[Amended 3-19-2009 by Ord. No. 2009-03; 12-7-2017 by Ord. No. 2017-14]
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:
The furnishing of food, beverages or both on the premises
of another, for compensation.
The Treasurer of the City and any duly authorized deputies
or agents.
The City Treasurer or designee.
The Commissioner of the Revenue of the City and any duly
designated deputies, assistants, inspector or other employees.
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.
Any place in or from which food or food products are prepared,
packaged, sold or distributed in the City of Lexington, 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 shop, lunch wagon or truck, trailer, 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.
[Amended 6-7-2012 by Ord. No. 2012-07; 5-21-2015 by Ord. No. 2015-02]
Beginning July 1, 2015, there is hereby imposed and levied by
the City on each person a tax at the rate of 6% on the amount paid
for food and beverages purchased from any food establishment, whether
prepared in such food establishment or not, and whether consumed on
the premises or not.
A.
Every person receiving any payment for food with respect
to which a tax is levied hereunder shall collect and remit the amount
of the tax imposed by this article from the person on whom the same
is levied or from the person paying for such food at the time payment
for such food is made; provided, however, that no blind person operating
a vending stand or other business enterprise under the jurisdiction
of the Department for the Visually Handicapped and located on property
acquired and used by the United States for any military or naval purpose
shall be required to collect or remit such taxes. The taxes collected
during each calendar month shall be reported and remitted by each
seller to the Commissioner of the Revenue on or before the 20th day
of the following calendar month. The required report shall be in such
form as may be prescribed by the Commissioner of the Revenue. All
remittances received hereunder by the Commissioner of the Revenue
shall be turned over promptly to the City Treasurer.
B.
For the purpose of compensating the seller for accounting
for and remitting the tax levied by this article, such seller shall
be allowed 3% of the amount of tax due and accounted for in the form
of a deduction in submitting the return and paying the amount due,
if the amount due was not delinquent at the time of payment.
C.
All tax collections shall be deemed to be held in
trust for the City.
A.
The tax imposed under this article shall not be levied
on factory-prepackaged candy, gum, nuts and other items of essentially
the same nature served for on- or off-premises consumption.
B.
The tax imposed under this article shall not be levied
on the following items when served exclusively for off-premises consumption:
(1)
Donuts, ice cream, crackers, nabs, chips, cookies
and factory-prepackaged items of essentially the same nature.
(2)
Food sold in bulk. For the purposes of this provision,
a bulk sale shall mean the sale of any item that would exceed the
normal, customary and usual portion sold for on-premises consumption
(e.g., a whole cake or 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.
(3)
Alcoholic and nonalcoholic beverages sold in factory-sealed
containers.
(4)
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.
(5)
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 hot food or hot food products ready for immediate consumption. For the purposes of administering the tax levied hereunder, the following items, whether or not purchased for immediate consumption, are excluded from 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 non-factory-sealed beverages. This subsection shall not affect provisions set forth in Subsection D(3), (4) and (5) hereinbelow.
C.
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.
D.
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 part of their compensation when no charge is made
to the employee.
(2)
Food and beverages sold by day-care centers or 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, any political subdivision
of the commonwealth or 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 and the spouses
and children of such persons.
(5)
Food and beverages furnished by a public or private
nonprofit charitable organization or establishment or a private establishment
that contracts with the appropriate agency or 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 12 times 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.
A.
Where a purchaser provides a gratuity for an employee
or 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, that the full amount of the gratuity is turned over to the employee
by the seller.
B.
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 subject to
the tax imposed by this article.
Amended 12-19-2013 by Ord. No. 2013-07]
A.
It shall be the duty of every person required by this article to
pay to the City the taxes imposed by this article to make a report
thereof setting forth such information as the Commissioner 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. Such records shall be kept and preserved for a period
of five years. The Commissioner or his 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.
B.
If any person shall fail or refuse to collect the tax imposed and
levied by this article and to make within the time provided in this
article the report and remittance required, the Commissioner of the
Revenue shall proceed in such manner as he may deem best to obtain
facts and information on which to base the tax due. As soon as the
Commissioner of the Revenue shall procure such facts and information
as he is able to obtain upon which to base the assessment of any tax
due and payable to any person who has failed or refused to collect
such tax and to make such report and remittance, he shall proceed
to determine and assess against such person such tax and penalty and
interest as are provided for in this article and shall notify such
person by certified mail, sent to his last known address, of the amount
of such tax, penalty and interest, and the total amount thereof shall
be payable within 10 days from the date of such notice.
[Amended 3-19-2009 by Ord. No. 2009-03; 12-19-2013 by Ord. No.
2013-07]
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 of this section, any corporate or partnership officer, as defined in § 58.1-3906 of the Code of Virginia, 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 such tax or payment thereof shall, in addition to any other penalties imposed bylaw, 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.
D.
Failure to comply with this ordinance can result in any and all enforcement
actions authorized by the Code of Virginia, including, but not limited
to, the seizure of property, tax liens, and possible criminal charges.
