Introduced Version
House Bill 2993 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2993
(By Delegates Shott, Gearheart, Ellington,
Moore, Manchin, Miller and Ambler)
[Introduced March 20, 2013; referred to the
Committee on Political Subdivisions then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §11-28-1, §11-28-2,
§11-28-3, §11-28-4, §11-28-5, §11-28-6, §11-28-7 and §11-28-8,
all relating to allowing counties and municipalities to levy
a sales tax on food and beverages sold at restaurants;
providing for county and municipality options; limiting the
total tax to three percent; limiting a municipal tax to two
percent; setting forth the procedures for counties or
municipalities to use to impose the tax; requiring
publication; setting forth how the collected tax may be used;
setting forth apportionment of the tax between local
jurisdictions; setting forth exemptions from the tax; defining
terms; and providing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §11-28-1, §11-28-2,
§11-28-3, §11-28-4, §11-28-5, §11-28-6, §11-28-7 and §11-28-8, all
to read as follows:
ARTICLE 28. LOCAL OPTION FOOD AND BEVERAGE TAX.
§11-28-1. Food and beverage tax.
_____A county or municipality is authorized to levy a tax on food
and beverages sold for human consumption by a restaurant as defined
in this article. Any tax levied under this article may not exceed
three percent of the gross amount charged for the food and
beverages.
§11-28-2. Definitions.
_____As used in this article:
_____"Alcoholic beverage" means any alcohol, beer, wine and
spirits, and any liquid or solid capable of being used as a
beverage, including any beverage that consists of a mixture of
alcoholic and nonalcoholic liquids or solids.
_____"Beverage" means any alcoholic or nonalcoholic liquid intended
for human consumption.
_____"Fund-raising organization" means any church, school,
fraternal or social organization, volunteer fire department or
rescue squad that periodically sells food and beverages for public
consumption to raise funds to benefit that organization.
_____"Municipal" or "municipality" means any city or town.
_____"Not-for-profit capacity" means the sale of food for the
intentional purpose of equaling the operating costs of the
restaurant.
_____"Restaurant" means any place where food is prepared for
service to the public on or off the premises, or any place where
food is served, including, but not limited to, lunchrooms, food
counters, food trucks or carts, short order or fast food eateries,
cafeterias, coffee shops, cafes, taverns, delicatessens, dining
accommodations of public or private clubs, kitchen facilities of
hospitals and nursing homes and dining accommodations of public and
private schools and colleges.
§11-28-3. County option.
_____(a) Any tax levied under this article must be approved by
referendum within the county in which the tax is to be levied by a
margin of at least sixty percent of those voting.
_____(b) A referendum for imposition of a county food and beverage
tax may be initiated by:
_____(1) A resolution of the county commission; or
_____(2) A petition filed with the county commission signed by a
minimum of ten percent of the county's registered voters as of
January 1 in the year in which the petition is filed.
_____(c) A petition or resolution may designate the length of time
of the tax's imposition and the projects or purposes for which the
tax will be levied: Provided, That the information is included on
the referendum's ballot.
_____(d) The county commission shall publish a Class III legal
advertisement in compliance with article three, chapter fifty-nine
of this code in a newspaper of general circulation in the county.
§11-28-4. Collection of tax; use.
_____(a) Any tax levied pursuant to section three of this article
shall be collected in a manner prescribed by the county commission.
_____(b) Any tax levied under section three of this article shall
be placed in the county's general revenue fund and expended as the
county commission desires: Provided, That any projects or purposes
designated for the imposition of the tax and included on the
referendum ballot shall be paid as follows:
_____(1) At least twenty-five percent or such greater portion of
the collected tax as may be agreed between the county commission
and the county's economic development authority prior to the
publication required by subsection (d), section three of this
article shall be remitted by the county to the county's economic
development authority to be expended for economic development
purposes;
_____(2) For all restaurants located within a municipality, at
least twenty-five percent or a greater portion of the collected tax
from each restaurant as may be agreed between the county commission and the municipality shall be remitted by the county to the
municipality to be expended in a manner which the municipality's
governing body desires.
§11-28-5. Municipal option.
_____(a) Any municipality located in a county that has not levied,
or sought to levy, a food and beverage tax within one year
following the effective date of this article, is authorized to levy
a tax on food and beverages sold for human consumption by a
restaurant as defined in this article. Any tax levied under this
article may not exceed two percent of the gross amount charged for
such food and beverages.
_____(b) Any tax levied under this article must be approved by
referendum within the municipality in which the tax is to be levied
by a margin of at least sixty percent of the voters who vote in the
referendum.
_____(c) A referendum for imposition of municipal food and beverage
tax may be initiated by:
_____(1) A resolution of the municipality's governing body; or
_____(2) A petition filed with the municipality's governing body
signed by a minimum of ten percent of the municipality's registered
voters as of January 1 in the year in which the petition is filed.
_____(d) A petition or resolution may designate the length of time
of the tax's imposition or projects or purposes for which the tax
will be levied: Provided, That the information is included on the
referendum's ballot.
_____(e) The municipality's governing body shall publish a Class
III legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code in a newspaper of
general circulation in the municipality.
§11-28-6. Exemptions.
_____(a) This tax is applicable to restaurants whose food and
beverage preparation and service are regulated by county boards of
health. Any tax levied under this article may not be levied upon
food and beverages sold from:
_____(1) Places manufacturing packaged or canned foods which are
distributed to grocery stores or other similar food retailers for
sale to the public;
_____(2) Vending machines;
_____(3) Restaurants operating in a not-for-profit capacity;
_____(4) Churches serving meals as a regular part of regular
religious observances;
_____(5) Fund-raising organizations; or
_____(6) Food counters or delicatessens that operate as part of a
larger retail business which:
_____(A) Food and beverage sales do not exceed thirty percent of
the larger retail business's total gross sales; and
_____(B) Have ten or fewer seats on the premises at which food is consumed.
_____(b) Any tax levied pursuant to this article may not be applied
to any discretionary gratuity paid by the purchaser in addition to
the sales price, nor to any mandatory gratuity or service charge
added by the restaurant to the sales price that does not exceed
twenty percent of the sales price.
§11-28-7. Wrongful and fraudulent use of funds; penalty.
_____All food and beverage tax collections are considered in trust
for the county or municipality imposing the applicable tax. The
wrongful and fraudulent use of the proceeds other than remittance
to the county or municipality as provided by this article
constitutes embezzlement pursuant to section twenty, article three,
chapter sixty-one of this code and is subject to the criminal
penalties of that section.
§11-28-8. Apportionment.
_____If a business is located partially within two or more local
jurisdictions because of a boundary line that passes through the
place of business, and one or more of the local jurisdictions
imposes the food and beverage tax, the tax rate of each applicable
local jurisdiction shall be apportioned between the local
jurisdictions. The apportionment shall be based upon the area in
the political subdivision which the place of business actually
occupies and actively uses in connection with the business.
NOTE: The purpose of this bill is to allow local governments
to levy a sales tax on food and beverages sold at restaurants. The
bill providing for county and municipality options. The bill limits
the total tax to three percent. The bill limits a municipal tax to
two percent. The bill sets forth the procedures for counties and
municipalities to use to impose the tax. The bill requires
publication. The bill sets forth how the collected tax may be used.
The bill sets forth apportionment of the tax between local
jurisdictions. The bill sets forth exemptions from the tax. The
bill defines terms. The bill provides criminal penalties.
This article is new; therefore, it has been completely
underscored.