The following words and phrases, when used in this article,
shall have, for the purposes of this article, the following respective
meanings except where the context clearly indicates a different meaning:
Alcoholic and nonalcoholic beverages served as part of a
meal.
A person who furnishes food on the premises of another for
compensation.
The Commissioner of the Revenue of Mathews County and any
of his or her duly authorized deputies, assistants, employees, or
agents.
Any and all edible refreshments or nourishment, liquid or
otherwise, including alcoholic beverages and nonalcoholic beverages
served as part of a meal, meant for refreshment or nourishment value,
purchased in or from a restaurant, convenience store or from a caterer,
except for factory-packaged snack foods, whether consumed on the premises
or not.
Any individual, corporation, company, association, firm,
partnership, or any group of individuals acting as a unit.
Any person who purchases food in or from a restaurant or
from a caterer.
Any place where food is prepared for service to the public,
whether on or off the premises;
Any place where food is served to the public; or
Any place or operation which prepares or stores food for distribution
to persons of the same business operation or of a related business
operation for service to the public.
Examples include: dining room, grill, coffee shop, cafeteria,
cafe, snack bar, lunch counter, lunchroom, short-order place, tavern,
delicatessen, confectionery, bakery, eating house, eatery, drugstore,
catering service, lunch wagon or truck, pushcart or other mobile facility
that sells food, and dining facilities in a public or private club,
resort, bar or lounge, restaurant, convenience store, theatre, and
ice cream/yogurt shops.
Any person who sells food or beverages in or from a restaurant
or as a caterer, and who is required to collect, report, and remit
the tax due pursuant to this article.
Chewing gum, candy, popcorn, peanuts and other nuts, and
unopened prepackaged cookies, donuts, crackers, potato chips, and
other items of essentially the same nature and consumed for essentially
the same purpose.
The Treasurer of Mathews County and any of his or her duly
authorized deputies, assistants, employees, or agents.
In addition to all other taxes and fees of any kind now or hereafter
imposed by law, a tax is hereby levied and imposed on the purchaser
of all food and beverages served, sold, or delivered for human consumption
in the county in or from a restaurant, whether prepared in such restaurant
or not, or prepared by a caterer. Grocery stores and convenience stores
selling prepared foods ready for human consumption at a delicatessen
counter shall also be subject to said tax, but the application of
same shall be limited to such prepared foods. No such tax shall be
imposed on any entity or activity exempted from same by § 58.1-3833A
of the Code of Virginia, 1950, as amended, as well as any other sale
of food which is exempt from taxation under the Virginia Retail Sales
and Use Tax Act,[1] or administrative rules and regulations issued pursuant
thereto. The rate of this tax shall be 4% of the amount paid for such
food. In the computation of this tax, any fraction of $0.005 or more
shall be treated as $0.01, while fractions of less than $0.005 in
sales price shall not be collected.
[1]
Editor's Note: See Code of Virginia, § 58.1-600
et seq.
A.
The tax imposed by this article shall not be levied on the following
items when served exclusively for off-premises consumption:
(1)
Unopened prepackaged snacks, including chewing gum, candy, popcorn,
nuts, donuts, nabs, chips, cookies, crackers and items of essentially
the same nature;
(2)
Food sold in bulk. For the purpose of this section, a "bulk sale"
shall mean the sale of food or beverages that would exceed the normal,
customary and usual portion which would be sold for on-premises consumption
(e.g., a whole cake, a whole pie, a gallon of ice cream, etc.).
(3)
Beverages sold in factory-sealed containers.
B.
A grocery store, supermarket or convenience store shall not be subject to the tax imposed by § 145-90, except that the tax shall be imposed on those portions of such stores which are designated as a delicatessen or designated for the sale of prepared food such as sandwiches or single-meal platters and beverages.
C.
The tax imposed by this article shall not be levied on the following
purchases of food and beverages:
(1)
Food or beverages furnished by restaurants to employees as part of
their compensation when no charge is made to the employee;
(2)
Food or beverages sold by, through, or under the aegis of, nonprofit
day-care centers, public or private schools, colleges, or universities
to their students or employees;
(3)
Food or beverages for use of consumption by the Commonwealth, any
political subdivision thereof, or the United States of America, or
any subdivision thereof.
(4)
Food or beverages furnished to patients or residents by a hospital,
medical clinic, convalescent home, nursing home, home for the aged,
infirm, or handicapped, or other extended care facility;
(5)
Food or beverages furnished by nonprofit charitable organizations,
or churches, to elderly, infirm, handicapped, or needy persons in
their homes, or at central locations;
(6)
Food or beverages sold by a nonprofit educational, charitable, benevolent,
or service club, organization, church or religious body as a fund-raising
activity, the proceeds of which are to be used by such organization
exclusively for nonprofit educational, charitable, benevolent, or
religious purposes;
(7)
Food or beverages sold through vending machines;
(8)
Food or beverages furnished by boardinghouses that do not accommodate
transients;
(9)
Food or beverages sold by cafeterias operated by industrial plants
for employees only;
(10)
Food or beverages sold by volunteer fire departments and rescue
squads; nonprofit churches or other religious bodies; educational,
charitable, fraternal, or benevolent organizations, on an occasional
basis, not exceeding three times per calendar year as a fund-raising
activity, the gross proceeds of which are to be used by such church,
religious body or organization exclusively for nonprofit educational,
charitable, benevolent, or religious purposes;
(11)
Food or beverages served by churches that serve meals for their
members as a regular part of their religious observances;
(12)
Food or beverages served or sold by public or private elementary
or secondary schools, colleges, and universities to their students
or employees;
(13)
Food or beverages provided by hospitals, medical clinics, convalescent
homes, nursing homes, or other extended care facilities to patients
or residents thereof;
(14)
Food or beverages provided by day-care centers;
(15)
Food or beverages furnished by homes for the aged, infirm, handicapped,
battered women, narcotic addicts, or alcoholics; or
(16)
Food or beverages furnished by age-restricted apartment complexes
or residences with restaurants, not open to the public, where meals
are served and fees are charged for such food and beverages and are
included in rental fees.
(17)
Also, the tax shall not be levied on food and beverages:
(a)
When used or consumed and paid for by the Commonwealth, any
political subdivision of the Commonwealth, or the United States; or
(b)
Provided by a public or private nonprofit charitable organization
or establishment to elderly, infirm, blind, handicapped, or needy
persons in their homes, or at central locations; or
(c)
Provided by private establishments that contract with the appropriate
agency of the Commonwealth to offer food, food products, or beverages
for immediate consumption at concession prices to elderly, infirm,
blind, handicapped, or needy persons in their homes or at central
locations.
(18)
Any food or food product purchased for home consumption as defined
in the federal Food Stamp Act of 1977, 7 U.S.C. § 2012,
as amended, except for sandwiches, salad bar items sold from a salad
bar, prepackaged single-serving salads consisting primarily of an
assortment of vegetables, and non-factory-sealed beverages.
Every seller of food with respect to which a tax is levied under
this article shall collect the amount of tax imposed under this article
from the purchaser on whom the same is levied at the time payment
for such food becomes due and payable, whether payment is to be made
in cash, check, or on credit by means of a credit card or otherwise.
The seller shall separately state the amount of such tax, and the
amount of tax owed by the purchaser shall be added to the cost of
the food by the seller, who shall pay the taxes collected to the County
as provided in this article. Taxes collected by the seller shall be
held in trust by the seller until remitted to the County.
Every seller of food with respect to which a tax is levied under
this article shall make out a report upon such forms and setting forth
such information as the Commissioner of the Revenue may prescribe
and require, showing the amount of food charges collected and the
tax required to be collected, and shall sign and deliver such report
to the Treasurer with a remittance of such tax. Such reports and remittance
shall be made on or before the 20th day of each month, covering the
amount of tax collected during the preceding month.
It shall be the duty of any seller of food liable for collection
and remittance of the taxes imposed by this article to keep and preserve
for a period of three years records showing gross sales of all food
and beverages, the amount charged the purchaser of each such purchase,
the date thereof, the date of payment thereof, the taxes collected
thereon and the amount of tax required to be collected by this article.
The Commissioner of the Revenue shall have the power to examine such
records at reasonable times and without unreasonable interference
with the business of the seller for the purpose of administering and
enforcing the provisions of this article and to make copies of all
or any parts thereon.
No seller shall advertise or hold out to the public in any manner,
directly or indirectly, that all or any part of the tax imposed under
this article will be paid or absorbed by the seller or anyone else
or that the seller or anyone else will relieve the purchaser of the
payment of all or any part of the tax.
A.
Where a purchaser provides a tip for an employee or employees of
a seller, and the amount of the tip is wholly in the discretion of
the purchaser, the tip is not subject to the tax imposed by this article,
whether paid in cash to the employee or added to the bill and charged
to the purchaser's account, provided, in the latter case, the full
amount of the tip is turned over to the employee by the seller.
B.
The tax shall not apply to that portion of an amount paid by a purchaser
as a mandatory tip or service charge added by a restaurant in addition
to the sales price, but only to the extent that such mandatory tip
or service charge does not exceed 20% of the sale price.
Whenever any seller required to collect or pay to the County
a tax under this article shall cease to operate or otherwise dispose
of his business, any tax payable under this article shall become immediately
due and payable, and such person shall immediately make a report and
pay the tax due.
The Commissioner of the Revenue shall promulgate rules and regulations
for the interpretation, administration, and enforcement of this article.
It shall also be the duty of the Commissioner of the Revenue to ascertain
the name of every seller liable for the collection of the tax imposed
by this article who fails, refuses, or neglects to collect such tax
or to make the reports and remittances required by this article. The
Commissioner of the Revenue shall have all of the enforcement powers
as authorized by Title 58.1, Chapter 31, Article 1, of the Code of
Virginia, 1950, as amended, for purposes of this article.
If any seller whose duty it is to do so shall fail or refuse
to collect the tax imposed under this article and to make, within
the time provided in this article, the reports and remittances mentioned
in this article, the Commissioner of the Revenue shall proceed in
such manner as he or she may deem best to obtain facts and information
on which to base his or her estimate of the tax due. As soon as the
Commissioner of the Revenue shall procure such facts and information
as he or she is able to obtain upon which to base the assessment of
any tax payable by any seller who has failed or refused to collect
such tax and to make such report and remittance, he or she shall proceed
to determine and assess against such seller the tax, interest and
penalties provided for by this article and shall notify such seller,
by certified or registered mail sent to his or her last known place
of address, of the total amount of such tax penalties and interest,
and the total amount thereof shall be payable within 10 days from
the date such notice is sent.
The Treasurer shall have the power and the duty of collecting
the taxes imposed and levied hereunder and shall cause the same to
be paid into the general treasury for the County.
If any seller whose duty it is to do so shall fail or refuse
to file any report required by this article or to remit to the Treasurer
the tax required to be collected and paid under this article within
the time and in the amount specified in this article, there shall
be added to such tax by the Treasurer a penalty in the amount of $10
or 10% thereof of the tax which has not been timely collected and/or
remitted to the County, whichever amount is greater, and interest
thereon at the rate of 10% per annum, which shall be computed upon
the taxes and penalty due on the first day of the calendar month following
the month in which such taxes became due and payable, which interest
shall be payable by the seller whose duty it is to collect, report
and remit the tax. An additional penalty at the same rate shall be
added for each additional 30 days or fraction thereof during which
such tax is not duly remitted to the County; provided, however, that
the total aggregate penalties shall not exceed the amount of the tax
due.
A.
Any person willfully violating, falsifying, failing, refusing, or
neglecting to comply with any of the provisions of this article shall
be guilty of:
(1)
A Class 3 misdemeanor, as punishable according to the Code of
Virginia, as amended, if the amount of the tax lawfully assessed in
connection with the return is $1,000 or less; or
(2)
A Class 1 misdemeanor, as punishable according to the Code of
Virginia, as amended, if the amount of the tax lawfully assessed in
connection with the return is more than $1,000.
B.
Conviction of such violation shall not relieve any person from the
payment, collection, or remittance of the tax penalties or interest
provided for in this article. Any agreement by any person to pay the
taxes prescribed by this article by a series of installment payments
shall not relieve any person of criminal liability for violation of
this article until the full amount of taxes agreed to be paid by such
person is received. Each failure, refusal, neglect or violation and
each day's continuance thereof shall constitute a separate offense.
Pursuant to the authority of § 58.1-3816.1 of the Code of Virginia, 1950, as amended, the County hereby allows any and all businesses charged with the collection of this tax a commission for such service. Such commission shall be 2.5% of the amount of tax due and accounted for, and such commission shall be deducted from the tax remitted. No commission shall be allowed if the amount of tax due was not remitted to the Treasurer prior to the time limit specified in § 145-93 of this article.
The revenues collected from the tax shall be designated to a
capital improvement fund for Mathews County, Mathews County schools
and public safety purchases and projects.
