ORANGE COUNTY, VIRGINIA

CODE OF ORDINANCES

 
112 W. Main Street
Orange, Virginia 22960

Article IX - Food and Beverage Tax

Sec. 58-416. - Definitions.

The following words and phrases, when used in this article, shall have, for the purposes of this article, the following respective meanings except where the context clearly indicates a different meaning:

Beverage means any alcoholic beverages as defined in Code of Virginia, § 4.1-100, and nonalcoholic beverages, any of which are served as part of a meal, excluding alcoholic beverages sold in factory sealed containers and purchased for off-premises consumption.

Caterer means a person who furnishes food on the premises of another for compensation.

Commissioner of the revenue means the commissioner of the revenue of the county and any of his duly authorized deputies, assistants, employees or agents.

Food means any and all edible refreshments or nourishment, liquid or otherwise, including beverages as herein defined, purchased in or from a restaurant or from a caterer, except snack foods.

Meal means any food as herein defined, other than a beverage, sold for consumption on the premises or elsewhere, whether designated as breakfast, lunch, snack, dinner, supper or by some other name, and without regard to the manner, time or place of service.

Person means any individual, corporation, company, association, firm, partnership or any group of individuals acting as a unit.

Purchaser means any person who purchases food in or from a restaurant or from a caterer.

Restaurant means:

(1) Any place where food is prepared for service to the public whether on or off the premises, including a delicatessen counter at a grocery store or convenience store selling prepared foods ready for human consumption; or

(2) Any place where food is served to the public.

Examples of a restaurant include, but are not limited to, a dining room, grill, coffee shop, cafeteria, cafe, snack bar, lunch counter, lunchroom, short-order place, tavern, delicatessen, confectionery, bakery, eating house, eatery, drugstore, catering service, lunch wagon or truck, pushcart or other mobile facility that sells food, and a dining facility in a public or private school or college.

Seller means any person who sells food in or from a restaurant or as a caterer.

Snack food means chewing gum, candy, popcorn, peanuts and other nuts, and unopened prepackaged cookies, donuts, crackers, potato chips and other items of essentially the same nature and consumed for essentially the same purpose.

(Ord. of 12-11-2001)


Sec. 58-417. - Levy of tax; amount.

In addition to all other taxes and fees of any kind now or hereafter imposed by law, a tax is hereby levied and imposed on the purchaser of all food served, sold or delivered for human consumption in the unincorporated portions of the county in or from a restaurant, whether prepared in such restaurant or not, or prepared by a caterer. The rate of this tax shall be four percent of the amount paid for such food. In the computation of this tax, any fraction of $0.005 or more shall be treated as $0.01.

(Ord. of 12-11-2001)


Sec. 58-418. - Exemptions.

The following purchases of food shall not be subject to the tax under this article:

(1) Any food or food product purchased for home consumption as defined in the federal Food Stamp Act of 1977, 7 U.S.C. §2012, or amended, except for sandwiches, salad bar items sold from a salad bar, prepackaged single-serving salads consisting primarily of an assortment of vegetables, and non-factory sealed beverages. This exemption does not include hot food or hot food products ready for immediate consumption.

(2) Food and beverages sold through vending machines.

(3) Food for use or consumption by and paid for by the commonwealth, any political subdivision of the commonwealth or the United States.

(4) Food sold by public or private elementary or secondary schools, colleges, and universities to their students or employees.

(5) Food furnished by churches which serve meals for their members as a regular part of their religious observance.

(6) Food furnished by day care centers.

(7) Food furnished by boardinghouses that do not accommodate transients.

(8) Food sold by cafeterias operated by industrial plants for employees only.

(9) Food furnished by a hospital, medical clinic, convalescent home, nursing home, home for the aged, infirm or handicapped or other extended care facility to patients or residents thereof.

(10) Food furnished by homes for battered women, narcotic addicts, or alcoholics.

(11) Food furnished by a nonprofit charitable organization to elderly, infirm, handicapped or needy persons in their homes or at central locations.

(12) Food provided by private establishments that contract with the appropriate agency of the commonwealth to offer food, food products, or beverages for immediate consumption at concession prices to elderly, infirm, blind, handicapped, or needy persons in their homes or at central locations.

(13) Food furnished by age-restricted apartment complexes or residences with restaurants, not open to the public, where meals are served and fees are charged for such food and beverages and are included in rental fees.

(14) Food sold by volunteer fire departments and rescue squads; nonprofit churches or other religious bodies; educational, charitable, fraternal, or benevolent organizations, on an occasional basis, not exceeding three times per calendar year as a fundraising activity, the gross proceeds of which are to be used by such church, religious body or organization exclusively for nonprofit educational, charitable, benevolent, or religious purposes.

(15) Food furnished by restaurants to employees as part of their compensation when no charge is made to the employee.

(16) Any other sale of food which is exempt from taxation under the Virginia Retail Sales and Use Tax Act, or administrative rules and regulation issued pursuant thereto.

(Ord. of 12-11-2001; Ord. of 10-13-2009(1))


Sec. 58-419. - Tips and service charges.

(a) Where a purchaser provides a tip for an employee or employees of a seller, and the amount of the tip is wholly in the discretion of the purchaser, the tip is not subject to the tax imposed by this article, whether paid in cash to the employee or added to the bill and charged to the purchaser's account, provided, in the latter case, the full amount of the tip is turned over to the employee by the seller.

(b) An amount or percent, whether designated as a tip or a service charge, that is added to the price of the meal by the seller, and required to be paid by the purchaser, is a part of the selling price of the meal and is subject to the tax imposed by this article.

(Ord. of 12-11-2001)


Sec. 58-420. - Payment and collection of tax.

Every seller of food with respect to which a tax is levied under this article shall collect the amount of tax imposed under this article from the purchaser on whom the same is levied at the time payment for such food becomes due and payable, whether payment is to be made in cash or on credit by means of a credit card or otherwise. The amount of tax owed by the purchaser shall be added to the cost of the food by the seller who shall pay the taxes collected to the county as provided in this article. Taxes collected by the seller shall be held in trust by the seller until remitted to the county.

(Ord. of 12-11-2001)


Sec. 58-421. - Deduction for seller.

For the purpose of compensating sellers for the collection of the tax imposed by this article, every seller shall be allowed three percent of the amount of the tax due and accounted for in the form of a deduction on his monthly return; provided, the full amount shall be due if any part of the payment is delinquent at the time of payment.

(Ord. of 12-11-2001)


Sec. 58-422. - Reports and remittances generally.

Every seller of food with respect to which a tax is levied under this article shall make out a report, upon such forms and setting forth such information as the commissioner of the revenue may prescribe and require, showing the amount of food charges collected and the tax required to be collected, and shall sign and deliver such report to the commissioner of the revenue with a remittance of such tax made payable to the treasurer of the county. It shall be presumed that all food served, sold or delivered in the county in or from a restaurant is taxable under this article and the burden shall be upon the seller of food to establish by records what food is not taxable. Such reports and remittance shall be made on or before the twentieth day of each month, covering the amount of tax collected during the preceding month.

(Ord. of 12-11-2001)


Sec. 58-423. - Preservation of records.

It shall be the duty of any seller of food liable for collection and remittance of the taxes imposed by this article to keep and preserve for a period of three years records showing gross sales of all food and beverages, the amount charged the purchaser for each such purchase, the date thereof, the taxes collected thereon and the amount of tax required to be collected by this article. The commissioner of the revenue shall have the power to examine such records at reasonable times and without unreasonable interference with the business of the seller for the purpose of administering and enforcing the provisions of this article and to make copies of all or any parts thereof.

(Ord. of 12-11-2001)


Sec. 58-424. - Duty of seller when going out of business.

Whenever any seller required to collect or pay to the county a tax under this article shall cease to operate or otherwise dispose of his business, any tax payable under this article shall become immediately due and payable and such person shall immediately make a report and pay the tax due.

(Ord. of 12-11-2001)


Sec. 58-425. - Advertising payment or absorption of tax prohibited.

No seller shall advertise or hold out to the public in any manner, directly or indirectly, that all or any part of the tax imposed under this article will be paid or absorbed by the seller or anyone else, or that the seller or anyone else will relieve the purchaser of the payment of all or any part of the tax.

(Ord. of 12-11-2001)


Sec. 58-426. - Enforcement; duty of commissioner of the revenue.

It shall be the duty of the commissioner of the revenue to ascertain the name of every seller liable for the collection of the tax imposed by this article who fails, refuses or neglects to collect such tax or to make the reports and remittances required by this article. The commissioner of the revenue shall have all of the enforcement powers as authorized by Code of Virginia, Article 1, Chapter 31 of Title 58.1, for purposes of this article.

(Ord. of 12-11-2001)


Sec. 58-427. - Procedure upon failure to collect, report, etc.

If any seller whose duty it is to do so shall fail or refuse to collect the tax imposed under this article and to make, within the time provided in this article, the reports and remittances mentioned in this article, the commissioner of the Revenue shall proceed in such manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the commissioner of the revenue shall procure such facts and information as he is able to obtain upon which to base the assessment of any tax payable by any seller who has failed or refused to collect such tax and to make such report and remittance, he shall proceed to determine and assess against such seller the tax and penalties provided for by this article and shall notify such seller, by registered mail sent to his last known place of address, of the total amount of such tax and penalties and the total amount thereof shall be payable within ten days from the date such notice is sent.

(Ord. of 12-11-2001)


Sec. 58-428. - Collection.

The treasurer shall have the power and the duty of collecting the taxes imposed and levied hereunder and shall cause the same to be paid into the general treasury for the county.

(Ord. of 12-11-2001)


Sec. 58-429. - Penalty for late remittance or false return.

(a) If any seller whose duty it is to do so shall fail or refuse to file any report required by this article or to remit the tax required to be collected and paid under this article within the time and in the amount specified in this article, there shall be added to such tax by the commissioner of the revenue a penalty in the amount of ten percent of the total amount of the tax owed if the failure is not for more than 30 days, with an additional penalty of ten percent of the total amount of the tax owed for each additional 30 days or fraction thereof during which the failure continues, such penalty not to exceed 30 percent of the tax owed, provided, however, the minimum penalty shall be $10.00.

(b) In the case of a false or fraudulent return with intent to defraud the county of any tax due under this article, a penalty of 50 percent of the tax owed shall be assessed against the person required to collect such tax.

(Ord. of 12-11-2001)


Sec. 58-430. - Violations of article.

Any person required to collect, account for and pay over tax under this article, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully evades or attempts to evade any such tax or payment thereof, shall be guilty of a class 1 misdemeanor. Conviction of such violation shall not relieve any person from the payment, collection or remittance of the taxes or penalties provided for in this article. Any agreement by any person to pay the taxes or penalties provided for in this article by a series of installment payments shall not relieve any person of criminal liability for violation of this article until the full amount of taxes and penalties agreed to be paid by such person is received by the treasurer. Each failure, refusal, neglect or violation, and each day's continuance thereof, shall constitute a separate offense.

(Ord. of 12-11-2001)