[HISTORY: Adopted by the Town Council of
the Town of Mineral effective 1-1-1982 as Ch. 11 of the 1982 Code; amended in its entirety 10-14-2008 by Ord. No.
2008-02. Subsequent amendments noted where applicable.]
Except as may be otherwise provided by the laws
of the Commonwealth of Virginia, and notwithstanding any other current
ordinances or resolutions enacted by this governing body, whether
or not compiled in the Code of the Town of Mineral, to the extent
of any conflict, the following provisions shall be applicable to the
levy, assessment, and collection of licenses required and taxes imposed
on businesses, trades, professions and callings and upon the persons,
firms and corporations engaged therein within the Town of Mineral.
For the purposes of this article, unless otherwise
required by the context, the following terms shall have the meanings
indicated:
One or more chains of includable corporations
connected through stock ownership with a common parent corporation
which is an includable corporation if:
Stock possessing at least 80% of the voting
power of all classes of stock and at least 80% of each class of the
nonvoting stock of each of the includable corporations, except the
common parent corporation, is owned directly by one or more of the
other includable corporations; and
The common parent corporation directly owns
stock possessing at least 80% of the voting power of all classes of
stock and at least 80% of each class of the nonvoting stock of at
least one of the other includable corporations. As used in this subsection,
the term "stock" does not include nonvoting stock which is limited
and preferred as to dividends. The term "includable corporation" means
any corporation within the affiliated group irrespective of the state
or country of its incorporation, and the term "receipts" includes
gross receipts and gross income.
Two or more corporations if five or fewer persons
who are individuals, estates or trusts own stock possessing:
At least 80% of the total combined voting power
of all classes of stock entitled to vote or at least 80% of the total
value of shares of all classes of the stock of each corporation; and
More than 50% of the total combined voting power
of all classes of stock entitled to vote or more than 50% of the total
value of shares of all classes of stock of each corporation, taking
into account the stock ownership of each such person only to the extent
such stock ownership is identical with respect to each such corporation.
When one or more of the includable corporations,
including the common parent corporation, is a nonstock corporation,
the term "stock" as used in this subsection shall refer to the nonstock
corporation membership or membership voting rights, as is appropriate
to the context.
A determination as to the proper rate of tax, the measure
to which the tax rate is applied, and ultimately the amount of tax,
including additional or omitted tax, that is due. An assessment shall
include a written assessment made pursuant to notice by the assessing
official or a self-assessment made by a taxpayer upon the filing of
a return or otherwise not pursuant to notice. Assessments shall be
deemed made by an assessing official when a written notice of assessment
is delivered to the taxpayer by the assessing official or an employee
of the assessing official or mailed to the taxpayer at his last known
address. Self-assessments shall be deemed made when a return is filed
or, if no return is required, when the tax is paid. A return filed
or tax paid before the last day prescribed by ordinance for the filing
or payment thereof shall be deemed to be filed or paid on the last
day specified for the filing of a return or the payment of tax, as
the case may be.
The Treasurer of the Town of Mineral.
The calendar year preceding the license year, except for
contractors subject to the provisions of § 58.1-3715 of
the Code of Virginia.
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. A person may be
engaged in more than one business. The following acts shall create
a rebuttable presumption that a person is engaged in a business:
The meaning prescribed in § 58.1-3714B of the Code
of Virginia, as amended, whether such work is done or offered to be
done by day labor, general contract or subcontract.
An office or a location at which occurs a regular and continuous
course of dealing for 30 consecutive days or more. A definite place
of business for a person engaged in business may include a location
leased or otherwise obtained from another person on a temporary or
seasonal basis and real property leased to another. A person's residence
shall be deemed to be a definite place of business if there is no
definite place of business maintained elsewhere and the person is
not licensable as a peddler or itinerant merchant.
The buying, selling, handling, managing, investing, and providing
of advice regarding money, credit, securities and other investments
and shall include the service for compensation by a credit agency,
an investment company, a broker or dealer in securities and commodities
or a security or commodity exchange, unless such service is otherwise
provided for in this article.
BROKERAn agent of a buyer or a seller who buys or sells stocks, bonds, commodities, or services, usually on a commission basis.
COMMODITYStaples such as wool, cotton, etc., which are traded on a commodity exchange and on which there is trading in futures.
DEALERAny person engaged in the business of buying and selling securities for his own account, but does not include a bank, or any person insofar as he buys or sells securities for his own account, either individually or in some fiduciary capacity, but not as part of a regular business.
SECURITYFor purposes of this article shall have the same meaning as in the Securities Act (§ 13.1-501 et seq.) of the Code of Virginia, or in similar laws of the United States regulating the sale of securities.
Those engaged in rendering financial services
include, but without limitation, the following:
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Buying installment receivables
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Chattel mortgage financing
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Consumer financing
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Credit card services
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Credit unions
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Factors
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Financing accounts receivable
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Industrial loan companies
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Installment financing
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Inventory financing
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Loan or mortgage brokers
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Loan or mortgage companies
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Safety deposit box companies
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Security and commodity brokers and services
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Stockbroker
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Working capital financing
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The whole, entire, total receipts attributable to the licensed
privilege, without deduction, except as may be limited by the provisions
of Chapter 37 of Title 58.1 of the Code of Virginia.
The calendar year for which a license is issued for the privilege
of engaging in business.
Rendering for compensation any repair, personal, business
or other services not specifically classified as financial, real estate
or professional service under this article or rendered in any other
business or occupation not specifically classified in this article
unless exempted from local license tax by Title 58.1 of the Code of
Virginia.
Services performed by architects, attorneys at law, certified
public accountants, dentists, engineers, land surveyors, surgeons,
veterinarians, and practitioners of the healing arts (the arts and
sciences dealing with the prevention, diagnosis, treatment and cure
or alleviation of human physical or mental ailments, conditions, diseases,
pain or infirmities) and such occupations, and no others, as the Virginia
Department of Taxation may list in the BPOL guidelines promulgated
pursuant to § 58.1-3701 of the Code of Virginia. The Department
shall identify and list each occupation or vocation in which a professed
knowledge of some department of science or learning, gained by a prolonged
course of specialized instruction and study, is used by its practical
application to the affairs of others, either advising, guiding, or
teaching them, and in serving their interests or welfare in the practice
of an art or science founded on it. The word "profession" implies
attainments in professional knowledge as distinguished from mere skill,
and the application of knowledge to uses for others rather than for
personal profit.
All goods, wares and merchandise received for sale at each
definite place of business of a wholesale merchant. The term shall
also include the cost of manufacture of all goods, wares and merchandise
manufactured by any wholesaler or wholesale merchant and sold or offered
for sale. Such merchant may elect to report the gross receipts from
the sale of manufactured goods, wares and merchandise if it cannot
determine or chooses not to disclose the cost of manufacture.
Rendering a service for compensation as lessor, buyer, seller,
agent or broker and providing a real estate service, unless the service
is otherwise specifically provided for in this article, and such services
include, but are not limited to, the following:
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Appraisers of real estate
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Escrow agents, real estate
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Fiduciaries, real estate
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Lessors of real property
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Real estate agents, brokers and managers
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Real estate selling agents
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Rental agents for real estate
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Any person or merchant who sells goods, wares and merchandise
for use or consumption by the purchaser or for any purpose other than
resale by the purchaser, but does not include sales at wholesale to
institutional, commercial and industrial users.
Things purchased by a customer which do not have physical
characteristics or which are not goods, wares, or merchandise.
Any person or merchant who sells wares and merchandise for
resale by the purchaser, including sales when the goods, wares and
merchandise will be incorporated into goods and services for sale,
and also includes sales to institutional, commercial, government and
industrial users which because of the quantity, price, or other terms
indicate that they are consistent with sales at wholesale.
A.
License required; separate license for each business.
(1)
Every person engaging in the Town of Mineral in any
business, trade, profession, occupation or calling (collectively hereinafter
"a business") as defined in this article, unless otherwise exempted
by law, shall apply for a license for each such business if:
(a)
Such person maintains a definite place of business
in the Town of Mineral;
(b)
Such person does not maintain a definite office
anywhere but does maintain an abode in the Town of Mineral, which
abode for the purposes of this article shall be deemed a definite
place of business; or
(c)
There is no definite place of business but such
person operates amusement machines, is engaged as a peddler or itinerant
merchant, carnival or circus as specified in § 58.1-3717,
58.1-3718 or 58.1-3728, respectively, of the Code of Virginia, or
is a contractor subject to § 58.1-3715 of the Code of Virginia,
or is a public service corporation subject to § 58.1-3731
of the Code of Virginia.
(2)
A separate license shall be required for each definite
place of business. A person engaged in two or more businesses or professions
carried on at the same place of business may elect to obtain one license
for all such businesses and professions if all of the following criteria
are satisfied:
(a)
Each business or profession is licensable at
the location and has satisfied any requirements imposed by state law
or other provisions of the ordinances of the Town of Mineral;
(b)
All of the businesses or professions are subject
to the same tax rate, or, if subject to different tax rates, the licensee
agrees to be taxed on all businesses and professions at the highest
rate; and
(c)
The taxpayer agrees to supply such information
as the assessor may require concerning the nature of the several businesses
and their gross receipts.
B.
Each person subject to a license tax shall apply for
a license prior to beginning business, if he was not subject to licensing
in the Town of Mineral on or before January 1 of the license year,
or no later than March 1 of the current license year if he had been
issued a license for the preceding license year. The application shall
be on forms prescribed by the assessing official. (Every locality
must adopt a March 1 due date for applications no later than the 2001
license year.)
C.
The tax shall be paid with the application in the
case of any license not based on gross receipts. If the tax is measured
by the gross receipts of the business, the tax shall be paid on or
before June 30.
D.
The assessing official may grant an extension of time,
not to exceed 90 days, in which to file an application for a license,
for reasonable cause. The extension shall be conditioned upon the
timely payment of a reasonable estimate of the appropriate tax, subject
to adjustment to the correct tax at the end of the extension together
with interest from the due date until the date paid and, if the estimate
submitted with the extension is found to be unreasonable under the
circumstances, a penalty of 10% of the portion paid after the due
date.
E.
A penalty of 10% of the tax may be imposed upon the
failure to file an application or the failure to pay the tax by the
appropriate due date. Only the late filing penalty shall be imposed
by the assessing official if both the application and payment are
late; however, both penalties may be assessed if the assessing official
determines that the taxpayer has a history of noncompliance. In the
case of an assessment of additional tax made by the assessing official,
if the application and, if applicable, the return were made in good
faith and the understatement of the tax was not due to any fraud or
reckless or intentional disregard of the law by the taxpayer, there
shall be no late payment penalty assessed with the additional tax.
If any assessment of tax by the assessing official is not paid within
30 days, the Treasurer may impose a ten-percent late payment penalty.
The penalties shall not be imposed or, if imposed, shall be abated
by the official who assessed them if the failure to file or pay was
not the fault of the taxpayer. In order to demonstrate lack of fault,
the taxpayer must show that he acted responsibly and that the failure
was due to events beyond his control.
(1)
"Acted responsibly" means that:
(a)
The taxpayer exercised the level of reasonable
care that a prudent person would exercise under the circumstances
in determining the filing obligations for the business; and
(b)
The taxpayer undertook significant steps to
avoid or mitigate the failure, such as requesting appropriate extensions
(where applicable), attempting to prevent a foreseeable impediment,
acting to remove an impediment once it occurred, and promptly rectifying
a failure once the impediment was removed or the failure discovered.
(2)
"Events beyond the taxpayer's control" include, but
are not limited to, the unavailability of records due to fire or other
casualty; the unavoidable absence (e.g., due to death or serious illness)
of the person with the sole responsibility for tax compliance; or
the taxpayer's reasonable reliance in good faith upon erroneous written
information from the assessing official, who was aware of the relevant
facts relating to the taxpayer's business when he provided the erroneous
information.
F.
Interest shall be charged on the late payment of the
tax from the due date until the date paid without regard to fault
or other reason for the late payment. Whenever an assessment of additional
or omitted tax by the assessing official is found to be erroneous,
all interest and penalty charged and collected on the amount of the
assessment found to be erroneous shall be refunded together with interest
on the refund from the date of payment or the due date, whichever
is later. Interest shall be paid on the refund of any tax paid under
this article from the date of payment or due date, whichever is later,
whether attributable to an amended return or other reason. Interest
on any refund shall be paid at the same rate charged under § 58.1-3916
of the Code of Virginia. No interest shall accrue on an adjustment
of estimated tax liability to actual liability at the conclusion of
a base year. No interest shall be paid on a refund or charged on a
late payment, in the event of such adjustment, provided the refund
or the late payment is made not more than 30 days from the date of
the payment that created the refund or the due date of the tax, whichever
is later.
A.
General rule. Whenever the tax imposed by this article
is measured by gross receipts, the gross receipts included in the
taxable measure shall be only those gross receipts attributed to the
exercise of a licensable privilege at a definite place of business
within the Town of Mineral. In the case of activities conducted outside
of a definite place of business, such as during a visit to a customer
location, the gross receipts shall be attributed to the definite place
of business from which such activities are initiated, directed, or
controlled. The situs of gross receipts for different classifications
of business shall be attributed to one or more definite places of
business or offices as follows:
(1)
The gross receipts of a contractor shall be attributed
to the definite place of business at which his services are performed,
or if his services are not performed at any definite place of business,
then the definite place of business from which his services are directed
or controlled, unless the contractor is subject to the provisions
of § 58.1-3715 of the Code of Virginia.
(2)
The gross receipts of a retailer or wholesaler shall
be attributed to the definite place of business at which sales solicitation
activities occur, or if sales solicitation activities do not occur
at any definite place of business, then the definite place of business
from which sales solicitation activities are directed or controlled;
however, a wholesaler or distribution house subject to a license tax
measured by purchases shall determine the situs of its purchases by
the definite place of business at which or from which deliveries of
the purchased goods, wares and merchandise are made to customers.
Any wholesaler who is subject to license tax in two or more localities
and who is subject to multiple taxation because the localities use
different measures may apply to the Department of Taxation for a determination
as to the proper measure of purchases and gross receipts subject to
license tax in each locality.
(3)
The gross receipts of a business renting tangible
personal property shall be attributed to the definite place of business
from which the tangible personal property is rented or, if the property
is not rented from any definite place of business, then the definite
place of business at which the rental of such property is managed.
(4)
The gross receipts from the performance of services
shall be attributed to the definite place of business at which the
services are performed or, if not performed at any definite place
of business, then the definite place of business from which the services
are directed or controlled.
B.
Apportionment. If the licensee has more than one definite
place of business and it is impractical or impossible to determine
to which definite place of business gross receipts should be attributed
under the general rule (and the affected jurisdictions are unable
to reach an apportionment agreement), except as to circumstances set
forth in § 58.1-3709 of the Code of Virginia, the gross
receipts of the business shall be apportioned between the definite
places of businesses on the basis of payroll. Gross receipts shall
not be apportioned to a definite place of business unless some activities
under the applicable general rule occurred at, or were controlled
from, such definite place of business. Gross receipts attributable
to a definite place of business in another jurisdiction shall not
be attributed to the Town of Mineral solely because the other jurisdiction
does not impose a tax on the gross receipts attributable to the definite
place of business in such other jurisdiction.
C.
Agreements. The assessor may enter into agreements
with any other political subdivision of Virginia concerning the manner
in which gross receipts shall be apportioned among definite places
of business. However, the sum of the gross receipts apportioned by
the agreement shall not exceed the total gross receipts attributable
to all of the definite places of business affected by the agreement.
Upon being notified by a taxpayer that its method of attributing gross
receipts is fundamentally inconsistent with the method of one or more
political subdivisions in which the taxpayer is licensed to engage
in business and that the difference has or is likely to result in
taxes on more than 100% of its gross receipts from all locations in
the affected jurisdictions, the assessor shall make a good faith effort
to reach an apportionment agreement with the other political subdivisions
involved.
A.
Where, before the expiration of the time prescribed
for the assessment of any license tax imposed pursuant to this article,
both the assessing official and the taxpayer have consented in writing
to its assessment after such time, the tax may be assessed at any
time prior to the expiration of the period agreed upon. The period
so agreed upon may be extended by subsequent agreements in writing
made before the expiration of the period previously agreed upon.
B.
Notwithstanding § 58.1-3903 of the Code
of Virginia, the assessing official shall assess the local license
tax omitted because of fraud or failure to apply for a license for
the current license year and the six preceding years.
C.
The period for collecting any local license tax shall not expire prior to the period specified in § 58.1-3940 of the Code of Virginia, two years after the date of assessment if the period for assessment has been extended pursuant to this section, two years after the final determination of an appeal for which collection has been stayed pursuant to the following § 265-6B or D of this article, or two years after the final decision in a court application pursuant to § 58.1-3984 of the Code of Virginia or similar law for which collection has been stayed, whichever is later.
A.
Any person assessed with a licensing tax under this
article as the result of an audit may apply within 90 days from the
date of the assessment to the assessing official for a correction
of the assessment. The application must be filed in good faith and
sufficiently identify the taxpayer, audit period, remedy sought, each
alleged error in the assessment, the grounds upon which the taxpayer
relies, and any other facts relevant to the taxpayer's contention.
The assessor may hold a conference with the taxpayer if requested
by the taxpayer or require submission of additional information and
documents, further audit, or other evidence deemed necessary for a
proper and equitable determination of the applications. The assessment
shall be deemed prima facie correct. The assessor shall undertake
a full review of the taxpayer's claims and issue a determination to
the taxpayer setting forth its position. Every assessment pursuant
to an audit shall be accompanied by a written explanation of the taxpayer's
right to seek correction and the specific procedure to be followed
in the jurisdiction (e.g., the name and address to which an application
should be directed).
B.
Provided an application is made within 90 days of an assessment, collection activity shall be suspended until a final determination is issued by the assessor, unless the assessor determines that collection would be jeopardized by delay or that the taxpayer has not responded to a request for relevant information after a reasonable time. Interest shall accrue in accordance with the provisions of § 265-3F of this article, but no further penalty shall be imposed while collection action is suspended. The term "jeopardized by delay" includes a finding that the application is frivolous or that a taxpayer desires:
C.
Any person assessed with a license tax under this article as a result of an audit may apply within 90 days of the determination by the assessing official on an application pursuant to Subsection A above to the Tax Commissioner for a correction of such assessment. The Tax Commissioner shall issue a determination to the taxpayer within 90 days of receipt of the taxpayer's application, unless the taxpayer and the assessing official are notified that a longer period will be required. The application shall be treated as an application pursuant to § 58.1-1821 of the Code of Virginia, and the Tax Commissioner may issue an order correcting such assessment pursuant to § 58.1-1822 of the Code of Virginia. Following such an order, either the taxpayer or the assessing official may apply to the appropriate circuit court pursuant to § 58.1-3984 of the Code of Virginia. However, the burden shall be on the party making the application to show that the ruling of the Tax Commissioner is erroneous. Neither the Tax Commissioner nor the Department of Taxation shall be made a party to an application to correct an assessment merely because the Tax Commissioner has ruled on it.
D.
On receipt of a notice of intent to file an appeal to the Tax Commissioner under Subsection C above, the assessing official shall further suspend collection activity until a final determination is issued by the Tax Commissioner, unless the assessor determines that collection would be jeopardized by delay or that the taxpayer has not responded to a request for relevant information after a reasonable time. Interest shall accrue in accordance with the provisions of § 265-3F, but no further penalty shall be imposed while collection action is suspended. The term "jeopardized by delay" shall have the same meaning as set forth in Subsection B above.
E.
Any taxpayer may request a written ruling regarding
the application of the tax to a specific situation from the assessor.
Any person requesting such a ruling must provide all the relevant
facts for the situation and may present a rationale for the basis
of an interpretation of the law most favorable to the taxpayer. Any
misrepresentation or change in the applicable law or the factual situation
as presented in the ruling request shall invalidate any such ruling
issued. A written ruling may be revoked or amended prospectively if
there is a change in the law or a court decision or the assessor notifies
the taxpayer of a change in the policy or interpretation upon which
the ruling was based. However, any person who acts on a written ruling
which later becomes invalid shall be deemed to have acted in good
faith during the period in which such ruling was in effect.
Every person who is assessable with a license
tax shall keep sufficient records to enable the assessor to verify
the correctness of the tax paid for the license years assessable and
to enable the assessor to ascertain what is the correct amount of
tax that was assessable for each of those years. All such records,
books of accounts and other information shall be open to inspection
and examination by the assessor in order to allow the assessor to
establish whether a particular receipt is directly attributable to
the taxable privilege exercised within the Town of Mineral. The assessor
shall provide the taxpayer with the option to conduct the audit in
the taxpayer's local business office, if the records are maintained
there. In the event the records are maintained outside the Town of
Mineral, copies of the appropriate books and records shall be sent
to the assessor's office upon demand.
A.
General rule. Gross receipts for license tax purposes
shall not include any amount not derived from the exercise of the
licensed privilege to engage in a business or profession in the ordinary
course of the business or profession.
B.
The following items shall be excluded from gross receipts:
(1)
Amounts received and paid to the United States, the
commonwealth or any county, city or town for the Virginia retail sales
or use tax, or for any local sales tax or any local excise tax on
cigarettes, or for any federal or state excise taxes on motor fuels.
(2)
Any amount representing the liquidation of a debt
or conversion of another asset to the extent that the amount is attributable
to a transaction previously taxed (e.g., the factoring of accounts
receivable created by sales which have been included in taxable receipts
even though the creation of such debt and factoring are a regular
part of its business).
(3)
Any amount representing returns and allowances granted
by the business to its customer.
(4)
Receipts which are the proceeds of a loan transaction
in which the licensee is the obligor.
(5)
Receipts representing the return of principal of a
loan transaction in which the licensee is the creditor, or the return
of principal or basis upon the sale of a capital asset.
(6)
Rebates and discounts taken or received on account
of purchases by the licensee. A rebate or other incentive offered
to induce the recipient to purchase certain goods or services from
a person other than the offeror and which the recipient assigns to
the licensee in consideration of the sale of goods and services shall
not be considered a rebate or discount to the licensee but shall be
included in the licensee's gross receipts together with any handling
or other fees related to the incentive.
(7)
Withdrawals from inventory for purposes other than
sale or distribution and for which no consideration is received and
the occasional sale or exchange of assets other than inventory, whether
or not a gain or loss is recognized for federal income tax purposes.
(8)
Investment income not directly related to the privilege
exercised by a licensable business not classified as rendering financial
services. This exclusion shall apply to interest on bank accounts
of the business and to interest, dividends and other income derived
from the investment of its own funds in securities and other types
of investments unrelated to the licensed privilege. This exclusion
shall not apply to interest, late fees and similar income attributable
to an installment sale or other transaction that occurred in the regular
course of business.
C.
The following shall be deducted from gross receipts
or gross purchases that would otherwise be taxable:
(1)
Any amount paid for computer hardware and software
that are sold to a United States federal or state government entity,
provided that such property was purchased within two years of the
sale to said entity by the original purchaser who shall have been
contractually obligated at the time of purchase to resell such property
to a state or federal government entity. This deduction shall not
occur until the time of resale and shall apply to only the original
cost of the property and not to its resale price, and the deduction
shall not apply to any of the tangible personal property which was
the subject of the original resale contract if it is not resold to
a state or federal government entity in accordance with the original
contract obligation.
(2)
Any receipts attributable to business conducted in
another state or foreign country in which the taxpayer is liable for
an income or other tax based upon income.
A.
Every person or business subject to licensure under
this article shall be assessed and required to pay annually a fee
for the issuance of such license in the amount of $25 or, except as
may be otherwise provided in §§ 58.1-3712, 58.1-3712.1
and 58.1-3713 of the Code of Virginia, every such person or business
shall be assessed and required to pay annually a license tax of $0.14
per $100 of gross receipts, or the maximum otherwise authorized by
law, whichever is less.
B.
Notwithstanding anything to the contrary contained herein, during any license year where any such person or business has paid the license fee as described in Subsection A and the license tax as assessed for such person or business by reference to this article for said license year does not exceed the amount of the license fee, then no additional license tax shall be due and owing. Provided, further, where the license tax for such person or business for said license year exceeds the amount of the license fee, such person or business shall be given a credit in the amount of the license fee paid towards the license tax so assessed for said license year.
