Opinion Number
06181975
Tax Type
Retail Sales and Use Tax
Description
Restaurant Meals
Topic
Local Taxes Discussion
Date Issued
06-18-1975

I have received your recent letter inquiring as follows:
  • "1. Is authority provided for the City of Alexandria to impose an additional one percent sales tax on the price of meals served in restaurants located in the City under the exception provided in § 58-441.49 for imposition of local taxes on transient room rentals and meals?
    "2. Is authority provided for imposition of that tax under any other language in the §or elsewhere?

"Such tax will be separately stated and passed on to the restaurant customer.'

Section 2.02(a) of the Alexandria Charter (Acts of Assembly of 1950, Ch. 536) provides that the city has the power "[t]o raise annually by taxes and assessments in the city such sums of money as the council shall deem necessary to pay the debts and defray the expenses of the city, in such manner as the council shall deem expedient, provided that such taxes and assessments are notprohibited by the laws of the Commonwealth.' This provision confers the general power of taxation upon the city, which is a grant of all of the power of taxation possessed by the General Assembly of Virginia, subject only to such limitations as exist under the Constitution and laws of this State and of the United States. See Fallon Florist v. City of Roanoke, 190 Va. 564 (1950).

Section 58-441.49(a), Code of Virginia (1950), as amended, provides in pertinent part:
  • "No city, town, or county shall impose or continue to impose any local general sales or use tax or any local general retail sales or use tax after the State tax imposed by this chapter becomes effective, except as authorized by this section. Nothing contained in this chapter, however, shall be construed as impairing in any way the authority conferred upon any city, town or county by any other statute including charter provisions to impose local license taxes or other local taxes not intended to be separately stated or required to be passed on to the consumer, except that any locality may impose or continue to impose local excise taxes on cigarettes, local admissions taxes, local taxes on transient room rentals and meals, and consumer utility taxes to the extent authorized by law, whether such locality acts under subparagraph (b) of this section or not; but no city, town or county shall impose or continue to impose any local general sales or use tax or any local general retail sales or use tax after the State tax imposed by this chapter becomes effective, except as authorized by this section.' (Emphasis added.)
Section 58-441.49(a) is a limitation upon local powers of taxation and not a grant of the power to impose any tax. See generally Opinion to the Honorable Garry G. DeBruhl, Member, House of Delegates, dated May 11, 1973, and found in Report of the Attorney General (1972-1973) at 378-79. The limitation is that no "local general sales or use tax or any local general retail sales or use tax' may be imposed on and after September 1, 1966 (§ 58-441.47), except the one percent general retail sales tax authorized by § 58-441.49(b) and the one percent use tax authorized by § 58-441.49:1(a). Assuming, without deciding, that a sales tax on restaurant meals is a general sales tax or general retail sales tax, and thus within the prohibition of § 58-441.49(a), the exception for "local taxes on transient room rentals and meals' clearly excludes a sales tax on restaurant meals from the general prohibition.

In consideration of the foregoing, I am of the opinion that the City of Alexandria has the power under its charter to impose a sales tax on restaurant meals in addition to the general retail sales tax imposed by the city and that the exercise of this power is not prohibited by § 58-441.49(a).



Attorney General's Opinion

Last Updated 08/25/2014 16:42