[HISTORY: Adopted by the City Council of
the City of Lexington as indicated in article histories. Amendments
noted where applicable.]
[Adopted 12-12-1974 (Ch. 12, Art. IV of the 1970 Code)]
Each person holding a mixed beverage restaurant
and caterer's license issued by the Virginia Alcoholic Beverage Control
Board shall obtain from the Commissioner of the Revenue of the City
a license to sell mixed beverages in the City, and the tax upon the
issuance of such license shall be as follows:
A.Â
Persons operating restaurants, including restaurants
located on premises of and operated by hotels and motels:
(1)Â
For each restaurant with a seating capacity at tables
for 50 to 100 persons: $100 per annum;
(2)Â
For each restaurant with a seating capacity at tables
for more than 100 but not more than 150 persons: $175 per annum;
(3)Â
For each restaurant with a seating capacity at tables
for more than 150 persons: $250 per annum;
(4)Â
For each caterer: $250 per annum; and
(5)Â
Mixed beverage special events license: $10 for each
day of each event.
B.Â
A private, nonprofit club operating a restaurant located
on the premises of such club: $175 per annum.
C.Â
No license tax shall be either charged or collected
for the privilege of selling and serving mixed beverages in passenger
airplanes, dining rooms and other designated rooms of ships and in
dining cars, buffet cars and club cars of trains and in rooms designated
by the board of establishments of air carriers of passengers at airports.
The definitions as set forth in § 4-2
of the Code of Virginia,[1] as amended, are adopted as a part of this section, and
the term "mixed beverage" or "mixed alcoholic beverage" shall mean
a drink composed in whole or in part of alcoholic beverages having
an alcoholic content of more than 14% by volume and served to an individual
in a quantity less than the quantity contained in a closed package
for consumption on premises licensed under this article.
[1]
Editor's Note: See now Code of Virginia, § 4.1-100.
All licenses granted or issued pursuant to the
provisions of this article shall expire on June 30 next following
the date on which they were granted or issued. Any license granted
or issued by the Virginia Alcoholic Beverage Control Board which is
extended by such Board shall automatically extend for a like period
the City license issued to the same person.
A.Â
The tax on each license issued pursuant to this article
shall be subject to proration to the following extent: if the license
is issued in the second quarter of the license year, the tax shall
be decreased by 1/4; if issued in the third quarter of the license
year, the tax shall be decreased by 1/2; and if issued in the fourth
quarter of any year, the tax shall be decreased by 3/4.
B.Â
Nothing in this article shall be construed as exempting
any licensee from any other City tax whatsoever.
The City Council may correct erroneous assessments
made against any person and make refunds of any amounts collected
pursuant to erroneous assessments or collected as taxes on licenses
which are subsequently refused or application therefor withdrawn.
No refunds shall be made of any such amount, however, unless made
within one year from the date of collection on the same.
Revocation or suspension of any license issued
by the Virginia Alcoholic Beverage Control Board shall constitute
an automatic revocation or suspension of the license issued to the
same person under this article. No licensee under this article shall
be entitled to a refund or abatement of any tax paid under this article
where there has been a revocation or a suspension of the license issued
by the Virginia Alcoholic Beverage Control Board.
[Adopted by Ord. No. 96-10 (Ch. 12, Art. I of the 1970 Code)]
A.Â
Except as may be otherwise provided by the laws of
the Commonwealth of Virginia, and notwithstanding any other current
ordinances or resolutions enacted by this Council, whether or not
compiled in the Code of the City of Lexington, to the extent of any
conflict, the following provisions shall be applicable to the levy,
assessment, and collection of licenses required and taxes imposed
on businesses, trades, professions and callings and upon the persons,
firms and corporations engaged therein within this locality.
B.Â
It is the declared intent of the City to avoid either
discrimination or protective license taxation as it affects any business,
trade or occupation, regardless of location or type of transaction.
[Amended by Ord. No. 05-9]
For the purposes of this article, unless otherwise
required by the context, the following terms shall have the meanings
indicated:
One or more chains of includable corporations
connected through stock ownership with a common parent corporation
which is an includable corporation if:
Stock possessing at least 80% of the voting
power of all classes of stock and at least 80% of each class of the
nonvoting stock of each of the includable corporations, except the
common parent corporation, is owned directly by one or more of the
other includable corporations; and
The common parent corporation directly owns
stock possessing at least 80% of the voting power of all classes of
stock and at least 80% of each class of the nonvoting stock of at
least one of the other includable corporations. As used in this subsection,
the term "stock" does not include nonvoting stock which is limited
and preferred as to dividends. The term "includable corporation" means
any corporation within the affiliated group irrespective of the state
or country of its incorporation, and the term "receipts" includes
gross receipts and gross income.
Two or more corporations if five or fewer persons
who are individuals, estates or trusts own stock possessing:
At least 80% of the total combined voting power
of all classes of stock entitled to vote or at least 80% of the total
value of shares of all classes of the stock of each corporation; and
More than 50% of the total combined voting power
of all classes of stock entitled to vote or more than 50% of the total
value of shares of all classes of stock of each corporation, taking
into account the stock ownership of each such person only to the extent
such stock ownership is identical with respect to each such corporation.
When one or more of the includable corporations,
including the common parent corporation, is a nonstock corporation,
the term "stock" as used in this definition shall refer to the nonstock
corporation membership or membership voting rights, as is appropriate
to the context.
The product known as ethyl or grain alcohol obtained by distillation
of any fermented liquor, rectified either once or more often, whatever
may be the origin thereof, and shall include synthetic ethyl alcohol,
but shall not include methyl alcohol and alcohol completely denatured
in accordance with formulas approved by the government of the United
States. The word "alcohol" when used in the phrase "more than three
and two-tenths per centum of alcohol by weight" shall mean all alcohol
whether obtained by distillation, fermentation or otherwise.
Includes the four varieties of liquor defined herein as alcohol,
spirits, wine, and beer, and any one or more of such varieties, and
every liquid or solid, patented or not, containing alcohol, spirits,
wine or beer and capable of being consumed by a human being. Any liquid
or solid containing more than one of the four varieties above defined
shall be considered as belonging to that variety which has the higher
percentage of alcohol, however obtained.
A determination as to the proper rate of tax, the measure
to which the tax rate is applied, and ultimately the amount of tax,
including additional or omitted tax, that is due. An assessment shall
include a written assessment made pursuant to notice by the assessing
official or a self-assessment made by a taxpayer upon the filing of
a return or otherwise not pursuant to notice. Assessments shall be
deemed made by an assessing official when a written notice of assessment
is delivered to the taxpayer by the assessing official or an employee
of the assessing official or mailed to the taxpayer at his last known
address. Self-assessments shall be deemed made when a return is filed
or, if no return is required, when the tax is paid. A return filed
or tax paid before the last day prescribed by ordinance for the filing
or payment thereof shall be deemed to be filed or paid on the last
day specified for the filing of a return or the payment of tax, as
the case may be.
The Commissioner of the Revenue of this jurisdiction.
The calendar year preceding the license year, except for
contractors subject to the provisions of § 58.1-3715 of
the Code of Virginia. Whenever any person begins a business, trade
or occupation on or after January 1 of the license year, so much of
the license tax imposed by this article as is based on gross receipts
shall be measured by the applicant's estimate of gross receipts that
will be made and received from the commencement of the business, trade
or occupation to the end of the license year.
Any beverage obtained by the alcoholic fermentation of an
infusion or decoction of barley, malt and hops or of any similar products
in drinkable water and containing, unless otherwise expressly provided,
more than three and two-tenths per centum of alcohol by weight. This
definition shall include ale, porter and stout.
An agent of a buyer or a seller who buys or sells stocks,
bonds, commodities, or services, usually on a commission basis.
A course of dealing which requires the time, attention and
labor of the person so engaged for the purpose of earning a livelihood
or profit. It implies a continuous and regular course of dealing,
rather than an irregular or isolated transaction. A person may be
engaged in more than one business. The following acts shall create
a rebuttable presumption that a person is engaged in a business: advertising
or otherwise holding oneself out to the public as being engaged in
a particular business or filing tax returns, schedules and documents
that are required only of persons engaged in a trade or business.
An aggregation of shows, amusements, concessions and riding
devices or any of them operated together on one lot or street or on
contiguous lots or streets, moving from place to place, whether the
same are owned or actually operated by separate persons or not. The
term includes, but is not limited to, sideshows, dog and pony shows,
trained animal shows, circuses and menageries.
Any person or persons selling, leasing, renting or otherwise
furnishing or providing a coin-operated amusement machine or device
operated on the coin-in-the-slot principle; provided, however, that
the term "operator" shall not include a person owning fewer than three
coin machines and operating such machines on property owned or leased
by such person, firm or corporation. An amusement machine is any coin-operated
machine other than weighing machines, automatic baggage or parcel
checking machines or receptacles, machines vending goods, wares, merchandise
or stamps or which provide service only, viewing or photomat machines,
or devices affording rides to children or for the delivery of newspapers.
Staples such as wool, cotton, etc., which are traded on a
commodity exchange and on which there is trading in futures.
A general contractor or subcontractor. Every contractor,
whether a general contractor or a subcontractor, is a contractor for
the purposes of local license taxation. The imposition of a license
tax on the gross receipts of a general contractor and also a subcontractor
is not double taxation. Each is engaged in business in his own right
and licensable accordingly. "Contractor" shall have the meaning prescribed
in § 58.1-3714D of the Code of Virginia, as amended, whether
such work is done or offered to be done by day labor, general contract
or subcontract.
Any person engaged in the business of buying and selling
securities for his own account, but does not include a bank, or any
person insofar as he buys or sells securities for his own account,
either individually or in some fiduciary capacity, but not as part
of a regular business.
An office or a location at which occurs a regular and continuous
course of dealing for 30 consecutive days or more. A definite place
of business for a person engaged in business may include a location
leased or otherwise obtained from another person on a temporary or
seasonal basis, and real property leased to another. A person's residence
shall be deemed to be a definite place of business if there is no
definite place of business maintained elsewhere and the person is
not licensable as a peddler or itinerant merchant.
Any person who shall offer to sell or barter any goods, wares
or merchandise at the Lexington Farmer's Market as allowed by the
Farmer's Market Committee. Farmer's market vendors shall be exempt
from the requirement to obtain a business license or pay any fee for
such license for sales or barters made at the farmer's market.
[Added 1-20-2022 by Ord. No. 2022-01]
The buying, selling, handling, managing, investing, and providing
of advice regarding money, credit, securities and other investments
and shall include the service for compensation by a credit agency,
an investment company, a broker or dealer in securities and commodities
or a security or commodity exchange, unless such service is otherwise
provided for in this article. Those engaged in rendering financial
services include, but without limitation, the following:
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Buying installment receivables
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Chattel mortgage financing
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Consumer financing
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Credit card services
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Credit unions
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Factors
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Financing accounts receivable
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Industrial loan companies
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Installment financing
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Inventory financing
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Loan or mortgage brokers
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Loan or mortgage companies
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Safety deposit box companies
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Security and commodity brokers and services
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Stockbroker
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Working capital financing
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A clairvoyant, a practitioner of palmistry, a phrenologist,
a faith healer, a star analyst, a handwriting analyst who attempts
to predict the future, or any other person who attempts to predict
the future.
The whole, entire, total receipts attributable to the licensed
privilege, without deduction, except as may be limited by the provisions
of Chapter 37 of Title 58.1 of the Code of Virginia.
A person who shall engage in, do or transact any temporary
or transient business in the City either in one locality or in traveling
from place to place in the sale of goods, wares and merchandise and
who for the purpose of carrying on such business shall hire, lease,
use or occupy any building or structure, motor vehicle, tent, car,
boat or public room or any part thereof, including rooms in hotels,
lodging houses or houses of private entertainment, or in any road,
street, alley or other public place in the City, for a period of less
than one year, for the exhibition of or sale of such goods, wares
or merchandise.
The calendar year for which a license is issued for the privilege
of engaging in business.
Any building, room or other enclosure, whether permanent
or temporary, utilized for the giving of massages.
This definition is not applicable to:
Hospitals, clinics, medical offices or treatment
centers where such services are performed by duly licensed practitioners
of the healing arts;
Facilities utilized by schools and colleges
generally for the care and treatment of athletic injuries, which facilities
are not open to the general public; or
Facilities utilized by massage therapists or
massage practitioners who have completed a professional massage technician
curriculum certified by the Board of Education of the Commonwealth
of Virginia, by the American Massage Therapy Association or the Associated
Bodywork and Massage Professionals or a massage therapist who is able
to furnish a diploma from a recognized educational institute or other
indicia of completion of a course in massage therapy which requires
at a minimum 350 hours of course work which may include practical
training as a normal part of the course. Recognition or certification
of the facility may be waived by the Commissioner if the applicant
provides sufficient documentation to substantiate the quality of the
facility providing the training.
Any person who shall carry from place to place any goods,
wares or merchandise and offer to sell or barter the same, or actually
sell or barter the same, shall be deemed to be a peddler. All persons
who do not keep a regular place of business, whether it be a house
or a vacant lot or elsewhere, open at all times in regular business
hours and at the same place, who shall offer for sale foods, wares
and merchandise, shall be deemed peddlers. All persons who keep a
regular place of business, open at all times in regular business hours
and at the same place, who shall, elsewhere than at such regular place
of business, personally or through their agents, offer for sale or
sell and, at the time of such offering for sale, deliver goods, wares
and merchandise also shall be deemed peddlers as above, but this shall
not apply to those who sell or offer for sale in person or by their
employees ice, wood, charcoal, meats, milk, butter, eggs, poultry,
fish, oysters, game vegetables, fruits or other family supplies of
a perishable nature or farm products grown or produced by them and
not purchased by them for sale, but a dairyman who uses upon the streets
of the City one or more vehicles may sell and deliver from his vehicles
milk, butter, cream and eggs in such City without procuring a peddler's
license. No vendor at the Lexington Farmer's Market shall be considered
a peddler under this definition. Please see the definition above for
"farmer's market vendor."
[Amended 1-20-2022 by Ord. No. 2022-01]
Any person who, at other than a definite place of business
operated by the seller, shall sell or offer to sell goods, wares or
merchandise to licensed dealers or retailers and at the time such
sale or exposure for sale shall deliver, or offer to deliver, the
goods, wares or merchandise to the buyer; any delivery made on the
day of sale shall be construed as equivalent to delivery at the time
of sale.
Any individual, firm, copartnership, corporation, company,
association or joint-stock association. Such term shall include any
trustee, receiver, assignee or personal representative thereof carrying
on or continuing a business, profession, trade or occupation, but
shall not include a court-appointed trustee, receiver or personal
representative, in the liquidation of assets for immediate distribution,
or a sergeant or sheriff or any deputy, selling under authority of
process or writ of a court of justice. Such term shall not include
a volunteer fire department, a volunteer rescue squad or a nonprofit
organization operating a community center, swimming pool, tennis court
or other educational, cultural, recreational and athletic facilities
and facilities for the welfare of the residents of the area.
Rendering for compensation any repair, personal, business
or other services not specifically classified as financial, real estate
or professional service under this article, or rendered in any other
business or occupation not specifically classified in this article
unless exempted from local license tax by Title 58.1 of the Code of
Virginia.
Services performed by architects, attorneys at law, certified
public accountants, dentists, engineers, land surveyors, surgeons,
veterinarians, and practitioners of the healing arts (the arts and
sciences dealing with the prevention, diagnosis, treatment and cure
or alleviation of human physical or mental ailments, conditions, diseases,
pain or infirmities) and such occupations, and no others, as the Virginia
Department of Taxation may list in the BPOL guidelines promulgated
pursuant to § 58.1-3701 of the Code of Virginia. The Department
shall identify and list each occupation or vocation in which a professed
knowledge of some department of science or learning, gained by a prolonged
course of specialized instruction and study, is used by its practical
application to the affairs of others, either advising, guiding, or
teaching them, and in serving their interests or welfare in the practice
of an art or science founded on it. The word "profession" implies
attainments in professional knowledge as distinguished from mere skill,
and the application of knowledge to uses for others rather than for
personal profit.
All goods, wares and merchandise received for sale at each
definite place of business of a wholesale merchant. The term shall
also include the cost of manufacture of all goods, wares and merchandise
manufactured by any wholesaler or wholesale merchant and sold or offered
for sale. Such merchant may elect to report the gross receipts from
the sale of manufactured goods, wares and merchandise if it cannot
determine or chooses not to disclose the cost of manufacture.
Rendering a service for compensation as lessor, buyer, seller,
agent or broker and providing a real estate service, unless the service
is otherwise specifically provided for in this article, and such services
include, but are not limited to, the following:
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Appraisers of real estate
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Escrow agents, real estate
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Fiduciaries, real estate
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Lessors of real property
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Real estate agents, brokers and managers
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Real estate selling agents
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Rental agents for real estate
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Any person or merchant who sells goods, wares and merchandise
for use or consumption by the purchaser or for any purpose other than
resale by the purchaser, but does not include sales at wholesale to
institutional, commercial and industrial users.
Shall have the same meaning as in the Securities Act (§ 13.1-501
et seq.) of the Code of Virginia or in similar laws of the United
States regulating the sale of securities.
Things purchased by a customer which do not have physical
characteristics, or which are not goods, wares, or merchandise.
Any beverage which contains alcohol obtained by distillation
mixed with drinkable water and other substances, in solution, and
includes, among other things, brandy, rum, whiskey and gin, or any
one or more of the last four named ingredients, but shall not include
any such liquors completely denatured in accordance with formulas
approved by the government of the United States.
Any person or merchant who sells wares and merchandise for
resale by the purchaser, including sales when the goods, wares and
merchandise will be incorporated into goods and services for sale,
and also includes sales to institutional, commercial, government and
industrial users which because of the quantity, price, or other terms
indicate that they are consistent with sales at wholesale.
Any beverage obtained by the fermentation of the natural
sugar contents of fruits or other agricultural products containing
sugar, including honey and milk, either with or without additional
sugar, and containing more than three and two-tenths per centum of
alcohol by weight.
A.Â
Every person engaging in this jurisdiction in any
business, trade, profession, occupation or calling (collectively hereinafter
a "business") as defined in this article, unless otherwise exempted
by law, shall apply for a license for each such business if such person
maintains a definite place of business in this jurisdiction; such
person does not maintain a definite office anywhere but does maintain
an abode in this jurisdiction, which abode for the purposes of this
article shall be deemed a definite place of business; or there is
no definite place of business but such person operates amusement machines,
is engaged as a peddler or itinerant merchant, carnival or circus
as specified in § 58.1-3717, 58.1-3718 or 58.1-3728, respectively,
of the Code of Virginia, or is a contractor subject to § 58.1-3715
of the Code of Virginia, or is a public service corporation subject
to § 58.1-3731 of the Code of Virginia. A separate license
shall be required for each definite place of business. A person engaged
in two or more businesses or professions carried on at the same place
of business may elect to obtain one license for all such businesses
and professions if all of the following criteria are satisfied:
(1)Â
Each business or profession is licensable at the location
and has satisfied any requirements imposed by state law or other provisions
of the ordinances of this jurisdiction;
(2)Â
All of the businesses or professions are subject to
the same tax rate, or, if subject to different tax rates, the licensee
agrees to be taxed on all businesses and professions at the highest
rate; and
(3)Â
The taxpayer agrees to supply such information as
the Assessor may require concerning the nature of the several businesses
and their gross receipts.
B.Â
Every person required to pay a license tax or to obtain
any tag or sign under the provisions of this article shall keep the
license tag or sign in a convenient place and, whenever required to
do so, shall exhibit the same to any authorized representative of
the City. No license measured by volume of business shall be required
to be publicly displayed.
C.Â
Each person subject to a license tax shall apply for
a license prior to beginning business, if he was not subject to licensing
in this jurisdiction on or before January 1 of the license year, or
no later than March 1 of the current license year if he had been issued
a license for the preceding license year. The application shall be
on forms prescribed by the assessing official.
D.Â
The tax shall be paid with the application in the
case of any license not based on gross receipts. If the tax is measured
by the gross receipts of the business, the tax shall be paid on or
before March 1 of the current license year.
E.Â
All licenses issued under the provisions of this article shall expire on December 31 of each year, except where it is otherwise specifically provided. There shall be no abatement from or proration of any license tax imposed hereunder, except as set forth in Subsection I of this section, and except that any person who pays a flat rate license and shall begin business after the beginning of the license tax year shall pay to the City a tax for the whole of such year, but such portion of such tax as the period between the first day of such year and the date of issuing the license shall bear to the whole year shall be deducted from the license tax to be assessed against such person for the privilege of doing the same business for the ensuing year when the same becomes payable, and except, further, that in computing such tax, no deduction shall be made therefrom for any fractional part of a month. The foregoing provision shall not apply to any gross receipts licenses issued under this article or to any license computed upon the amount of sales or contracts made or done by the licensee during the preceding year, nor shall these provisions apply to any such license taxes the proration of which is expressly prohibited under other sections of this article.
F.Â
The assessing official may grant an extension of time,
not to exceed 90 days, in which to file an application for a license,
for reasonable cause. The extension shall be conditioned upon the
timely payment of a reasonable estimate of the appropriate tax, subject
to adjustment to the correct tax at the end of the extension, together
with interest from the due date until the date paid, and, if the estimate
submitted with the extension is found to be unreasonable under the
circumstances, a penalty of 10% of the portion paid after the due
date.
G.Â
A penalty of 10% of the tax may be imposed upon the
failure to file an application or the failure to pay the tax by the
appropriate due date. Only the late filing penalty shall be imposed
by the assessing official if both the application and payment are
late; however, both penalties may be assessed if the assessing official
determines that the taxpayer has a history of noncompliance. In the
case of an assessment of additional tax made by the assessing official,
if the application and, if applicable, the return were made in good
faith and the understatement of the tax was not due to any fraud or
reckless or intentional disregard of the law by the taxpayer, there
shall be no late payment penalty assessed with the additional tax.
If any assessment of tax by the assessing official is not paid within
30 days, the Treasurer may impose a ten-percent late payment penalty.
The penalties shall not be imposed or, if imposed, shall be abated
by the official who assessed them if the failure to file or pay was
not the fault of the taxpayer. In order to demonstrate lack of fault,
the taxpayer must show that he acted responsibly and that the failure
was due to events beyond his control.
(1)Â
"Acted responsibly" means that the taxpayer exercised
the level of reasonable care that a prudent person would exercise
under the circumstances in determining the filing obligations for
the business and the taxpayer undertook significant steps to avoid
or mitigate the failure, such as requesting appropriate extensions
(where applicable), attempting to prevent a foreseeable impediment,
acting to remove an impediment once it occurred, and promptly rectifying
a failure once the impediment was removed or the failure discovered.
(2)Â
"Events beyond the taxpayer's control" include, but
are not limited to, the unavailability of records due to fire or other
casualty; the unavoidable absence (e.g., due to death or serious illness)
of the person with the sole responsibility for tax compliance; or
the taxpayer's reasonable reliance in good faith upon erroneous written
information from the assessing official, who was aware of the relevant
facts relating to the taxpayer's business when he provided the erroneous
information.
H.Â
Interest shall be charged on the late payment of the
tax from the due date until the date paid without regard to fault
or other reason for the late payment. Whenever an assessment of additional
or omitted tax by the assessing official is found to be erroneous,
all interest and penalty charged and collected on the amount of the
assessment found to be erroneous shall be refunded together with interest
on the refund from the date of payment or the due date, whichever
is later. Interest shall be paid on the refund of any tax paid under
this article from the date of payment or due date, whichever is later,
whether attributable to an amended return or other reason. Interest
on any refund shall be paid at the same rate charged under § 58.1-3916
of the Code of Virginia. No interest shall accrue on an adjustment
of estimated tax liability to actual liability at the conclusion of
a base year. No interest shall be paid on a refund or charged on a
late payment, in the event of such adjustment, provided that the refund
or the late payment is made not more than 30 days from the date of
the payment that created the refund or the due date of the tax, whichever
is later.
I.Â
Any taxpayer who ceases to engage in the business,
trade profession or calling during a year from which a license tax
based on gross receipts already has been paid shall be entitled, upon
application, to a refund for that portion of the license tax already
paid, prorated on a monthly basis or upon the difference between the
tax already paid and the tax which otherwise would be assessed on
the actual gross receipts of the taxpayer, whichever is lesser.
(1)Â
Any refund to which a taxpayer may be entitled under
this section may be remitted in the ensuing fiscal year, and the Treasurer
also may offset against such refund any amount of past due taxes owed
by the same taxpayer to the City.
(2)Â
Nothing in this section shall be construed as requiring
the City to make a refund of any part of a flat fee or a minimum flat
tax.
[Amended by Ord. No. 05-9]
A.Â
General rule. Whenever the tax imposed by this article
is measured by gross receipts, the gross receipts included in the
taxable measure shall be only those gross receipts attributed to the
exercise of a licensable privilege at a definite place of business
within this jurisdiction. In the case of activities conducted outside
of a definite place of business, such as during a visit to a customer
location, the gross receipts shall be attributed to the definite place
of business from which such activities are initiated, directed, or
controlled. The situs of gross receipts for different classifications
of business shall be attributed to one or more definite places of
business or offices as follows:
(1)Â
The gross receipts of a contractor shall be attributed
to the definite place of business at which his services are performed,
or if his services are not performed at any definite place of business,
then the definite place of business from which his services are directed
or controlled, unless the amount of business done in the City by the
contractor exceeds the sum of $25,000 for the license year.
(2)Â
The gross receipts of a retailer or wholesaler shall
be attributed to the definite place of business at which sales solicitation
activities occur, or if sales solicitation activities do not occur
at any definite place of business, then the definite place of business
from which sales solicitation activities are directed or controlled;
however, a wholesaler or distribution house subject to a license tax
measured by purchases shall determine the situs of its purchases by
the definite place of business at which or from which deliveries of
the purchased goods, wares and merchandise are made to customers.
Any wholesaler who is subject to license tax in two or more localities
and who is subject to multiple taxation because the localities use
different measures may apply to the Department of Taxation for a determination
as to the proper measure of purchases and gross receipts subject to
license tax in each locality.
(3)Â
The gross receipts of a business renting tangible
personal property shall be attributed to the definite place of business
from which the tangible personal property is rented or, if the property
is not rented from any definite place of business, then the definite
place of business at which the rental of such property is managed.
(4)Â
The gross receipts from the performance of services
shall be attributed to the definite place of business at which the
services are performed or, if not performed at any definite place
of business, then the definite place of business from which the services
are directed or controlled.
B.Â
Apportionment. If the licensee has more than one definite
place of business and it is impractical or impossible to determine
to which definite place of business gross receipts should be attributed
under the general rule (and the affected jurisdictions are unable
to reach an apportionment agreement), except as to circumstances set
forth in § 58.1-3709 of the Code of Virginia, the gross
receipts of the business shall be apportioned between the definite
places of business on the basis of payroll. Gross receipts shall not
be apportioned to a definite place of business unless some activities
under the applicable general rule occurred at, or were controlled
from, such definite place of business. Gross receipts attributable
to a definite place of business in another jurisdiction shall not
be attributed to this jurisdiction solely because the other jurisdiction
does not impose a tax on the gross receipts attributable to the definite
place of business in such other jurisdiction.
C.Â
Agreements. The Assessor may enter into agreements
with any other political subdivision of Virginia concerning the manner
in which gross receipts shall be apportioned among definite places
of business. However, the sum of the gross receipts apportioned by
the agreement shall not exceed the total gross receipts attributable
to all of the definite places of business affected by the agreement.
Upon being notified by a taxpayer that its method of attributing gross
receipts is fundamentally inconsistent with the method of one or more
political subdivisions in which the taxpayer is licensed to engage
in business and that the difference has, or is likely to, result in
taxes on more than 100% of its gross receipts from all locations in
the affected jurisdictions, the Assessor shall make a good faith effort
to reach an apportionment agreement with the other political subdivisions
involved.
[Amended by Ord. No. 05-9]
A.Â
Where, before the expiration of the time prescribed
for the assessment of any license tax imposed pursuant to this article,
both the assessing official and the taxpayer have consented in writing
to its assessment after such time, the tax may be assessed at any
time prior to the expiration of the period agreed upon. The period
so agreed upon may be extended by subsequent agreements in writing
made before the expiration of the period previously agreed upon.
B.Â
Notwithstanding § 58.1-3903 of the Code
of Virginia, the assessing official shall assess the local license
tax omitted because of fraud or failure to apply for a license for
the current license year and the three preceding years.
C.Â
The period for collecting any local license tax shall not expire prior to the period specified in § 58.1-3940 of the Code of Virginia, two years after the date of assessment if the period for assessment has been extended pursuant to this section, two years after the final determination of an appeal for which collection has been stayed pursuant to the following § 255-12B or C of this article, or two years after the final decision in a court application pursuant to § 58.1-3984 of the Code of Virginia or similar law for which collection has been stayed, whichever is later.
D.Â
Whenever the Commissioner of the Revenue shall ascertain
that any person shall be assessed with any additional license taxes
pursuant to the provisions of this article, it shall be his duty to
assess such person with such additional license taxes as may be reported
to him to be due. In the event that such additional license taxes
so assessed shall not have been paid within 30 days after such assessment,
the Commissioner of the Revenue shall proceed to collect the same
as delinquent taxes.
E.Â
Licenses issued under this article shall be transferable,
except where otherwise provided, but in no case shall any transfer
of license be legal or valid unless and until notice in writing of
such transfer shall have been given to the Commissioner of the Revenue,
who shall have approved such transfer in writing on the license. Such
notice shall state the time of the transfer and the place of business
and name of the person to whom transferred. The Commissioner of the
Revenue shall keep a record of such transfers and shall submit a copy
of each such transfer to the proper enforcement officer.
A.Â
Any person assessed with a licensing tax under this
article as the result of an audit may apply within 90 days from the
date of the assessment to the assessing official for a correction
of the assessment. The application must be filed in good faith and
sufficiently identify the taxpayer, audit period, remedy sought, each
alleged error in the assessment, the grounds upon which the taxpayer
relies, and any other facts relevant to the taxpayer's contention.
The Assessor may hold a conference with the taxpayer if requested
by the taxpayer or require submission of additional information and
documents, further audit, or other evidence deemed necessary for a
proper and equitable determination of the application. The assessment
shall be deemed prima facie correct. The Assessor shall undertake
a full review of the taxpayer's claims and issue a determination to
the taxpayer setting forth his position. Every assessment pursuant
to an audit shall be accompanied by a written explanation of the taxpayer's
right to seek correction and the specific procedure to be followed
in the jurisdiction (e.g., the name and address to which an application
should be directed).
B.Â
Provided that an application is made within 90 days of an assessment, collection activity shall be suspended until a final determination is issued by the Assessor, unless the Assessor determines that collection would be jeopardized by delay or that the taxpayer has not responded to a request for relevant information after a reasonable time. Interest shall accrue in accordance with the provisions of § 255-9G of this article, but no further penalty shall be imposed while collection action is suspended. The term "jeopardized by delay" includes a finding that the application is frivolous, or that a taxpayer desires to depart quickly from the locality, to remove his property therefrom, to conceal himself or his property therein, or to do any other act tending to prejudice, or to render wholly or partially ineffectual, proceedings to collect the tax for the period in question.
C.Â
Any person assessed with a license tax under this article as a result of an audit may apply within 90 days of the determination by the assessing official on an application pursuant to Subsection A above to the Tax Commissioner for a correction of such assessment. The Tax Commissioner shall issue a determination to the taxpayer within 90 days of receipt of the taxpayer's application, unless the taxpayer and the assessing official are notified that a longer period will be required. The application shall be treated as an application pursuant to § 58.1-1821 of the Code of Virginia, and the Tax Commissioner may issue an order correcting such assessment pursuant to § 58.1-1822 of the Code of Virginia. Following such an order, either the taxpayer or the assessing official may apply to the appropriate Circuit Court pursuant to § 58.1-3984 of the Code of Virginia. However, the burden shall be on the party making the application to show that the ruling of the Tax Commissioner is erroneous. Neither the Tax Commissioner nor the Department of Taxation shall be made a party to an application to correct an assessment merely because the Tax Commissioner has ruled on it.
D.Â
On receipt of a notice of intent to file an appeal to the Tax Commissioner under Subsection C above, the assessing official shall further suspend collection activity until a final determination is issued by the Tax Commissioner, unless the Assessor determines that collection would be jeopardized by delay or that the taxpayer has not responded to a request for relevant information after a reasonable time. Interest shall accrue in accordance with the provisions of § 255-9G, but no further penalty shall be imposed while collection action is suspended. The term "jeopardized by delay" shall have the same meaning as set forth in Subsection B above.
E.Â
Any taxpayer may request a written ruling regarding
the application of the tax to a specific situation from the Assessor.
Any person requesting such a ruling must provide all the relevant
facts for the situation and may present a rationale for the basis
of an interpretation of the law most favorable to the taxpayer. Any
misrepresentation or change in the applicable law or the factual situation
as presented in the ruling request shall invalidate any such ruling
issued. A written ruling may be revoked or amended prospectively if
there is a change in the law, a court decision, or the Assessor notifies
the taxpayer of a change in the policy or interpretation upon which
the ruling was based. However, any person who acts on a written ruling
which later becomes invalid shall be deemed to have acted in good
faith during the period in which such ruling was in effect.
A.Â
Every person who is assessable with a license tax
shall keep sufficient records to enable the Assessor to verify the
correctness of the tax paid for the license years assessable and to
enable the Assessor to ascertain what is the correct amount of tax
that was assessable for each of those years. All such records, books
of accounts and other information shall be open to inspection and
examination by the Assessor in order to allow the Assessor to establish
whether a particular receipt is directly attributable to the taxable
privilege exercised within this jurisdiction. The Assessor shall provide
the taxpayer with the option to conduct the audit in the taxpayer's
local business office, if the records are maintained there. In the
event that the records are maintained outside this jurisdiction, copies
of the appropriate books and records shall be sent to the Assessor's
office upon demand.
B.Â
Any person who shall refuse to permit the Commissioner
of the Revenue or his authorized agent to examine and audit his records,
books and papers pertaining to the gross receipts of such person shall
be guilty of violation of this article and, upon conviction thereof,
shall be fined not more than $500. This penalty shall likewise apply
to any nonresident person who shall fail or refuse to bring his records,
books and papers pertaining to gross receipts to the office of the
Commissioner of the Revenue for such production.
A.Â
General rule. Gross receipts for license tax purposes
shall not include any amount not derived from the exercise of the
licensed privilege to engage in a business or profession in the ordinary
course of business or profession.
B.Â
The following items shall be excluded from gross receipts:
(1)Â
Amounts received and paid to the United States, the
commonwealth or any county, city or town for the Virginia retail sales
or use tax, or for any local sales tax or any local excise tax on
cigarettes, or for any federal or state excise taxes on motor fuels.
(2)Â
Any amount representing the liquidation of a debt
or conversion of another asset to the extent that the amount is attributable
to a transaction previously taxed (e.g., the factoring of accounts
receivable created by sales which have been included in taxable receipts
even though the creation of such debt and factoring are a regular
part of its business).
(3)Â
Any amount representing returns and allowances granted
by the business to its customer.
(4)Â
Receipts which are the proceeds of a loan transaction
in which the licensee is the obligor.
(5)Â
Receipts representing the return of principal of a
loan transaction in which the licensee is the creditor, or the return
of principal or basis upon the sale of a capital asset.
(6)Â
Rebates and discounts taken or received on account
of purchases by the licensee. A rebate or other incentive offered
to induce the recipient to purchase certain goods or services from
a person other than the offeror, and which the recipient assigns to
the licensee in consideration of the sale of goods and services, shall
not be considered a rebate or discount to the licensee but shall be
included in the licensee's gross receipts together with any handling
or other fees related to the incentive.
(7)Â
Withdrawals from inventory for purposes other than
sale or distribution and for which no consideration is received and
the occasional sale or exchange of assets other than inventory, whether
or not a gain or loss is recognized for federal income tax purposes.
(8)Â
Investment income not directly related to the privilege
exercised by a licensable business not classified as rendering financial
services. This exclusion shall apply to interest on bank accounts
of the business, and to interest, dividends and other income derived
from the investment of its own funds in securities and other types
of investments unrelated to the licensed privilege. This exclusion
shall not apply to interest, late fees and similar income attributable
to an installment sale or other transaction that occurred in the regular
course of business.
C.Â
The following shall be deducted from gross receipts
or gross purchases that would otherwise be taxable:
(1)Â
Any amount paid for computer hardware and software
that are sold to a United States federal or state government entity,
provided that such property was purchased within two years of the
sale to said entity by the original purchaser who shall have been
contractually obligated at the time of purchase to resell such property
to a state or federal government entity. This deduction shall not
occur until the time of resale and shall apply to only the original
cost of the property and not to its resale price, and the deduction
shall not apply to any of the tangible personal property which was
the subject of the original resale contract if it is not resold to
a state or federal government entity in accordance with the original
contract obligation.
(2)Â
Any receipts attributable to business conducted in
another state or foreign country in which the taxpayer is liable for
an income or other tax based upon income.
[Amended by Ord. No. 97-2; Ord. No. 02-3]
Every person or business subject to licensure
under this article shall be assessed and required to pay annually
a license fee of $30 or the applicable rate per $100 of gross receipts,
specified below, whichever is greater.
A.Â
For contractors and persons constructing for their
own account for sale, $0.16 per $100 of gross receipts.
B.Â
For retailers, $0.20 per $100 of gross receipts.
C.Â
For financial, real estate and professional services,
$0.58 per $100 of gross receipts.
D.Â
Every person who shall for compensation enter into
any bond or bonds for others, whether as a principal or surety, shall
pay to the City an annual license tax of $50.
E.Â
For repair, personal and business services and all
other businesses and occupations not specifically listed or exempted
in this article or otherwise by law, $0.36 per $100 of gross receipts.
F.Â
For wholesalers, $0.05 per $100 of purchases.
G.Â
For carnivals, circuses and speedways, $150 for each
performance held in this jurisdiction (see § 58.1-3728 of
the Code of Virginia for limitations).
H.Â
For fortune-tellers, clairvoyants and practitioners
of palmistry, $750 per year.
I.Â
Every person engaged in the business of operating
a massage parlor shall pay to the City an annual license tax of $1,500.
The license tax levied under this subsection is in addition to the
liability of such person to pay an annual license tax based on gross
receipts as hereinafter set forth.
J.Â
For itinerant merchants or peddlers, as follows:
[Amended 8-20-2009 by Ord. No. 2009-08; 12-7-2017 by Ord. No. 2017-13]
(1)Â
Every peddler who sells food and/or drinks in the City from a food
truck, food trailer or food cart, $300 per year. (See limitation in
§ 58.1-3717 of the Code of Virginia.)
(2)Â
Every peddler who sells ice cream or frozen food items in the City
operating exclusively from a marked motor vehicle, $50 per year or
the tax due based on gross annual receipts, whichever is greater.
(See limitation in § 58.1-3717 of the Code of Virginia.)
(3)Â
Every other peddler, $500 per year. (See limitation in § 58.1-3717
of the Code of Virginia.) Such fee may be waived by the City Council
for approved special events sponsored by community organizations.
K.Â
For photographers, $30 per year (see limitation in
§ 58.1-3727) of the Code of Virginia.
L.Â
Any person defined as a coin machine amusement operator
shall pay to the City an annual license tax of $20 per machine not
exceeding a maximum of $200. The tax assessed under this subsection
is in addition to the license tax assessed against such operators
on a gross receipts basis as set forth elsewhere in this article.
M.Â
For savings and loan associations and credit unions,
$50 per year.
N.Â
For direct sellers as defined in § 58.1-3719.1
of the Code of Virginia with total annual sales in excess of $4,000,
$0.20 per $100 of total annual retail sales or $0.05 per $100 of total
annual wholesale sales, whichever is applicable.
O.Â
Each person holding a mixed beverage restaurant and
caterer's license issued by the Virginia Alcoholic Beverage Control
Board shall obtain from the Commissioner of the Revenue of the City
a license to sell mixed beverages in the City and the tax upon the
issuance of such licenses shall be as follows:
(1)Â
Person operating restaurants, including restaurants
located on premises of and operated by hotels and motels:
(a)Â
For each restaurant with a seating capacity
at tables for 50 to 100 persons: $100 per annum;
(b)Â
For each restaurant with a seating capacity
at tables for more than 100 but not more than 150 persons: $175 per
annum;
(c)Â
For each restaurant with a seating capacity
at tables for more than 150 persons: $250 per annum;
(d)Â
For each caterer: $250 per annum; and
(e)Â
Mixed beverage special events licenses: $10
for each day of each event.
(2)Â
A private, nonprofit club operating a restaurant located
on the premises of such club: $175 per annum.
P.Â
Every person or entity engaged in the business of
providing telephone and telegraph communications and furnishing water
or sewer, heat, light, power and gas in the City shall pay an annual
license tax equal to 1/2 of 1% gross receipts from business accruing
in the City, except that charges for long-distance telephone calls
shall not be considered receipts of business in the City.
