Definite place of business; Independent truck driver
Local Power to Tax
January 17, 1997
Re: Request for Advisory Opinion: BPOL
This will respond to your letter transmitted by tax on January 9, 1997 requesting an advisory opinion.
The license tax is a local tax which is imposed and administered by local officials. The Code of Virginia limits the involvement of the Department of Taxation to promulgating guidelines and issuing advisory opinions. This response is intended to provide guidance only and does not constitute a formal or binding ruling.
An independent truck driver, who resides in the City of ***** contracts with one company located in the City for all of its hauling business. In virtually all cases, the company contacts the hauler for hauling jobs while on the road via cellular phone. In most of the hauling jobs, goods are picked up and delivered outside the Commonwealth. Although no hauling jobs are performed in the City of ***** , the truck driver's rig is parked there when he is off duty. The hauler is not licensed in any Virginia locality and disagrees with the City of **** that he should be subject to licensure there.
In accordance with the uniform ordinance provisions, § 58.1-3703.1 Code of Virginia, every local ordinance imposing a license tax must contain a provision substantially similar to the following:
- License requirement. Every person shall apply for a license for each business or profession when engaging in a business in this jurisdiction if...(ii) there is no definite place of business anywhere and the person resides in this jurisdiction...
In light of this provision, the City of *****may impose a license tax on the hauler if two conditions are met. First, the hauler must be "engaged in business" in the City of *****and secondly, the hauler must reside in the City and have no definite place of business in any other jurisdiction. I will address each of these issues.
Under the definitions set out in § 58.1-3700 Code of Virginia, an individual is engaged in business if he is engaged in a regular and continuous course of dealing that requires his time, attention and labor for the purposes of earning a livelihood. Under the facts presented, it is clear that the hauler is engaged in the business of hauling goods as an independent over-the-road hauler. Although the majority of his hauling routes are entirely outside the Commonwealth, all of his work assignments originate with the*****company. For convenience and efficiency, he maintains contact with the office via cellular phone, but the availability of this technology does not alter the fact the hauler's business transactions are negotiated and controlled from***** and that his business is inextricably linked to that location. Given these facts, the hauler is engaged in business in the City of ********.
While the hauler is engaged in business in *** and resides there, he has no "definite place of business" in **or at any particular location. His services are rendered over-the-road rather than at any definite place of business. Based on the foregoing discussion: i.e. that the hauler resides in*** that he is engaged in business in *** and that he has no definite place of business at any location; I conclude that the hauler should be subject to local license taxes in the City of pursuant, to § 58.1-3703.1 Code of Virginia.
I hope that the above information will be beneficial to you. Although I believe this letter conforms with the law, it is written only for your guidance. If you have any further questions or comments, please do not hesitate to let me know.
Danny M. Payne