ascribed to them in this section:
Any roll of any size or shape for smoking, whether filtered
or unfiltered, with or without a mouthpiece, made wholly or partly
of cut, shredded or crimped tobacco or other plant or substitute for
tobacco, whether flavored, adulterated or mixed with another ingredient,
if the wrapper or cover is made of any material other than leaf tobacco
or homogenized leaf tobacco, regardless of whether the roll is labeled
or sold as a cigarette or by any other name.
Every manufacturer, manufacturer's representative, self-wholesaler,
wholesaler, public warehouser or other person who supplies a seller
within the Town with cigarettes.
Any container, regardless of the material used in its construction,
in which separate cigarettes are placed. Packages are those containers
of cigarettes from which individual cigarettes are ordinarily taken
when they are consumed by their ultimate user.
Any individual, firm, unincorporated association, company,
corporation, L.L.C., joint stock company, group, agency, syndicate,
trust or trustee, receiver, fiduciary, partnership and conservator.
The word "person" as applied to a partnership, unincorporated association
or other joint venture means the partners or members thereof, and
as applied to a corporation shall include all the officers.
Every act or transaction, regardless of the method or means
employed, including the use of vending machines and other mechanical
devices, whereby title to any cigarettes shall be transferred from
the seller to any other person within the Town.
Every person who transfers title to any cigarettes, or in
whose place of business title to any cigarettes is transferred, within
the Town, for any purpose other than resale.
A small gummed piece of paper or decal used to evidence payment
of the tax authorized under this article and to be affixed, manually
or by machine, to every package of cigarettes sold at retail within
the Town.
The Town of Elkton, Virginia.
The Town Manager of the Town of Elkton, Virginia.
The Treasurer of the Town of Elkton, Virginia.
[Amended 6-18-2012[1]]
In addition to all other taxes of every kind now or hereafter
imposed by law, there is hereby levied and imposed by the Town an
excise tax on the sale of cigarettes of $0.20 on each package containing
20 cigarettes or less sold within the Town, on or after October 1,
2010. The tax shall be paid by the seller, if not previously paid,
and collected in the manner and at the time provided for in this article,
provided that the tax shall be paid but once. The tax shall not apply
to free distribution of sample cigarettes in packages containing five
or fewer cigarettes.
[1]
Editor's Note: This ordinance provided an effective date of
7-1-2012.
Payment of the tax imposed by this article shall be evidenced
by the use of a stamp, purchased and affixed by the dealer or seller
to every package of cigarettes to be sold within the Town. The tax
shall be paid at the time the stamps are purchased from the Treasurer.
Every dealer and seller shall have the right to buy stamps and to
affix the same to packages of cigarettes as provided in this article.
The Treasurer shall make available for sale stamps of such denominations
and in such quantities as may be necessary for the payment of the
taxes imposed by this article.
A.
Every dealer in cigarettes has a duty to purchase stamps necessary
to pay the tax levied and imposed by this article and to affix or
cause to be affixed stamps of the prescribed monetary value to each
package of cigarettes prior to delivering or furnishing such cigarettes
to any seller.
B.
Any dealer found to have sold, used, stored, received, purchased, or possessed more than 60 packages of cigarettes that is unable to furnish evidence of sufficient tax payments and stamp purchases to cover the cigarettes is presumed to be in violation of this article unless the delivery memorandum described in Subsection C of § 148-68 has been timely filed.
A.
Every seller is required to examine each package of cigarettes, prior
to exposing the same for sale, and ascertain whether each package
has the proper stamps affixed or imprinted as required by this article.
If unstamped or improperly stamped packages of cigarettes are discovered,
the seller shall either:
(1)
Purchase and affix stamps covering the tax imposed by this article
to such packages of cigarettes; or
(2)
Immediately notify the dealer that provided the cigarettes and, upon
such notification, the dealer shall either affix the stamps necessary
or replace the packages with properly stamped packages.
B.
Any seller found to possess, prior to being offered for sale, more than 60 packages of cigarettes without stamps affixed that is not in the process of affixing such stamps or taking the action required under Subsection A of § 148-68 shall be presumed to be in violation of this article. If such person received the cigarettes within the preceding 48 hours, and has not offered them for sale, the presumption shall not apply.
C.
In the event any seller elects to purchase and affix stamps before
offering cigarettes for sale, the dealer delivering and furnishing
such cigarettes shall not also be required to purchase and affix stamps;
provided that the dealer files a copy of the delivery memorandum with
the Treasurer on the day following delivery that provides the name
and address of the seller and the quantity and type of cigarettes.
A.
Every dealer may be required by the Treasurer to report monthly to
the Treasurer the following information:
(2)
The quantity of stamps on hand, both affixed and unaffixed on the
first day of the previous calendar month and the quantity of stamps
or stamped cigarettes received during that period;
(3)
Copies of any cigarette tax reports submitted to the Virginia Department
of Taxation;
(4)
Such further information as the Treasurer may require for the proper
administration and enforcement of this article for the determination
of the exact number of cigarettes in the possession of each dealer
or user.
B.
All information and reporting required under this section shall be
filed with the Treasurer between the first and 20th day after the
close of each calendar month.
C.
Upon request by the Treasurer, any seller shall provide in writing
the name and address of the dealer who provides the seller with cigarettes.
D.
Every dealer and seller in the Town shall maintain and keep complete
records of the number of packages of cigarettes delivered or sold
for three years and make all records available for examination by
the Treasurer, upon demand, at any reasonable time.
A.
When any person liable for the tax imposed by this article is unable
to furnish evidence of sufficient tax payments and stamp purchases
to cover cigarettes which were sold, used, stored, received, purchased
or possessed by him, a presumption arises that such cigarettes were
received, sold, used, stored, purchased or possessed without the proper
tax having been paid. The Treasurer shall assess the tax as due and
unpaid.
B.
(2)
The cigarettes are in transit or are in the possession of distributors
or public warehouses that have filed notice with the Treasurer indicating
that the cigarettes are temporarily within the Town and will be sent
to consignees or purchasers outside the Town in the normal course
of business.
C.
Any person liable for the tax shall be notified by certified mail
of the tax, penalty and interest assessed, all of which shall be due
within 10 days after notice has been received.
A.
Stamps shall be placed upon each package of cigarettes in a manner
readily visible to the purchaser and shall be affixed so that their
removal will require water or steam.
B.
Any vending machine located within the Town containing cigarettes
upon which the stamp has not been affixed or containing cigarettes
placed in a manner that does not allow visual inspection for the stamp
shall be presumed to contain untaxed cigarettes in violation of this
article. If a vending machine does not allow for visual inspection
of the stamp, the Treasurer is authorized to direct the owner to open
the machine to determine whether the cigarettes are stamped.
C.
Any cigarettes, coin-operated vending machines, counterfeit stamps,
or other property found in violation of this article, other than motor
vehicles, shall be declared contraband goods and may be seized by
the Treasurer. In addition to any tax due, the dealer or other person
liable for the tax possessing such untaxed cigarettes shall be subject
to the civil and criminal penalties provided under this article.
D.
In lieu of seizure, the Treasurer may seal vending machines to prevent
the continued illegal sale or removal of such cigarettes. The removal
of such seal from a vending machine by any unauthorized person shall
be a violation of this article. Nothing in this article prevents the
seizure of any vending machine after it is sealed.
E.
All cigarette vending machines shall be plainly marked with the name,
address and telephone number of the owner.
F.
Any seized cigarettes, vending machines or other property used in
the furtherance of any illegal evasion of the tax may be disposed
of by sale or other method deemed appropriate by the Treasurer after
all administrative appeals have been exhausted by the aggrieved party.
G.
No credit from any sale of cigarettes, vending machines or other
seized property shall be allowed toward any tax, penalties or interest
assessed.
A.
Notice of sealing or seizure shall be sent to any party having a
known property interest therein by certified mail within 24 hours
of the sealing or seizure. When such parties are not known, notice
shall be posted to the door or wall of the room or building that contained
the sealed or seized property. All notices shall include procedures
for appeal and the defenses available under this section.
B.
Any person assessed by the Treasurer with a cigarette tax, penalty,
and interest or any person whose cigarettes, vending machines and
other property have been sealed or seized may appeal the action to
the Town Manager. Appeals must be made in writing and received within
10 days of the receipt of notice by the aggrieved party. The appeal
must state the reasons why the action taken was in error and may request
the correction of an assessment and the return of sealed or seized
property. Within five days after receipt of the appeal, the Town Manager
shall notify the aggrieved party by certified mail of a date and time
for the informal presentation of evidence at a hearing to be held
within 15 days of the date notification is mailed. A request for a
hearing will be denied if the assessed tax, penalties and interest
have not been paid or if the request is untimely. The Town Manager
shall notify the aggrieved party by certified mail within five days
of the hearing stating whether the appeal has been granted or denied.
The aggrieved party may appeal the decision of the Town Manager to
the appropriate court within 30 days.
C.
An appeal may be granted if the aggrieved party shows by a preponderance
of the evidence that:
(1)
The illegal sale or use of seized cigarettes, vending machines, or
other property was not intentional;
(2)
The seized cigarettes, vending machines, or other property was in
the possession of a person other than the aggrieved without consent
at the time of the seizure or sealing; or
(3)
The aggrieved was authorized to possess the untaxed cigarettes.
D.
When an appeal is granted, relief shall include a refund of the tax
erroneously assessed with any interest and penalties paid thereon
and the return of any cigarettes, vending machines or other property
sealed or seized.
A.
Any person that acquires stamps from the Treasurer is entitled to
a refund of the face value of the stamps if the person returns the
stamps to the Treasurer with an affidavit stating that the stamps
were acquired by such person but not used because:
B.
Any refund for unused or damaged stamps may be made on vouchers approved
by the Treasurer. The refunds shall be charged against the sums collected
for the sale of stamps. Payment to the person requesting the refund
shall be made within 30 days of the request.
The Treasurer is authorized to examine the books, records, invoices,
papers and all cigarettes in and upon any premises where placed, stored,
sold, offered for sale, or displayed for sale. The Treasurer is authorized
to delegate any of the powers and duties set out in this article to
one or more deputies or assistants, except as may be prohibited by
law.
A.
Any person violating this article shall be guilty of a Class I misdemeanor
and shall be subject to the maximum fine and prison term allowed by
law at the time of the offense. Conviction and punishment for such
violation shall not relieve any person from the payment of any tax,
interest or penalty imposed by this article.
B.
Any person that fails to pay any cigarette tax when due shall pay
a late payment penalty in the amount of 10% of the unpaid tax per
month.
C.
Any person that fails to pay any cigarette tax when due shall pay
interest on the amount overdue at the rate of 3/4 of 1% per month.
D.
In addition, any person that performs any fraudulent act or fails
to perform any act for the purpose of evading the tax imposed by this
article shall pay a penalty in the amount of 50% of the overdue or
unpaid tax.
It shall be a violation of this article for any person:
A.
To perform any act or fail to perform any act for the purpose of
evading any tax imposed by this article or for any dealer or seller,
with intent to violate any provision of this article, to fail or refuse
to perform any of the duties imposed upon him under the provisions
of this article, or to fail or refuse to obey any lawful order issued
under this article.
B.
To falsely or fraudulently make, forge, alter or counterfeit any
stamp, invoice or reports, to procure or cause to be made, forged,
altered or counterfeited any such stamp, or to knowingly and willfully
alter, publish, pass or tender as true any false, altered, forged
or counterfeited stamp or stamps.
C.
To sell, offer for sale, authorize or approve the sale of any cigarette
upon which the Town stamp has not been affixed.
D.
To reuse or refill any package for which the tax has been paid with
cigarettes for which the tax has not been paid.
E.
To remove from any package any stamp with intent to reuse or cause
the same to be reused.
F.
To buy, sell, offer for sale or give away any used, removed, altered
or restored stamps to any person.
G.
To reuse any stamp which has theretofore been used for evidence of
the payment of any tax prescribed by this article.
H.
To sell or offer to sell any stamp provided for herein, except as
to the Treasurer.
I.
To possess, store, use, authorize or approve the possession, storage
or use of cigarettes in quantities of more than 60 packages upon which
stamps have not been affixed unless:
J.
To transport, authorize or approve the transportation of any cigarettes,
in quantities of more than 60 packages, into or within the Town upon
which the stamp has not been affixed, if they are:
(1)
Not accompanied by a bill of lading or other document indicating
the true name and address of the consignor or seller and the consignee
or purchaser and the brands and quantity of cigarettes transported;
or
(2)
Accompanied by a bill of lading or other document which is false
or fraudulent in whole or part.
