Monday, May 13, 2013

Gloucester, VA Peddlers And Itinerant Merchants Facts

We continue to research areas of law as they apply to Gloucester Counties new ordinance 10-26.  We looked up a definition for Vendor in state code but could not find one.  Next best place to look, how the state uses the terminology.  Going through tax laws and tax codes, the state of Virginia uses the term vendor to be a part of the supply chain.  Not as a merchant or peddler though both can act as vendors but when they do, then the term applies, otherwise it does not.  In the text of the image

We looked at Virginia tax laws to get more information here.

Localities in Virginia may impose the BPOL license fee and tax ordinances on businesses that engage in a licensable business within the locality applying the tax. Code of Virginia § 58.1-3703(A). The BPOL tax is not a tax on income, but a tax on the privilege of engaging in business. The taxable amount is based total gross receipts that the business earns within that locality. Code of Virginia § 58.1-3703.1(A)(3)(a).

"Gross receipts" are the total receipt of money or other consideration received by the taxpayer for engaging in a licensed business activity less any statutory exclusions or deductions. Exclusions and deductions from gross receipts are allowed only for those items enumerated in the statute. Code of Virginia §§ 58.1-3703(C); 58.1-3732; 58.1-3732.1; 58.1-3732.2.

In other words, it acts something akin to a prepaid tax when it comes to 58.1-3717.  It's a combination license and flat tax fee rolled into one package.
Here is how Fairfax county applies BPOL;

Business/Professional/Occupational Licenses

  • Businesses, professions, trades, and occupations are assessed a license tax based on gross receipts for the prior year, without deductions.

    • Exclusions are deductions from the definition of gross receipts. Section 4-7.2-1(B) of the Fairfax County Code and Chapter 37 of Title 58.1 of the Code of Virginia lists the only deductions that can be claimed.
  • Individuals engaged in home occupations and self employed must also file if gross receipts are greater than $10,000.
  • Receipts of venture capital or other investment funds are excluded from taxation except commissions and fees.
  • Effective January 1, 1998, renewal license applications must be filed and the tax paid by March 1 each year. New licenses must be filed within 75 days from the date the business began in Fairfax County.
  • If gross receipts are $10,000 or less, there is no fee or license requirement.
  • For businesses with gross receipts from $10,001 to $50,000, a flat fee of $30 is assessed.
  • For businesses with gross receipts from $50,001 to $100,000, a flat fee of $50 is assessed.
  • For businesses with gross receipts of $100,001 or greater, the tax rate is determined by the business classification.
  • The County's Business, Professional and Occupational License (BPOL) Ordinance requires an estimate for the first partial and the subsequent first full calendar year of operation. Although the first two years of operation require an estimate of gross receipts (or gross purchases for Wholesale Merchants), in reality the taxpayer is taxed on actual gross receipts since adjustments are made at the end of each tax year during the estimating phase.
    First Year (partial of operation). A business makes an initial gross receipts estimate of $160,000. If the actual gross receipts at the end of the year are $135,000, an adjustment of $25,000 is made. This would be refunded if the business ended at that time or a credit on the next tax year if the business continues. The ultimate tax effectively levied would be on the actual gross receipts of $135,000.
    Second Year (first year completed from January 1 through December 31). The tax basis would be a new gross receipts estimate for the full year. The tax bill would be based on the new gross receipts estimate plus the adjustment (+ or -) of the difference between the initial gross receipts estimate and the actual prior year gross receipts, as described for the first year.
    Third Year (second year completed from January 1 through December 31). (estimate no longer required). The tax bill would be based on the actual prior year gross receipts plus an adjustment (+ or -) of the difference between the prior year new gross receipts estimate and the actual prior year gross receipts.
    For all subsequent calendar years, the BPOL tax is based solely on the prior year actual gross receipts.
  • Businesses have the right to request written interpretive ruling from the Director of the Fairfax County Department of Tax Administration. Local audit decisions can be appealed to the Virginia Tax Commissioner. 
  • If a business which has paid a license tax permanently ceases to operate, a refund may be obtained for the portion of the tax already paid.
  • Businesses located in the cities of Fairfax and Falls Church, and the towns of Clifton, Herndon, and Vienna are not subject to County BPOL tax, but should check with those jurisdictions for license tax requirements. Businesses located in the towns of Clifton, Herndon, and Vienna are required to file tangible business property with the County.

Fairfax County Ordinance meeting the same legal status as Gloucester County Ordinance without locking in the state maximum amount of $500.00.  The Fairfax county code reads identical to state law.


BPOL Ordinance

Section 4-7.2-2. Persons subject to business licensing.

A. Except as otherwise provided by this Article or by state law, the license taxes or fee imposed by this Article are imposed on every person engaged in any business, profession, trade, occupation or calling which has a taxable situs in the County.

B. Every person shall apply for a license for each business or profession when engaging in a business in the County if (i) the person has a definite place of business in the County; (ii) there is no definite place of business anywhere and the person resides in the County; or (iii) there is no definite place of business in the County but the person operates amusement machines or is classified as an itinerant merchant, peddler, carnival, circus, contractor subject to Va. Code § 58.1-3715, or public service corporation. Itinerant merchants and peddlers shall be subject to licensure pursuant to Chapter 31, Article 2 of the Fairfax County Code."

At present, Gloucester County officials seek to lock in the maximum rate allowed by the state for each merchant that enters into Gloucester, which is $500.00.  That says to anyone even considering doing business in the county, Gloucester County officials are telling everyone that they do not want your business.  If you insist on bringing business here then we are going to make it cost prohibitive for you to even make a profit.  What that also tells every citizen of Gloucester County, your local officials are creating situations where they are directly increasing costs to everyone through poor policies, and also walking away from potential tax revenues as they would rather get the money out of your pocket instead of from businesses.

  Also note, Fairfax county never uses the term, vendor in it's ordinance.  The county attorney in Fairfax obviously knows the laws.  Now let's look at what the State Attorney General says about all of this.  

Attorney General Opinions
Opinion Number:01-118
Tax Type:BPOL Tax
Brief Description:Flat tax Imposed on itinerant merchants and peddlers
Topics:Constitutional Provisions
Date Issued:04/12/2002
      Mr. Michael M. Collins
      County Attorney for Alleghany County

      Issue Presented
      You ask whether a locality may impose a $500 flat-fee license tax on out-of-state itinerant merchants and peddlers without violating the Commerce Clause of the Constitution of the United States.
      I regret that I am unable to render an opinion on your question, because such a determination depends on a resolution of questions of fact. Attorneys General traditionally have declined to render official opinions when the request involves a question of fact rather than one of law. I have outlined, however, the state of the law for your consideration in making a factual determination.
      You advise that Alleghany County imposes on every itinerant merchant or peddler subject to a business, professional and occupational license, a $500 flat tax.1 Such tax is imposed regardless of the in-state or out-of-state status of the itinerant merchant or peddler. You advise that the Alleghany County Code2 specifically provides that the terms "peddlers" and "itinerant merchants" shall have the same meaning as prescribed in § 58.1-3717 of theCode of Virginia, which establishes a maximum $500 license tax per year that localities may impose on peddlers and itinerant merchants.3 You relate that Homier Distributing Company, Inc., an itinerant out-of-state merchant, objects to the county’s $500 license tax, claiming that the tax discriminates in favor of local interests, in violation of the Commerce Clause of the United States Constitution.
      You relate that Homier paid the county’s $500 license tax for a one-day sale held in the county, and that Homier’s gross receipts from the sale were $15,983. Homier argues that a nonitinerant local retailer would have been taxed only $15.98 for the same sale (i.e., a rate of 10 cents per $100 of gross receipts),4 while Homier was taxed $500 (i.e., a rate of $3.13 per $100 of gross receipts).
      Constitutional Considerations
      The Commerce Clause of the Constitution of the United States provides that Congress shall have the power "[t]o regulate commerce … among the several states."5 The Supreme Court of the United States has long construed the Commerce Clause as a restraint on state and local power.6 Modern jurisprudence regarding state and local taxation under the Commerce Clause emerged in the late 1930s, when the Court began to shun formalistic distinctions that lacked substance and to focus on the practical effect of the tax imposed, or its effect despite any distinctions in form.7 In prior decisions, the Court merely held that a state or locality could regulate "local," but not "national," commerce.8
      After 1938, the apportionment of a local tax to cover those activities rationally related to a taxing authority’s power and interest became the central inquiry. The Court announced that, for a tax to be valid under the Commerce Clause, the tax cannot, in effect, reach revenue generated by activities lacking a substantial nexus with the taxing jurisdiction.9 In the case of Complete Auto Transit, Inc. v. Brady,10 the Court spelled out this apportionment rule, announcing a four-pronged test to assess the validity of a local tax under the Commerce Clause. The tax must be (1) applied to an activity with a substantial nexus with the taxing authority, (2) fairly apportioned, (3) nondiscriminatory to interstate commerce, and (4) fairly related to the services provided by the state or locality.11 The Court also restated the realist approach, noting that the focus is not on the tax statute’s formal language, but rather on its practical effect.12
      Your question relates to the classification of itinerant and fixed merchants for purposes of analysis of Commerce Clause implications. "Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities."13 In General Motors Corporation v. Tracy, the Court held that regulated and unregulated sellers of natural gas served different markets, so that sales of each may be taxed differently without violating the Commerce Clause.14 "The dormant Commerce Clause protects markets and participants in markets, not taxpayers as such."15Fixed and itinerant merchants both sell merchandise at retail from stores or other places of business, the difference between them being the expected period of occupancy in those stores or places of business. Therefore, it is clear that fixed and itinerant merchants serve the same market for the purposes of Commerce Clause analysis.
      The fact that a local $500 flat tax burdens all in-state and out-of-state itinerant merchants equally, regardless of where else they travel or where they are based, reflects that the tax does not discriminate against interstate commerce when addressing only the taxation of itinerant merchants. Analysis must, however, be made of both the burdened class and the preferred class. Should itinerant merchants be compared with fixed merchants, it becomes apparent that the fixed merchants’ receiving the more favorable tax rates are located within the locality.
      In the case of American Trucking Associations, Inc. v. Scheiner,16 the Court reviewed the Commerce Clause cases involving flat taxes. The Court concluded that a flat tax "has a forbidden impact on interstate commerce because it exerts an inexorable hydraulic pressure on interstate businesses to ply their trade within the State that enacted the measure rather than ‘among the several States.’"17 The "hydraulic pressure" arises because "[f]lat-rate license taxes, ‘if adopted by many cities and states, bear much more heavily in the aggregate on a firm that sells in many places than on a firm otherwise identical (and, in particular, with the same total quantity of sales) that sells in only one place.’"18
        Indeed, the Court has suggested that a flat tax, which "bears no relationship to the taxpayers’ presence or activities in a State," will invariably fail the fourth prong of the test articulated in Complete Auto Transit.19 Even before the Complete Auto Transit case, the Court struck down flat taxes when local merchants paid a graduated rate. In the case of West Point Wholesale Grocery Co. v. Opelika, the Court wrote:In our opinion the tax here in question falls squarely within the ban of those cases. This is particularly so in that Opelika places no comparable flat-sum tax on local merchants. Wholesale grocers whose deliveries originate in Opelika, instead of paying $250 annually, are taxed a sum graduated according to their gross receipts. Such an Opelika wholesaler would have to gross the sum of $280,000 in sales in one year before his tax would reach the flat $250 amount imposed on all foreign grocers before they may set foot in the City. The Commerce Clause forbids any such discrimination against the free flow of trade over state boundaries.[20]
      The Court has recognized that a discriminatory tax may be upheld if it "advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives."21 An example may be found in the compensatory tax doctrine. "[F]or a tax system to be ‘compensatory,’ the burdens imposed on interstate and intrastate commerce must be equal."22 Another example of a legitimate local purpose is when administrative difficulties make collection of more finely calibrated user charges impracticable.In the case of American Trucking Association v. Scheiner,23 after noting that the pre-Complete Auto Transit cases injudiciously upheld various flat taxes without regard to their discriminatory consequences for interstate businesses, the Court noted:
        Those precedents are still valid, however, in their recognition that the Commerce Clause does not require the States to avoid flat taxes when they are the only practicable means of collecting revenues from users and the use of a more finely gradated [sic] user-fee schedule would pose genuine administrative burdens.[24]
      Moreover, while the Court has struck down flat taxes, with statements such as "when the measure of a tax bears no relationship to the taxpayers’ presence or activities in a State … under the fourth prong of the Complete Auto Transittest … the State is imposing an undue burden on interstate commerce,"25 it has not specifically concluded that the only mode of taxation available to states involves graduated taxes on gross receipts or other activity.There are instances where genuine administrative burdens exist due to the nature of a particular taxpayer’s activities. For instance, it would not be unreasonable to conclude that out-of-state itinerant merchants might be less inclined to report their gross sales after leaving a locality. Similarly, such merchants may be less inclined to register with the State Corporation Commission to do business in the Commonwealth, and might create additional litter or public safety problems. Finally, such merchants might be less likely to register as a dealer and report and pay over sales and local excise taxes, such as meals taxes, and less likely to file income tax returns and satisfy the corresponding liabilities. Any such conclusion, however, must be based upon factual considerations.
      Ultimately, any determination regarding whether a flat tax on itinerant merchants offends the Commerce Clause depends on a resolution of questions of fact. This Office traditionally has declined to render official opinions when the request involves a question of fact rather than one of law.26
      Accordingly, I am unable render an opinion as to whether a locality may impose a $500 flat fee license tax on out-of-state itinerant merchants and peddlers without violating the Commerce Clause of the United States Constitution due to the factual nature of any such determination.
      1Alleghany County, Va., Code § 38-9(2)(i) (1996).
      2Id. § 38-2.
      3Section 58.1-3717 provides:
      "A. For the purpose of license taxation pursuant to § 58.1-3703, any person who shall carry from place to place any goods, wares or merchandise and offer to sell or barter the same, or actually sell or barter the same, shall be deemed to be a peddler.
      "B. For the purpose of license taxation pursuant to § 58.1-3703, the term ‘itinerant merchant’ means any person who engages in, does, or transacts any temporary or transient business in any county, city or town and who, for the purpose of carrying on such business, occupies any location for a period of less than one year.
      "C. Any tax imposed pursuant to § 58.1-3703 on peddlers and itinerant merchants shall not exceed $500 per year. Dealers in precious metals shall be taxed at rates provided in § 58.1-3706.
      "D. This section shall not apply to a peddler at wholesale or to those who sell or offer for sale in person or by their employees ice, wood, charcoal, meats, milk, butter, eggs, poultry, game, vegetables, fruits or other family supplies of a perishable nature or farm products grown or produced by them and not purchased by them for sale. A dairyman who uses upon the streets of any city one or more vehicles may sell and deliver from his vehicles, milk, butter, cream and eggs in such city without procuring a peddler’s license.
      "E. The local governing body imposing such tax may by ordinance designate the streets or other public places on or in which all licensed peddlers or itinerant merchants may sell or offer for sale their goods, wares or merchandise."
      4Alleghany County, Va., Code, supra § 38-9(2)(b).
      5U.S. Const. art. 1, § 8, cl. 3.
      6See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (ruling that laws of New York State, granting certain individuals exclusive navigational rights of state waters for term of years, violated Commerce Clause by prohibiting vessels involved in interstate commerce from navigating said waters).
      7See, e.g., Western Live Stock v. Bureau, 303 U.S. 250 (1938) (ruling as to whether state tax received from sale of advertising space by newspaper or magazine publishers imposes unconstitutional burden on interstate commerce).
      8Cooley v. Board of Wardens of Port of Philadelphia, 53 U.S. (12 How.) 299, 316-19 (1852).
      9See, e.g., Greyhound Lines v. Mealey, 334 U.S. 653, 663 (1948) (holding that state tax on gross receipts from transportation of passengers must be fairly apportioned as to mileage within state; tax on mileage outside state unduly burdens interstate commerce, in violation of Commerce Clause).
      10430 U.S. 274 (1977).
      11Id. at 279.
      12Id.see also Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S.175, 183 (1995).
      13General Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997).
      14Id. at 278.
      15Id. at 300.
      16483 U.S. 266 (1987).
      17Id. at 286-87 (quoting U.S. Const. art. I, § 8, cl. 3).
      18Id. at 285 n.20 (quoting Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091, 1188 (1986)).
      19See Commonwealth Edison Co. v. Montana, 453 U.S. 609, 628-29 (1981).
      20354 U.S. 390, 391-92 (1957).
      21New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 278 (1988).
      22Associated Industries of Mo. v. Lohman, 511 U.S. 641, 648 (1994).
      23483 U.S. at 266.
      24Id. at 296.
      25Commonwealth Edison Co. v. Montana, 453 U.S. at 629.
      26See 1991 Op. Va. Att’y Gen. 122, 124, and opinions cited therein.

What we find interesting about all of this is the 4 prong test.  Not only the 4 prong test, but Gloucester County officials were trying to apply these laws and codes to Daffodil merchants.  Many of which do these events more as a hobby than as a real money making venture.  Nearly every merchant would have failed the 4 prong test above that set up at the Daffodil festival from what we see.  We are continuing to look over all of the laws and rules here to help everyone sort out what all of this means and how it applies to you.

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