Hampton Nissan Ltd. Partnership v. City of Hampton, 950732

• Decision Date: 12 January 1996
• Docket Number: No. 950732,950732
• Citation: 251 Va. 100,466 S.E.2d 95
• Court: Virginia Supreme Court
• Parties: HAMPTON NISSAN LIMITED PARTNERSHIP, et al. v. CITY OF HAMPTON. Record

Page 95

466 S.E.2d 95

251 Va. 100

HAMPTON NISSAN LIMITED PARTNERSHIP, et al. v. CITY OF HAMPTON.

Record No. 950732.

Supreme Court of Virginia.

Jan. 12, 1996.

J. Nelson Happy, Newport News (Huber-Happy & Hudgins, on briefs), for appellants.

Richard D. Caplan, Deputy City Attorney, for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, LACY, HASSELL and KEENAN, JJ., and POFF, Senior Justice.

HASSELL, Justice.

In this appeal, we consider whether a city may collect, as license taxes, payments in excess of the rate permitted by law that a motor vehicle dealer had collected improperly from motor vehicle purchasers.

The litigants have stipulated the relevant facts. The City of Hampton is a municipal corporation. Hampton Nissan Limited Partnership is a Virginia limited partnership which sells new and used motor vehicles at its dealership in Hampton. Hampton Nissan of Virginia, Inc., a Virginia corporation, is the general partner of Hampton Nissan Limited Partnership. Hampton Nissan Limited Partnership and Hampton Nissan of Virginia, Inc., collectively will be referred to as Hampton Nissan.

Code § 58.1-3703 permits a governing body of a city to levy and provide for the assessment and collection of license taxes on businesses. Code § 58.1-3706 establishes the maximum rate of taxation for license taxes and imposes certain limitations upon the tax rate. The City Council of Hampton enacted ordinances that established the license tax at the maximum rate authorized by the General Assembly, twenty cents per $100 of gross sales. The litigants have stipulated that Hampton Nissan has paid this amount.

Hampton Nissan, however, improperly charged its customers an amount in excess of the imposed license tax rate. Hampton's commissioner of revenue forwarded a letter to Hampton Nissan and requested that it remit to the City $47,199.70, the amount of the overpayments. Subsequently, Hampton Nissan published a notice in a local newspaper and offered to refund the overpayments to its customers. Hampton Nissan refunded $2,020.65 to its customers and retained the balance of the overpayments.

The City filed its motion for judgment against Hampton Nissan, seeking to collect the overpayments. The City stated in its motion for judgment that "[a]ny judgment received by the City for the disputed amounts will be treated as a tax. Any purchaser may apply for a refund with appropriate documentation within the applicable statute of limitations. Monies will be refunded by the City to those purchasers at that time."

The trial court held that Hampton Nissan collected the overpayments as license taxes and awarded summary judgment in favor of the City. We awarded Hampton Nissan an appeal.

Hampton Nissan argues that the City does not have the statutory authority to collect, under the guise of a tax, the overpayments that Hampton Nissan had improperly received from its customers. Hampton Nissan asserts that the City may not collect a tax unless it has specific statutory authority to do so and that no such authority exists.

The City, relying upon Code § 58.1-16 and certain provisions of the City's Code, contends that it has express authority to collect the overpayments as license taxes. We disagree with the City.

Code § 58.1-16 states:

Any person responsible for collecting any tax administered by the Department [of Taxation] or the Division of Motor Vehicles who overcollects such tax and fails to account for and pay such overcollection to the appropriate state agency by the time his regular monthly or quarterly return is due shall be liable for the amount of such overcollection, and in addition a penalty of twenty-five percent of such overcollection. The Commissioner administering such tax may waive such penalty for good cause.

Contrary to the City's assertion, Code § 58.1-16 is simply not applicable here. As the City's stipulations of fact demonstrate, the license tax, which is at issue in this case, is administered and imposed by the City, not the Department of Taxation or the Division of Motor Vehicles. The stipulations also indicate that the license tax is paid annually, not monthly or quarterly. Additionally Hampton Nissan is not a "person responsible for collecting any tax administered by the Department [of Taxation] or the Division of Motor Vehicles." Therefore, Code § 58.1-16 does not confer a positive grant of taxing power upon the City to collect the excess tax payments.

We also reject the City's argument that § 6.17 of the Hampton Code gives the City express authority to collect the overpayments as a tax. Section 6.17 of the Code states:

The city collector of taxes shall have any or all the powers which are now or which may be hereafter vested in any office of the state charged with the collection of state taxes and may collect the same in the same manner in which the state taxes are collected by any officer of this state.

The plain language in this provision merely permits the City's collector of taxes to utilize any powers which are conferred upon state officers when the City's collector seeks to collect state taxes on behalf of the state.

The City also relies upon § 18-5 of the Hampton Code which states:

As to all questions in regard to the duty and conduct of officers of the city on collecting and enforcing the taxes imposed by this chapter and in...