[Adopted 9-14-2023]
This article shall be known and may be cited as the "Northumberland
County Cigarette Tax Ordinance."
For the purposes of this article, the following words and phrases
have the meanings respectively ascribed to them by this section, except
in those instances where the context clearly indicates a different
meaning:
The individual employed by the Board to administer the enforcement
of this article, or his designated agents or appointees.
The Chesapeake Bay Region Cigarette Tax Board.
Any container, regardless of material used in its construction,
in which packages of cigarettes are placed.
Any roll of any size or shape for smoking, whether filtered
or unfiltered, with or without a mouthpiece, made wholly or partly
of cut, shredded or crimped tobacco or other plant or substitute for
tobacco, whether the same is flavored, adulterated or mixed with another
ingredient, if the wrapper or cover is made of any material other
than leaf tobacco or homogenized leaf tobacco, regardless of whether
the roll is labeled or sold as a cigarette or by any other name.
Any individual, partnership or corporation engaged in the
sale of packages of cigarettes from vending machines.
Northumberland County, Virginia.
Every manufacturer's representative, wholesaler, retailer,
cigarette machine operator, public warehouseman or other person who
shall sell, receive, store, possess, distribute, or transport cigarettes
within or into the County.
Any container, regardless of the material used in its construction,
in which separate cigarettes are placed without such cigarettes being
placed into any container within the package. Packages are those containers
of cigarettes from which they are consumed by their ultimate user.
Ordinarily, a package contains 20 cigarettes; however, "package" includes
those containers in which fewer or more than 20 cigarettes are placed.
Any individual, firm, unincorporated association, company,
corporation, joint stock company, group, agency, syndicate, trust
or trustee, receiver, fiduciary, partnership, and conservator. The
word "person," as applied to a partnership, unincorporated association
or other joint venture means the partners or members thereof, and
as applied to a corporation, includes all the officers and directors
thereof.
Any place where cigarettes are sold, placed, stored, offered
for sale, or displayed for sale or where cigarettes are brought or
kept for the purpose of sale, consumption or distribution, including
vending machines, by a dealer within the County.
Every dealer and other person who shall be required to report
and collect the tax on cigarettes under the provisions of this article.
Every person who, in the usual course of business, purchases
or receives cigarettes from any source whatsoever for the purpose
of sale within the County to the ultimate consumer; or any person
who, in the usual course of business, owns, leases or otherwise operates
within his own place of business, one or more cigarette vending machines
for the purpose of sale within the County of cigarettes to the ultimate
consumer; or any person who, in any manner, buys, sells, stores, transfers
or deals in cigarettes for the purpose of sale within the County to
the ultimate consumer, who is not licensed as a wholesaler or vending
machine operator.
Every act or transaction, regardless of the method or means
employed, including barter, exchange or the use of vending machines
or other mechanical devices or a criminal or tortious act whereby
either ownership or possession, or both, of any cigarettes shall be
transferred within the County from a dealer as herein defined to any
other person for a consideration.
A small, gummed piece of paper or decal used to evidence
provision for payment of the tax as authorized by the Chesapeake Bay
Region Cigarette Tax Board, required to be affixed to every package
of cigarettes sold, distributed, or used within the County.
The keeping or retention of cigarettes in this County for
any purpose except sale in the regular course of business.
Persons authorized by CBRCTB to act on its behalf in enforcement
of this article.
The exercise of any right or power over any cigarettes or
packages of cigarettes incident to the ownership or possession of
those cigarettes or packages of cigarettes, including any transaction
where possession is given or received or otherwise transferred, other
than a sale.
Any person who exercises any right or power over any cigarettes
or packages of cigarettes subject to the provisions of this article
incident to the ownership or possession of those cigarettes or packages
of cigarettes or any transaction where possession is given or received
or otherwise transferred, other than a sale.
Any individual, partnership or corporation engaged in the
sale of packages of cigarettes for resale into or within the County.
In addition to all other taxes of every kind now or hereafter
imposed by law, there is hereby levied and imposed by the County upon
every person who sells or uses cigarettes within the County an excise
tax at a rate of $0.40 for each package containing 20 cigarettes and
$0.02 for each cigarette contained in packages of fewer or more than
20 cigarettes sold or used within the County. The tax shall be paid
and collected in the manner and at the time hereinafter prescribed;
provided, that the tax payable for each cigarette or cigarette package
sold or used within the County shall be paid but once.
A.
The tax imposed by this article shall be evidenced by the use of
a tax stamp and shall be paid by each dealer or other person liable
for the tax. The stamps shall be affixed in such a manner that their
removal will require continued application of water or steam. Each
dealer or other person liable for the tax is hereby required, and
it shall be his duty, to collect, pay the tax and report on a monthly
basis all packages of cigarettes on forms prescribed for this purpose
by the Board, including the following:
(2)
The quantity of CBRCTB stamps on hand, both affixed and unaffixed
on the first and the last day of the preceding calendar month and
the quantity of CBRCTB stamps or CBRCTB stamped cigarettes received
during the preceding calendar month;
(3)
The quantity of cigarettes on hand to which the CBRCTB stamp had
not been affixed on the first and last day of the preceding calendar
or fiscal month and the quantity of cigarettes received during the
preceding calendar or fiscal month to which the CBRCTB stamp had not
been affixed; and
(4)
Such further information as the Administrator for the Board may require
for the proper administration and enforcement of this article for
the determination of the exact number of cigarettes in the possession
of each dealer or user.
B.
Each dealer or other person liable for the tax shall file such reports
with the Board and pay the tax due to the Board prior to the monthly
due date to be established by the Board and shall furnish copies of
all cigarette tax reports submitted to the Virginia Department of
Taxation.
C.
When, upon examination and audit of any invoices, records, books,
canceled checks or other memoranda touching on the purchase, sale,
receipt, storage or possession of tobacco products taxed herein, any
dealer or other person liable for the tax is unable to furnish evidence
to the Board of sufficient tax payments and stamp purchases to cover
cigarettes which were sold, used, stored, received, purchased or possessed
by such person, the prima facie presumption shall arise that such
cigarettes were received, sold, used, stored, purchased or possessed
by such person without the proper tax having been paid. The Board
shall, from the results of such examination and audit based upon such
direct or indirect information available, assess the tax due, impose
a penalty of 10% and may impose interest of 3/4% per month of the
gross tax due.
D.
When any dealer or other person liable for the tax files a false
or fraudulent report or fails to file a report or fails to perform
any act or performs any act to evade payment of the tax, the Board
shall administratively assess the tax due and impose a penalty not
to exceed 50% of the tax due and interest of 3/4% per month of the
gross tax due.
E.
The dealer or other person liable for the tax shall be notified by
certified mail of such deficiency and such tax, penalty and interest
assessed shall be due and payable within 10 days after notice of such
deficiency has been issued. Every dealer or other person liable for
the tax shall examine each package of cigarettes to ensure that the
CBRCTB stamp has been affixed thereto prior to offering them for sale.
F.
Any dealer or other person liable for the tax who shall receive cigarettes
not bearing the CBRCTB stamp shall, within receipt of such cigarettes,
commence and with all reasonable diligence continue to affix the CBRCTB
stamp to each and every package of cigarettes until all unstamped
packages of cigarettes have been stamped and before offering such
cigarettes for sale. Any dealer or other person liable for the tax
who has notified the Board that he is engaged in interstate or intrastate
business shall be permitted to set aside such part of his stock as
may be legally kept for the conduct of such interstate or intrastate
business (that is, cigarettes held for sale outside the jurisdiction
of the Board) without affixing the stamps required by this article.
Any such interstate or intrastate stock shall be kept entirely separate
and apart from the CBRCTB-stamped stock, in such a manner as to prevent
the commingling of the interstate or intrastate stock with the CBRCTB
stock. Any dealer or other person liable for the tax found to have
had untaxed cigarettes which have been lost, whether by negligence,
theft or any other unaccountable loss, shall be liable for and shall
pay the tax due thereon.
G.
It shall also be the duty of each dealer or other person liable for
the tax to maintain and keep for a period of three years, not including
the current calendar year, records of all cigarettes received, sold,
stored, possessed, transferred or handled by such person in any manner
whatsoever, whether the same were stamped or unstamped, to make all
such records available for audit, inspection and examination at all
reasonable times, as well as the means, facilities and opportunity
for making such audit, inspection or examination upon demand of the
Board.
A.
Any dealer or other person liable for the tax who shall sell, use,
store, possess, distribute or transport cigarettes within or into
the County shall first make application to the Board to qualify as
a registered agent. The application form shall require such information
as the Board deems necessary for the administration and enforcement
of this article. Applications shall be subject to yearly registration
fees for all wholesale dealers and all cigarette machine operators.
Applicants shall provide a surety bond to the Board in the amount
of 150% of the applicant's average monthly tax liability. Such
bonds shall be issued by a surety company authorized to do business
in the Commonwealth of Virginia. Such bond shall be so written that,
on timely payment of the premium thereon, it shall continue in force
from year to year. Any applicant whose place of business is outside
the area subject to enforcement by the Board shall automatically,
by filing virtue of filing of the application, be deemed to submit
to the Board's legal jurisdiction and appoint the Administrator
for the Board as agent for any service of lawful process, unless the
applicant designates an attorney with offices within the County upon
which lawful process is to be served. Upon receipt of properly completed
application forms and the required surety bond, the Board shall determine
whether the applicant qualifies to be a registered agent. The Board
will issue to qualified applicants a yearly registered agent permit
to enable such agent to purchase, sell, use, store, possess, distribute
or transport within or into the County, CBRCTB-stamped cigarettes.
B.
By submitting an application, registered agents obligate themselves
to the reporting and payment requirements placed upon them by this
article and the rules and regulations as from time to time may be
promulgated by the Board.
C.
When any registered agent's monthly report and payment of the
tax is not received within the dates prescribed, the Board shall impose
a late reporting penalty of 10% of the gross tax due or $10, whichever
is greater, but in no event more than $1,000.
D.
The Board also may require such registered agent to provide proof
that he has complied with all applicable laws of the Commonwealth
of Virginia to legally conduct such business and to file financial
statements showing all assets and liabilities.
E.
The Board may revoke or suspend any registered agent's permit
due to failure to file tax reports in a timely manner, nonpayment
of taxes due, or if the cigarette tax surety bond should become impaired
for any reason.
F.
All money collected as cigarette taxes under this article shall be
deemed to be held in trust by the dealer collecting the same until
remitted to the Board.
G.
Registered agents must account for all CBRCTB authorized tax stamps
purchased. Periodic audits may be conducted to determine any unaccounted
variance between the number of stamps purchased and the number of
stamps reported and an assessment will be made for all unaccounted
stamps. Any assessment of registered agents located outside the jurisdictions
of the Board will be based upon the average sales of packages of cigarettes
by jurisdiction during the audit period. For registered agents located
within the jurisdictions of the Board, any assessment will be based
upon the tax rate of the jurisdiction in which they are located. In
addition, there will be a penalty for nonreporting of 10% of the gross
tax due.
A.
Retail dealers who shall sell, offer for sale, store, possess, distribute,
purchase, receive or transport cigarettes for the purpose of sale
within the County shall purchase cigarettes only from registered agents.
Retail dealers shall provide the registered agent with the business
trade name and physical address where the cigarettes will be placed
for sale to the public. Cigarettes purchased for personal use cannot
be brought into a business for resale. Only properly registered and
licensed retail stores may sell cigarettes to the public. To be properly
registered and licensed, a retail store must first have a valid Virginia
state sale and use tax certificate and valid retail business license.
Cigarettes must be purchased and stored separately for each business
location. All copies of cigarette purchase invoices/receipts must
be retained by the retailer for a period of three years and shall
be made available to agents of the CBRCTB upon request for use in
conducting audits and investigations. All copies of cigarette purchase
invoices/receipts must be stored at the business retail location for
a period of one year from date of purchase. Failure to provide cigarette
invoices/receipts may result in confiscation of cigarettes until receipts
can be reviewed by the Board to verify the proper tax has been paid.
It is the responsibility of each retail location to ensure that all
cigarettes placed for sale or stored at that location be properly
taxed and stamped. Cigarettes found without the CBRCTB stamp or the
proper jurisdictional tax paid will be seized by the Agents of the
Board.
B.
Retail dealers must make their place of business available for inspection
by CBRCTB Tobacco Revenue Agents to ensure that all cigarettes are
properly tax-stamped and all cigarette taxes are properly paid.
A.
If any cigarette machine operator or other person liable for the
tax imposed by this article is found to possess any cigarettes without
the jurisdictional tax paid or the proper tax stamp affixed, there
shall be a rebuttable presumption that any such operator of other
person shall be in possession of untaxed cigarettes in violation of
this section.
B.
If any cigarettes are placed in any vending machines within the County,
then there shall be a rebuttable presumption that such cigarettes
were placed in that machine for sale within the County. If [a]ny vending
machine located within the County contains cigarettes upon which the
CBRCTB tax stamp has not been affixed or on which the jurisdictional
tax has not been paid or containing cigarettes placed so as to not
allow visual inspection of the CBRCTB tax stamp through viewing area
as provided for by the vending machine manufacturer, then there shall
be a rebuttable presumption that the machine contains untaxed cigarettes
in violation of this article.
C.
Any cigarettes, vending machines, cigarette tax stamps or other property
found in violation of this article shall be declared contraband goods
and may be seized by the Board. In addition to any tax due, the dealer
or other person liable for the tax possessing such untaxed cigarettes
or tax stamps shall be subject to civil and criminal penalties herein
provided.
D.
In lieu of seizure, the Board may seal such vending machines to prevent
continued illegal sale or removal of such cigarettes. The removal
of such seal from a vending machine by any unauthorized person shall
be a violation of this article. Nothing in this article shall prevent
the seizure of any vending machine at any time after it is sealed.
E.
All cigarette vending machines shall be plainly marked with the name,
address and telephone number of the owner of said machine.
A.
It shall be unlawful and a violation of the article for any dealer
or other person liable for the tax:
(1)
To perform any act or fail to perform any act for the purpose of
evading the payment of any tax imposed by this article or of any part
thereof, or to fail or refuse to perform any of the duties imposed
upon such person under the provisions of this article or to fail or
refuse to obey any lawful order which may be issued under this article;
(2)
To falsely or fraudulently make, or cause to be made, any invoices
or reports, or to falsely or fraudulently forge, alter or counterfeit
any stamp, or to procure or cause to be made, forged, altered or counterfeited
any such stamp, or knowingly and willfully to alter, publish, pass
or tender as true any false, altered, forged or counterfeited stamp
or stamps;
(3)
To sell, offer for sale, or distribute any cigarettes upon which
the CBRCTB tax stamp has not been affixed or upon which the jurisdictional
tax has not been paid;
(4)
To possess, store, use, authorize or approve the possession, storage
or use of any cigarette packages upon which the CBRCTB tax stamp has
not been affixed or upon which the jurisdictional tax has not been
paid;
(5)
To transport, authorize or approve the transportation of any cigarette
packages in quantities of more than six cartons (60 packages) into
or within the County upon which the CBRCTB tax stamp has not been
affixed or upon which the jurisdictional tax has not been paid, if
they are:
(a)
Not accompanied by a receipt/bill of lading or other document
indicating the true name and address of the consignor or seller and
the consignee or purchaser and the brands and quantity of cigarettes
transported;
(b)
Accompanied by a receipt/bill of lading or other document which
is false or fraudulent in whole or part; or
(c)
Accompanied by a receipt/bill of lading or other document indicating:
[1]
A consignee or purchaser in another state or the District of
Columbia who is not authorized by the law of such other jurisdiction
to receive or possess such tobacco products on which the taxes imposed
by such other jurisdiction have not been paid unless the tax on the
jurisdiction of destination has been paid and said cigarettes bear
the tax stamps of that jurisdiction; or
[2]
A consignee or purchaser in the Commonwealth of Virginia but
outside the taxing jurisdiction who does not possess a Virginia Sales
and Use Tax Certificate and, where applicable, any licenses issued
by the commonwealth or local jurisdiction of destination;
(6)
To reuse or refill with cigarettes any package from which cigarettes
have been removed, for which the tax imposed has been theretofore
paid;
(7)
To remove from any package any stamp with intent to use or cause
the same to be used after same has already been used or to buy, sell,
or offer for sale or give away any used, removed, altered or restored
stamps to any person, or to reuse any stamp which had theretofore
been used for evidence of the payment of any tax prescribed by this
article or to sell, or offer to sell, any stamp provided for herein;
(8)
To sell, offer for sale or distribute any loose or single cigarettes;
or
(9)
To perform any act that violates the resolutions promulgated by the
Board.
B.
It shall be unlawful and a violation of the article for any person
or individual to transport, possess, store, use, authorize or approve
the possession, storage or use of any cigarette in quantities of more
than six cartons (60 packages) upon which the CBRCTB tax stamp has
not been affixed or upon which the jurisdictional tax has not been
paid.
A.
The ordinance adopted by the County Board of Supervisors, effective
July 1, 2021, pertaining to the establishment of the Chesapeake Bay
Region Cigarette Tax Board is hereby made a part of this article by
reference.
B.
Any direct conflict between the powers granted to the Board in the
ordinance adopted by the County Board, effective July 1, 2021, and
herein incorporated by reference, and the powers granted to the Board
in this article shall be resolved in favor of this article; however,
the powers granted herein and in said ordinance shall be read cumulatively.
C.
The Board's fiscal year shall be from July 1 through June 30.
The Board may delegate any of its powers to its Administrator
or employees and may adopt regulations regarding the administration
and enforcement of the provisions of this article.
A.
In addition to those powers enumerated in the ordinance of the County
Board effective July 1, 2021, the Board shall be granted the following
additional powers:
(1)
To sue and be sued in its own name;
(2)
To prescribe the design of a stamp(s) and to issue and sell said
stamps to authorized dealers;
(3)
To establish different classes of taxpayers;
(4)
To promulgate resolutions for the assessment and collection of cigarette
taxes and the enforcement of this article; and
(5)
To conduct inspections of any place of business in order to enforce
the provisions of this article and all resolutions of the Board.
B.
The Board may employ legal counsel, bring appropriate court action
in its own name to enforce payment of the cigarette tax or penalties
owed and file tax liens against property of taxpayers hereunder.
C.
The Board is authorized to enter into an agreement with the Virginia
Department of Taxation under which a registered agent with the CBRCTB
who is also qualified to purchase Virginia Revenue Stamps, may qualify
to purchase Dual Virginia - CBRCTB stamps from the Virginia Department
of Taxation. Authority to purchase dual Virginia - CBRCTB stamps is
granted solely by the Board and may be revoked or suspended for violations
of this article or resolutions adopted by the Board.
D.
The Board may appoint certain employees as Tobacco Revenue Agents,
who shall be required to carry proper identification while performing
their duties. Tobacco Revenue Agents are further authorized to conduct
inspections of any place of business and shall have the power to seize
or seal any vending machines, seize any cigarettes, counterfeit stamps
or other property found in violation of this article and shall have
the power of arrest upon reasonable and probable cause that a violation
of this article has been committed. The Board is authorized to provide
its tobacco revenue agents with:
E.
The Board may exchange information relative to the sale, use, transportation,
or shipment of cigarettes with an official of any other jurisdiction
entrusted with the enforcement of the cigarette tax laws of said other
jurisdiction.
If the Administrator of the Board determines that the collection
of any tax or any amount of tax required to be collected and paid
under this article will be jeopardized by delay, the Administrator
shall make an assessment of the tax or amount of tax required to be
collected and shall mail or issue a notice of such assessment to the
taxpayer together with a demand for immediate payment of the tax or
of the deficiency in tax declared to be in jeopardy including penalties
and interest. In the case of a current period for which the tax is
in jeopardy, the Administrator may declare the taxable period of the
taxpayer immediately terminated and shall cause notice of such finding
and declaration to be mailed or issued to the taxpayer together with
a demand for immediate payment of the tax based on the period declared
terminated and such tax shall be immediately due and payable, whether
or not the terms otherwise allowed by this article for filing a return
and paying the tax has expired.
A.
Any person assessed by the Board with a cigarettes tax, penalties
and interest or any person whose cigarettes, vending machines and
other property have been sealed or seized under processes of this
article, who has been aggrieved by such assessment, seizure or sealing
may file a request for a hearing before the Administrator for the
Board for a correction of such assessment and the return of such property
seized or sealed.
B.
Where holders of property interest in cigarettes, vending machines
or other property are known at time of seizure or sealing, notice
of seizure or sealing shall be sent to them by certified mail within
24 hours. Where such holders of property interests are unknown at
time of seizure or sealing, it shall be sufficient notice to such
unknown interest holders to post such notice to a door or wall of
the room or building which contained such seized or sealed property.
Any such notice of seizure or sealing shall include procedures for
an administrative hearing for return of such property seized or sealed
and an opportunity to assert affirmative defenses.
C.
Such hearing shall be requested in writing within 10 days of the
notice of such assessment, seizure or sealing and the hearing request
shall set forth the reasons why said tax, penalties and interest,
cigarettes, vending machines or other property should be returned
or released. Within five days after receipt of such hearing request,
the Administrator shall notify the petitioner by certified mail of
a date and time for the informal presentation of evidence at a hearing
to be held within 15 days of the date notification is mailed. Any
such request for hearing shall be denied if the assessed tax, penalties
and interest has not been paid as required or if the request is received
more than 10 days from first notice to the petitioner of such seizure
or sealing. Within five days after the hearing, the Administrator
shall notify the petitioner, by registered mail, whether his request
for a correction has been granted or refused.
D.
Appropriate relief shall be given by the Administrator if he is convinced
by the preponderance of the evidence that said seized cigarettes were
in the possession of a person other than the petitioner without the
petitioner's consent at the time said cigarettes, vending machines
or other property were seized or sealed or that petitioner was authorized
to possess such untaxed cigarettes. If the Administrator is satisfied
that the tax was erroneously assessed, the Administrator shall refund
the amount erroneously assessed together with any interest and penalties
paid thereon and shall return any cigarettes, vending machines or
other property seized or sealed to the petitioner. Any petitioner
who is dissatisfied with the written decision of the Board may, within
30 days of the date of such decision, appeal such decision to the
appropriate court in the jurisdiction where the seizure or sealing
occurred.
Any seized and confiscated cigarettes, vending machines or other
property used in the furtherance of any illegal evasion of the tax
may be disposed of by sale or other method deemed appropriate by the
Board after any petitioner has exhausted all administrative appeal
procedures. No credit from any sale of cigarettes, vending machines,
or other property seized shall be allowed toward any tax and penalties
assessed.
The Administrator, upon a finding of good cause, may grant an
extension of time to file a tax report upon written application for
a period not exceeding 30 days. Except as hereinafter provided, no
interest or penalty shall be charged, assessed or collected by reason
of the granting of such an extension.
Any person violating any of the provisions of this article shall
be guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not more than $2,500 or imprisonment for not
more than 12 months, or by both such fine and imprisonment. Such fine
and/or imprisonment shall not relieve any such person from the payment
of any tax, penalty or interest imposed by this article.
The sale of any quantity, the use, possession, storage or transportation
of more than six cartons (60 packages) of cigarettes upon which the
CBRCTB tax stamp has not been affixed or the proper jurisdictional
tax has not been paid shall be and constitute a separate violation.
Each continuing day of violation shall be deemed to constitute a separate
offense.
If any section, phrase, or part of this article should for any
reason be held invalid by a court of competent jurisdiction, such
decision shall not affect the remainder of the article; and every
remaining section, clause, phrase or part thereof shall continue in
full force and effect. This article shall be effective January 1,
2024.
