Tax Type
BPOL Tax
Local Taxes
Description
Taxation of Unlicensed Business
Topic
Local Power to Tax
Local Taxes Discussion
Date Issued
01-08-1993
[Opinion - Virginia Attorney General: 1993 at 228]
REQUEST BY: The Honorable N. Everette Carmichael Commissioner of the Revenue for Chesterfield County P.O. Box 124 Chesterfield, Virginia 23832-0124
OPINION BY: Mary Sue Terry, Attorney General
OPINION:
You ask several questions about business license taxes. Your first question is whether you may levy a license tax on a business, even though a Chesterfield County ordinance prohibits you from issuing the business a license, because it is operating in a location not properly zoned for the business being conducted.
Your second question is whether, when a person is operating two businesses at the same location, one in violation of the applicable zoning restrictions and the other permitted under the zoning, the county ordinance requires you to refuse to issue the licenses for both businesses.
Your third question is whether Chesterfield County may impose a license tax on a business that maintains an office in the county, but operates carnivals in other Virginia localities. The carnivals in the other localities usually are sponsored by not-for-profit organizations in those localities, under agreements that require the sponsoring organization to obtain any necessary licenses or permits for the carnival to be operated by the business headquartered in your county. As a result, the business often avoids any license taxation for its carnivals in the other Virginia jurisdictions.
If the business operating the carnivals in your third question is taxable in Chesterfield, your fourth question is which section of the county license tax ordinance applies to the business, and your fifth question is whether Chesterfield may tax the business on its entire gross receipts or only on those gross receipts not taxed in other Virginia localities.
I. Applicable Statutes
Section 58.1-3708(A) of the Code of Virginia provides:
Except as otherwise provided by law and except as to public service corporations, the situs for the local license taxation for any licensable business, trade, occupation or calling, shall be the [locality] in which the person so engaged has a definite place of business or maintains his office. If any such person has a definite place of business or maintains an office in any other locality, then such other locality may impose a license tax on him, provided such other locality is otherwise authorized to impose a local license tax with respect thereto.
Section 58.1-3728(A) provides, in part:
Pursuant to the authority granted in § 58.1-3703 [authorizing the imposition of local license taxes], the governing body of any [locality] may levy and collect a license tax, the amount to be fixed by the governing body of such [ locality], for each performance held in such [locality] given by or upon carnivals, circuses or speedways which are operating within the limits of such [ locality].
II. Business Operating in Violation of Zoning Ordinance Not Relieved of License Tax Liability
Your first question is whether your inability to issue a license to a business because it is operating in violation of local zoning restrictions relieves that business of liability for business license taxes. Principles of equity dictate that one may not benefit from one's own wrongful act. See Richards v. Musselman, 221 Va. 181, 267 S.E.2d 164 (1980). In my opinion, therefore, a business operating in violation of a local zoning ordinance is still doing business, and is not relieved of the obligation to pay license taxes based on gross receipts generated by its operations.
III. Official Opinions Not Rendered on Interpretation of Local Ordinances
Your second and fourth questions depend on the interpretation of Chesterfield County's license tax ordinances. This Office historically has declined to render Opinions interpreting or applying local ordinances. ATT'Y GEN. ANN. REP.: 1991 at 30; 1977-1978 at 31, 33; 1976-1977 at 17, 18. Based on this long-standing policy, I respectfully decline to answer these two questions.
IV. Business Conducting Carnivals Subject to License Tax Only for Carnivals Held in Taxing Locality
Your third question is whether a taxpayer that has an office in Chesterfield County but operates carnivals throughout the Commonwealth primarily on behalf of not-for-profit organizations has a situs in Chesterfield for business license tax purposes. § 58.1-3708 establishes a general rule for determining taxable situs for business license tax purposes. Taxable situs generally is found where the taxpayer has a "definite place of business or maintains an office." By its own terms, however, § 58.1-3708 applies this general situs rule, "except as otherwise provided by law."
Section 58.1-3728 specifically establishes the situs for license taxation of carnivals, circuses and speedways in each locality in which they hold performances. Under accepted rules of statutory construction, specific statutes supersede those of more general application. Va. National Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979); ATT'Y GEN. ANN. REP.: 1991 at 172, 175; 1990 at 227, 228. The specific provisions of § 58.1-3728 establishing the taxable situs of carnivals thus override the general situs rule of § 58.1-3708. It is my opinion, therefore, that the business you describe has a taxable situs in each locality in which it operates a carnival, and that it is subject to business license taxation in Chesterfield only for carnivals held there. This conclusion is not altered by the fact that some of the other localities may not tax the business in question or the nonprofit organization acting as sponsor for a particular carnival. In view of this conclusion, it is unnecessary to address your fifth question.
Attorney General's Opinion