[Amended 8-10-2000]
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
For the purpose of this article, the following words or phrases shall have the following meanings:
CATERER
Any person who furnishes food, beverages or both, on the premises of another for compensation.
FOOD
All food, beverages or both, including alcoholic beverages, purchased in or from a food establishment, whether prepared in such food establishment or not, and whether consumed on the premises or not and without regard to the manner, time or place of service.
FOOD ESTABLISHMENT
Any place in or from which food or food products are prepared, packaged, sold or distributed in the Town, including but not limited to, any restaurant, dining room, grill, coffee shop, cafeteria, cafe, snack bar, lunch counter, convenience store, movie theater, delicatessen, confectionery, bakery, eating house, eatery, drugstore, ice cream/yogurt shops, lunch wagon or truck, pushcart or other mobile facility from which food is sold, public or private club, resort, bar, lounge, or other similar establishment, public or private and shall include private property outside of and contiguous to a building or structure operated as a food establishment at which food or food products are sold for immediate consumption.
MEAL
Any prepared food or drink offered or held out for sale by a food establishment for the purpose of being consumed by any person to satisfy the appetite and is ready for immediate consumption. All such food and beverage, unless otherwise specifically exempted or excluded here shall be included, whether intended to be consumed on the seller's premises or elsewhere, whether designated as breakfast, lunch, snack, dinner, supper or by some other name, and without regard to the manner, time or place of service.
PURCHASER
Any person who purchases a meal or meals.
SELLER
Any restaurant, market or caterer selling meals for the person, partnership or corporate entity operating such business.
TOWN
The Town of Middletown, Virginia.
[Amended 10-12-2010]
There is hereby levied and imposed by the Town of Middletown upon the purchaser an excise tax of 5% of the total amount paid for the meal from any food establishment, whether prepared in such food establishment or not, and whether consumed on the premises or not. All fractional amounts of $0.005 or more shall be rounded up to the next cent.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
In every case, the purchaser shall pay the meals tax, and the seller shall collect the meals tax, at the time the charge for the meal comes due and payable, whether payment is made in cash or on credit by means of a charge card or otherwise. The seller shall add the tax to the amount charged for the meal; provided, however, no blind person operating a vending stand or other business enterprise under the jurisdiction of the Department for the Blind and Vision Impaired and located on property acquired and used by the United States for any military purpose shall be required to collect or remit such taxes.
All tax collections shall be deemed to be held in trust for the Town of Middletown.[1]
[1]
Editor's Note: Original Sec. 5-18 of the 1972 Code, Commission for Collection of Taxes, which immediately followed this section, was repealed 12-9-2013.
[Amended 12-14-2009]
It shall be the duty of every person required by this article to pay to the Town of Middletown the taxes imposed by this article to make a report thereof setting forth such information as the Treasurer may prescribe and require, including all purchases taxable under this article, the amount charged the purchaser for each such purchase, the date thereof, the taxes collected thereon and the amount of tax required to be collected by this article. They shall be delivered to the Treasurer on or before the 20th day of the calendar month following the month being reported.
Any seller who shall fail or refuse to make the monthly report within the time required or to remit the tax in the amount required, as provided by this article, shall be required to pay a penalty in the amount of 10% of the total tax due. In addition, the seller shall pay interest on all taxes imposed under this article which are past due 30 days or more, at the rate of 12% per annum. All penalties and interest shall be payable to the Town of Middletown and are in addition to any criminal penalties imposed under this article.
A. 
Any person willfully failing or refusing to file a return as required under this article shall, upon conviction thereof, be guilty of a Class 1 misdemeanor except that any person failing to file such a return shall be guilty of a Class 3 misdemeanor if the amount of tax lawfully assessed in connection with the return is $1,000 or less. Any person, violating or failing to comply with any other provision of this article shall be guilty of a Class 1 misdemeanor.
B. 
Except as provided in Subsection A above, any corporate or partnership officer, as defined in Code of Virginia, § 58.1-3906, or any other person required to collect, account for, or pay over the meals tax imposed under this article, who willfully fails to collect or truthfully account for or pay over such tax, or who willfully evades or attempts to evade such tax or payment thereof, shall, in addition to any other penalties imposed by law, be guilty of a Class 1 misdemeanor.
C. 
Each violation of or failure to comply with this article shall constitute a separate offense. Conviction of any such violation shall not relieve any person from the payment, collection or remittance of the tax as provided in this article.
Records shall be kept and preserved for a period of five years. The Treasurer or their duly authorized agents shall have the power to examine such records at reasonable times and without unreasonable interference with the business of such person, for the purpose of administering and enforcing the provisions of this article, and to make transcripts of all or any parts thereof.
If any seller in the Town shall cease to operate or otherwise dispose of his business, then notwithstanding the regular monthly report and payment requirements, that seller shall file a report of the restaurant meal excise taxes due and make a payment on the date that the seller ceases operation or otherwise disposes of the business.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A. 
The tax imposed under this article shall not be levied on the following items when served exclusively for off-premises consumption.
(1) 
Factory-prepackaged candy, gum, nuts, and other items of essentially the same nature.
(2) 
Donuts, ice cream, crackers, nabs, chips, cookies and items of essentially the same nature.
(3) 
Food sold in bulk. For the purpose of this provision, a bulk sale shall mean the sale of any items that would exceed the normal, customary and usual portion sold for on-premises consumption (e.g., a whole cake, a gallon of ice cream); a bulk sale shall not include any food or beverage that is catered or delivered by a food establishment for off-premises consumption.
(4) 
Alcoholic and non-alcoholic beverages sold in factory sealed containers.
(5) 
Any food or food product purchased with food coupons issued by the United States Department of Agriculture under the Food Stamp Program or drafts issued through the Virginia Special Supplemental Food Program for Women, Infants, and Children.
(6) 
Any food or food product purchased for home consumption as defined in the Federal Food Stamp Act of 1977 U.S.C. § 2012, as amended except hot food or hot food products ready for immediate consumption. For the purpose of administering the tax levied hereunder, the following items whether or not purchased for immediate consumption are excluded from the said definition of food in the Federal Food Stamp Act; sandwiches, salad bar items sold from a salad bar, prepackaged single-serving salads consisting primarily of an assortment of vegetables and nonfactory sealed beverages. This section shall not affect provision set forth in Subsection C(3), (4) and (5).
B. 
A grocery store, supermarket or convenience store shall not be subject to the tax except for any portion or section therein designated as a delicatessen or designated for the sale of prepared food and beverages.
C. 
The tax imposed hereunder shall not be levied on the following purchases of food and beverages:
(1) 
Food and beverages furnished by food establishments to employees as a part of their compensation when no charge is made to the employee.
(2) 
Food and beverages sold by day-care centers, public or private elementary or secondary schools or food sold by any college or university to its students or employees.
(3) 
Food and beverages for use or consumption and which are paid for directly by the commonwealth, or by any political subdivision of the commonwealth of the United States.
(4) 
Food and beverages furnished by a hospital, medical clinic, convalescent home, nursing home, home for the aged, infirm, handicapped, battered women, narcotic addicts or alcoholics, or other extended care facility to patients or residents thereof.
(5) 
Food and beverages furnished by a public or private non-profitable charitable organization or establishment that contracts with the appropriate agency of the Commonwealth to offer meals at concession prices to elderly, infirm, blind, handicapped or needy persons in their homes or at central locations.
(6) 
Food and beverages sold on an occasional basis, not exceeding one time per calendar year, by a nonprofit educational, charitable or benevolent organization, church, or religious body as a fund-raising activity, the gross proceeds of which are to be used by such organization exclusively for nonprofit educational, charitable, benevolent or religious purposes.
(7) 
Food and beverages sold through vending machines.
D. 
Gratuity.
(1) 
Where a purchaser provides a gratuity for an employee of a seller, and the amount of the gratuity is wholly in the discretion of the purchaser, the gratuity 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 gratuity is turned over to the employee by the seller.
(2) 
An amount or percent, whether designated as a gratuity, tip or service charge, that is added to the price of the food and beverages by the seller, and required to be paid by the purchaser, as a part of the selling price of the food and beverages, is not subject to the tax imposed by this article, but only to the extent that such mandatory gratuity or service charge does not exceed 20% of the sales price.