[Adopted 7-11-1990 (Ch. 9, Art. XX, of the 1984 Frederick
County Code)]
The following words and phrases, when used in
this article, shall have the following respective meanings except
where the context clearly indicates a different or contrary meaning
or there is an express provision to the contrary:
A business or person who furnishes meals on the premises
of another.
The Commissioner of the Revenue of the County of Frederick,
Virginia.
Any prepared food and drink, including alcoholic beverages,
offered or held out for sale by a restaurant, caterer or other vendor
for the purpose of being consumed by an individual or group of individuals
at one time to satisfy the appetite. All such food and drink shall
be included whether intended to be consumed on the seller's premises
or elsewhere, whether designated as breakfast, lunch, dinner, supper
or by some other name and without regard to the manner, time or place
of service.
Any person who purchases a meal.
Any place in the County from which or in which meals are
sold, including but not limited to places of business known as "bars,"
"cafes," "cafeterias," "coffee shops," "clubs," "convenience stores,"
"delicatessens," "diners," "dining rooms," " eateries," "grills,"
"lunch counters," "restaurants" or " snackbars."
Any restaurant or caterer selling meals or the person operating
such business.
[Amended 5-22-2002[1] ]
In addition to all other taxes and fees of any
kind now or hereafter imposed by law, there is hereby levied and imposed
on the purchaser of every meal served, sold or delivered in the County
by a restaurant or caterer a tax equivalent to 4% of the amount paid
for the meal. There shall be no tax if the total amount paid is less
than $0.50; on larger amounts, a fractional cent of tax due shall
be rounded to the next higher cent.
[1]
Editor's Note: This ordinance provided that
it take effect 7-1-2002.
In every case, the tax shall be collected by
the seller and paid by the purchaser at the time the charge for the
meal becomes due and payable, whether payment is to be made in cash
or on credit by means of a credit card or otherwise. The seller shall
add the tax to the amount charged for the meal and shall pay the taxes
collected to the County as provided in this article.
All amounts collected as taxes under this article
shall be deemed to be held in trust by the seller collecting them
until remitted to the County as provided by this article.
A.
The Commissioner may require all prospective sellers
of meals operating and/or licensed to do business in the County to
register for collection of the tax imposed by this article. Every
seller shall make a report for each calendar month, showing the amount
of charges collected for meals and the amount of tax required to be
collected.
B.
The monthly reports shall be made on forms prescribed
by the Commissioner and shall be signed by the seller. They shall
be delivered to the Commissioner on or before the 20th day of the
calendar month following the month being reported. Each report shall
be accompanied by a remittance of the amount of tax due, made payable
to the Treasurer of the County of Frederick, Virginia.
[Amended 5-11-1994]
A.
There shall be a penalty of 10% added to all meals
taxes imposed under the provisions of this article that are unpaid
on the due dates as provided in this article.
B.
In addition to such penalty, interest at the rate
of 10% per annum shall accrue and be added to all due and unpaid taxes
and penalties beginning with the first day following the imposition
of the penalty; provided, however, that for the second and subsequent
years of delinquency, such interest shall be at the rate established
pursuant to Section 6621 of the United States Internal Revenue Code
of 1986, 26 U.S.C. § 6621, as amended, but not less than
10%. Taxes and penalties herein provided shall be assessed and collected
in the manner provided by law for the enforcement of the collection
of other taxes.
A.
If any person whose duty it is to do so shall fail
or refuse to collect the tax imposed under this article and make timely
report and remittance thereof or if the Commissioner has reasonable
cause to believe that an erroneous statement has been filed, the Commissioner
shall proceed in such manner as is practicable to obtain facts and
information on which to base an estimate of the tax due the County
and, in connection therewith, shall make such investigations and take
such testimony and other evidence as may be necessary; provided, however,
that notice and opportunity to be heard shall be given any person
who may become liable for the amount owing prior to any determination
by the Commissioner.
B.
As soon as the Commissioner has procured whatever
facts and information may be obtainable upon which to base the assessment
of any tax payable by any person who has failed to collect, report
or remit such tax, the Commissioner shall proceed to determine and
assess against such person the tax provided in this article. The Commissioner
shall then notify the person, by mail or, if the person has consented
to electronic notice, by e-mail, sent to his or her last known address
on file, that a statutory amount has been assessed due to failure
to file and that he or she must contact the Treasurer to obtain the
total amount due, including the assessed amount of penalty and interest.
The total amount thereof shall be payable 10 days after the date such
notice is given. If a corrected assessment is provided to the Commissioner,
the statutorily assessed tax, penalty, and interest would be adjusted.
[Amended 1-9-2013]
It shall be the duty of every person liable
for collection and remittance of the taxes imposed by this article
to keep and preserve, for a period of two years, records showing all
purchases taxable under this article, the amount charged the purchaser
for each purchase, the date thereof, the taxes collected thereon and
the amount of tax required to be collected by this article. The Commissioner
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.
Whenever any person required to collect and
remit to the County any tax imposed by this article shall cease to
operate or otherwise dispose of his or her business, the tax shall
immediately become due and payable, and the person shall immediately
make a report and remittance thereof.
No seller shall advertise or hold out to the
public in any manner, directly or indirectly, that all or any part
of a tax imposed under this article will be paid or absorbed by the
seller or by anyone else or that the seller or anyone else will relieve
any purchaser of the payment of all or any part of the tax.
Where a purchaser provides a tip for an employee
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 that, in the latter
case, the full amount of the tip is turned over to the employee by
the seller.
The following classes of meals shall not be
subject to tax under this article:
A.
Meals furnished by restaurants to employees as part
of their compensation when no charge is made to the employee.
B.
Meals sold by public or private elementary or secondary
schools to their students or employees.
C.
Meals purchased by agencies of federal, state or local
governments or by officers or employees thereof while on official
business.
D.
Meals furnished by a hospital, medical clinic, convalescent
home, nursing home, home for the aged, infirm or handicapped or other
extended-care facility to patients or residents thereof.
E.
Meals furnished by a nonprofit charitable organization
to elderly, infirm, handicapped or needy persons in their homes or
at central locations.
F.
Meals furnished by a college fraternity or sorority
to its members.
G.
Meals sold by a nonprofit educational, religious,
charitable or benevolent organization on an occasional basis as a
fundraising activity.
H.
Meals or food sold from coin-operated vending machines.
J.
Nonalcoholic beverages, popcorn, candy and similar
confections sold in theaters.
K.
The County shall not levy any tax under this section
upon alcoholic beverages sold in factory-sealed containers and purchased
for off-premises consumption.
[Added 10-25-2000]
L.
The County shall not levy any tax under this section
upon food purchased for human consumption as "food" is defined in
the Food Stamp Act of 1977, 7 U.S.C. § 2012, as amended,
and federal regulations adopted pursuant to that Act, except for the
following items: 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.
[Added 10-25-2000]
A.
It shall be the duty of the Commissioner to ascertain
the name of every person operating a restaurant in the County 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 shall have issued a summons
for such person or any other person whom the Commissioner believes
to have information concerning the collection of the tax imposed by
this article and/or the nonpayment of such tax or nonfiling of the
reports required by this article, and the summons shall be served
upon such person by any County Deputy Sheriff in the manner provided
by law.
[Amended 1-9-2013]
B.
In the event that the purchaser of any meal refuses
to pay the tax imposed by this article, the seller may call upon the
Sheriff's Department for assistance and the investigating officer
may, when probable cause exists, issue the purchaser a summons returnable
to the General District Court as provided by law.
[Amended 12-9-1992; 6-13-2007]
Any person violating or failing to comply with
any of the provisions of this article shall, upon conviction thereof,
be guilty of a Class 1 misdemeanor punishable by a maximum fine of
$2,500. Conviction shall not relieve any person from the payment,
collection or remittance of the tax as provided in this article. Each
violation or failure shall be a separate offense.
