Document Number
03-68
Tax Type
BPOL Tax
Description
Yard sales or flea markets, itinerant merchants
Topic
Collection of Tax
Local Taxes Discussion
Date Issued
08-29-2003
August 29, 2003


Dear ***********:

This is in response to your letter in which you request an advisory opinion regarding the application of the Business, Professional and Occupational License (BPOL) tax to individuals who set up "yard sales" or "flea markets" on a regular basis in public spaces and those persons who hold an occasional yard sale on their property.

The local license fee and tax are imposed and administered by local officials. § 58.1-3701 of the Code of Virginia authorizes the Department to issue advisory opinions on local license tax issues. While addressing the questions raised in your letter, this response is intended to provide advisory guidance only, and does not constitute a formal or binding ruling. Any change in the facts or the introduction of facts by another party may lead to a different result.

Copies of the Code of Virginia sections, regulations and public documents cited are available on-line in the Tax Policy Library section of the Department of Taxation's web site, located at www.tax.state.va.us.
FACTS

You state that there are persons in your jurisdiction who hold events similar to "yard sales," in that they offer previously owned goods, wares and merchandise for sale to the public. These persons are described as setting up beside the road or in a parking lot within your jurisdiction during most weekends in the spring, summer and fall, generally selling "previously owned" items. You state that you have classified such persons as "itinerant merchants" and impose a $500 license fee on each. You ask if a person conducting an occasional yard sale of personal items on his own property is also subject to licensure for BPOL tax purposes.
OPINION

An itinerant merchant is defined in Va. Code § 58.1-3717, as any person who engages in, does, or transacts any temporary or transient business in any county, city or town and who, for the purpose of carrying on such business, occupies any location for a period of less than one year. The BPOL tax may be imposed on such merchants and pursuant to a local ordinance, may not exceed $500 per year. See Va. Code §§ 58.1-3700 and 58.1-3717.

For purposes of the BPOL tax, "business" is defined as "a course of dealing which requires the time, attention and labor of the person so engaged for the purpose of earning a livelihood or profit. It implies a continuous and regular course of dealing, rather than an irregular or isolated transaction." See Va. Code § 58.1-3700.1. One who conducts a regular business most weekends of the year can be said to be engaged in business and is subject to the BPOL tax. Conversely, it is clear that one who holds an occasional yard sale on an irregular basis would not be considered to be "engaged in business" and is not subject to BPOL tax.

In an earlier opinion, the Tax Commissioner noted that the "reason for including itinerant merchants under the BPOL statute is so that local retailers who are subject to local licensure as retail merchants are not placed at a competitive disadvantage." See Public Document 01-173 (10/31/2001). This rationale certainly would not apply to an individual conducting an occasional yard sale on an irregular basis.

In conclusion, the BPOL tax is a tax on the privilege of doing business. It is my opinion that a person who conducts an occasional yard sale on an irregular basis is not "engaged in business" as defined in Va. Code § 58.1-3700.1 and, therefore, is not subject to the BPOL tax. On the other hand, one who sets up a flea market beside the road or in a parking lot during most weekends in the spring, summer and fall is engaged in business and is subject to the BPOL tax as provided in the local ordinance pursuant to Va. Code § 58.1-3703.

I hope this has been helpful. If you have any questions regarding this opinion, you may contact ***** in the Department's Office of Policy and Administration, Appeals and Rulings, at *****.
                • Sincerely,

                • Kenneth W. Thorson
                  Tax Commissioner


AR/46022

Rulings of the Tax Commissioner

Last Updated 08/25/2014 16:46