Tax Type
BPOL Tax
Description
Specific types of license taxes
Topic
Local Power to Tax
Date Issued
08-16-1999
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Section 56-458(A) of the Code of Virginia grants telephone companies the authority to occupy and use public parks, roads, streets and alleys in any county, city or town for the erection of poles, wires and cables or for laying underground conduits. If the road or street is in the State Highway System or the secondary system of state highways, the company must first obtain a permit from the Commonwealth Transportation Board.1 Otherwise, the company must obtain the consent of the local governing body.2 Section 56-458(B) states:
- No locality or the Commonwealth Transportation Board shall impose any fees on a certificated provider of telecommunications service for the use of public rights-of-way except in the manner prescribed in § 56-468.1[.]
- Notwithstanding any other provisions of law, there is hereby established a Public Rights-of-Way Use Fee to replace any and all fees of general application (except for zoning, subdivision, site plan and comprehensive plan fees of general application) otherwise chargeable to a certificated provider of telecommunications service by the Commonwealth Transportation Board in connection with a permit for such occupation and use granted in accordance with § 56-458 or § 56-462. Cities and towns whose public streets and roads are not maintained by the Virginia Department of Transportation, and any county that has withdrawn or elects to withdraw from the secondary system of state highways may impose the Public Rights-of-Way Use Fee only by local ordinance.
The enabling legislation for the local assessment of business license taxes is set out in Chapter 37 of Title 58.1.4 § 58.1-3703(A) authorizes a locality to adopt an ordinance assessing a business, professional and occupational license ("BPOL') tax on the gross receipts of any person, firm or corporation that is operating a licensable business within the locality .§ 58.1-3731 expressly authorizes a locality to impose the BPOL tax on telephone companies providing a telephone exchange service in the locality.
The rights-of-way use fee and the BPOL tax are dissimilar in purpose and application. The public rights-of-way use fee is imposed on the telephone company's use of the public parks, roads, streets and alleys, with the amount of the fee measured by the number of highway and street miles in the Commonwealth, the number of feet of new installations and the number of access lines in the Commonwealth.5 In contrast, the BPOL tax is imposed on the telephone company for the privilege of engaging in business in the locality,6 with the amount of the tax measured by the company's gross receipts accruing from sales to the ultimate consumers in the locality.7 Moreover, the amounts imposed by a locality under the BPOL statutes constitute a tax rather than a fee.8
It is clear that the BPOL tax is neither a fee "for the use of public rights-of-way' under § 56-458(B) nor a fee "of general application chargeable in connection with a permit for such occupation and use' under § 56-468.1(B). No other language in the public rights-of-way statutes indicates a legislative intent to prohibit a locality that imposes a public rights-of-way use fee from imposing a BPOL tax on a telephone company. Accordingly, it is my opinion that collection of a public rights-of-way use fee on a telephone company under § 56-468.1 is not prevented by the collection of a BPOL tax on the company under § 58.1-3731.
1 Section 56-458(A).
2 Id.
3 Section 56-468.1(B).
4 Sections 58.1-3700 to 58.1-3735. I assume for purposes of this opinion that the city's present license tax on telephone companies conducting a telephone exchange in the city is imposed pursuant to this enabling legislation.
5 See § 56-468.1(C), (D). The Department of Transportation is to calculate the fee annually. § 56-468.1(C). The telephone company collects the fee by adding it to the ultimate end user's monthly bill and remits the fee either to the Department of Transportation or to the locality that imposes the fee. § 56-468.1(G), (H)(1)-(2).
6 See § 58.1-3700.
7 Section 58.1-3731.
8 See Charlottesville v. Marks' Shows, 179 Va. 321, 329, 18 S.E.2d 890, 894 (1942); 1997 Op. Va. Att'y Gen. 173, 175.
Attorney General's Opinion