Attorney General Opinions

The Honorable Harry B. Blevins

Member, House of Delegates

You ask for guidance regarding the effect of recent legislative enactments to §§ 58.1-3833 and 58.1-3840 of the Code of Virginia upon a locality’s authority to impose a food and beverage or meals tax.¹

Section 58.1-3833(A) authorizes "[a]ny county … to levy a tax on food and beverages sold, for human consumption, by a restaurant." § 58.1-3840 authorizes "any city or town" to impose an excise tax on "meals." The primary goal of statutory construction is to discern and give effect to legislative intent, with the reading of a statute as a whole influencing the proper construction of ambiguous individual provisions.² Both these statutes contemplate the imposition of a local tax on food sold in the context as a meal served by an entity operating as a restaurant as opposed to a retail sales tax on food sold as groceries.³

The 1999 Session of the General Assembly enacted the Food Tax Reduction Program, § 58.1-611.1,⁴ which gradually decreases the state sales tax on food from January 1, 2000, through April 1, 2003.⁵ Under this program, the local sales tax on food remains intact.6 The definition of the term "food" for purposes of § 58.1-611.1 has the same meaning as "food" defined in § 2012 of the Food Stamp Act of 1977 and the federal regulations adopted pursuant to that Act:⁷ "any food or food product for home consumption except … hot foods or hot food products ready for immediate consumption."⁸ This definition is consistent with the premise that food stamps may be used to purchase groceries rather than to purchase food prepared for immediate consumption by a restaurant.

The 1999 Session of the General Assembly added to §§ 58.1-3833 and 58.1-3840 a paragraph providing that, "[n]otwithstanding any other provision of this section, no locality^[9] shall levy any tax under this section upon food purchased for human consumption as ‘food’ is defined in the Food Stamp Act of 1977, 7 U.S.C. § 2012, as amended, and federal regulations adopted pursuant to that act."¹⁰ You ask whether this language has restricted the food and beverage tax and the meals tax throughout the Commonwealth so that only hot foods ready for immediate consumption are subject to such taxes.

It is axiomatic that "[r]epeal of a statute by implication is not favored."¹¹ Had the General Assembly intended to repeal the food and beverage tax and meals tax on all foods except hot foods ready for immediate consumption it could have done so expressly.¹² It did not, however. Furthermore, statutes should be interpreted to avoid an illogical result.¹³ To interpret the inclusion of this language as permitting the tax only on hot foods prepared for immediate consumption would result in restaurants having to distinguish between hot and cold foods and calculate the tax accordingly, a result which, in my opinion, is illogical.

Furthermore, with respect to grocery stores and convenience stores selling both groceries and prepared foods, § 58.1-3833(A) specifically provides:

• • • • Grocery stores and convenience stores selling prepared foods ready for human consumption at a delicatessen counter shall be subject to the [food and beverage] tax, for that portion of the grocery store or convenience store selling such items. The food and beverage tax on meals sold by grocery store delicatessens and convenience stores shall be limited to prepared sandwiches and single-meal platters.