Sec. 40-221. - Application for correction.

Any person assessed by the commissioner of the revenue, or other official performing duties imposed on the commissioner of the revenue by Title 58.1 of the State Code, as amended, with respect to local taxes on tangible personal property, machinery and tools, local business, professional and occupational licenses, transient occupancies, daily rentals, food and beverages and admissions, or by the assessor with respect to local taxes on real property, who is aggrieved by any such assessment, may within three (3) years from the last day of the tax year for which such assessment is made, or within one (1) year from the date of assessment, whichever is later, apply in writing to the official who made the assessment for a correction thereof.

(Ord. No. 3349-85, § 1; Ord. No. 3930-89, § 1; Ord. No. 3948-89, § 1; Ord. No. 4277-91, § 1; Ord. No. 4394-92; Ord. No. 5326-99)

Sec. 40-222. - Correction of assessment.

If such assessing official is satisfied that he has erroneously assessed such applicant with any such tax, he shall correct such assessment and certify a copy of the correction to the city treasurer.

(Ord. No. 3349-85, § 1)

Sec. 40-223. - Exoneration or refund of taxes.

If the assessment exceeds the proper amount, the assessing official shall exonerate the applicant from the payment of so much as is erroneously charged if not already paid into the treasury of the city. If the taxes have been paid, the city treasurer shall refund to the applicant the amount erroneously paid.

(Ord. No. 3349-85, § 1)

Sec. 40-224. - Interest on the refunds of assessed and paid taxes and fees.

(a)

Unless otherwise specifically provided by law, erroneously assessed taxes and fees on real property, tangible personal property; machinery and tools; business, professional, and occupational licenses; food and beverages; transient occupancies; admissions and daily rentals, which have been paid by the taxpayer, shall be refunded to the taxpayer with interest at the same rate as would have been charged if such taxes were delinquent.

(b)

No interest shall be paid on such refunds of erroneously assessed taxes and fees on real property; tangible personal property; machinery and tools; food and beverages; transient occupancies; admissions and daily rentals if (i) the amount of the refund is ten dollars ($10.00) or less, or (ii) the refund is the result of proration pursuant to section 40-216 of this Code, as amended, or § 58.1-3516 of the Code of Virginia, 1950, as amended.

(c)

For purposes of this section, "erroneously assessed taxes and fees" shall not include erroneous assessments caused solely by a person failing to file a return or filing an inaccurate return, regardless of the reason; nor shall it include refunds due to corrections of assessments due to sale, transfer or other disposition of property.

(Ord. No. 3349-85, § 1; Ord. No. 3992-90; Ord. No. 4912-96; Ord. No. 5326-99; Ord. No. 5515-00)

Sec. 40-225. - Limitation on refunds.

No refund shall be made in any case when application therefor was made more than three (3) years after the last day of the tax year for which such taxes were assessed within one (1) year from the date of assessment, whichever is later.

(Ord. No. 3349-85, § 1; Ord. No. 3930-89, § 1; Ord. No. 3948-89, § 1; Ord. No. 4277-91, § 1; Ord. No. 4394-92)

Sec. 40-226. - Appeals and rulings of certain local business taxes; definitions.

Definitions. For purposes of sections 40-226.1 through 40-226.10:

Amount in dispute when used with respect to taxes due or assessed, means the amount specifically identified in the administrative appeal or application for judicial review as disputed by the party filing such appeal or application.

Frivolous means a finding, based upon specific facts, that the party asserting the appeal is unlikely to prevail upon the merits because the appeal is (i) not well grounded in fact; (ii) not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (iii) interposed for an improper purpose, such as to harass, to cause unnecessary delay in the payment of tax or a refund, or to create needless cost from the litigation; or (iv) otherwise frivolous.

Jeopardized by delay means a finding, based upon specific facts, that a taxpayer desires to (i) depart quickly from the city, (ii) remove his property therefrom, (iii) conceal himself or his property, or (iv) do any other act tending to prejudice, or to render wholly or partially ineffectual, proceedings to collect the tax for the period in question.

Local business tax means machinery and tools tax, business tangible personal property tax (including, without limitation, computer equipment), and a consumer utility tax where the amount in dispute exceeds two thousand five hundred dollars ($2,500.00) other than the tax collected on mobile telecommunication service as defined in State Code § 58.1-3812.

Local mobile property tax means the tangible personal property tax on airplanes, boats, campers, recreational vehicles, and trailers.

Tax commissioner means the Chief Executive Officer of the Virginia Department of Taxation or his delegate.

Taxpayer includes a business required to collect a local consumer utility tax to the extent that the business is charged or assessed with such tax.

(Ord. No. 5382-00; Ord. No. 6254-06, § 1)

Sec. 40-226.1. - Administrative appeal to commissioner of the revenue or other assessing official.

(a)

Any person assessed with any local mobile property tax or local business tax as defined in section 40-226 may appeal such assessment within one (1) year from the last day of the tax year for which such assessment is made, or within one (1) year from the date of such assessment, whichever is later, to the commissioner of the revenue or other assessing official.

(b)

The appeal shall be filed in good faith and sufficiently identify the taxpayer, the tax period covered by the challenged assessment, the amount in dispute, the remedy sought, each alleged error in the assessment, the grounds upon which the taxpayer relies, and any other facts relevant to the taxpayer's contention.

(c)

The commissioner of the revenue or other assessing official may hold a conference with the taxpayer if requested by the taxpayer, or require submission of additional information and documents, an audit or further audits, or other evidence deemed necessary for a proper and equitable determination of the application.

(d)

The assessment shall be deemed prima facie correct.

(e)

The commissioner of the revenue or other assessing official shall undertake a full review of the taxpayer's claims and issue a written determination to the taxpayer setting forth the facts and arguments in support of his decision within ninety (90) days after such appeal is filed. Such determination shall be accompanied by a written explanation of the taxpayer's right to file an administrative appeal of the determination to the tax commissioner pursuant to section 40-226.3

(f)

Any taxpayer whose administrative appeal to the commissioner of the revenue or other assessing official pursuant to this subsection has been pending for more than one (1) year without the issuance of a final determination may, upon not less than thirty (30) days' written notice to the commissioner of the revenue or other assessing official, elect to treat the application as denied and appeal the assessment to the tax commissioner in accordance with the provisions of section 40-226.3. The tax commissioner shall not consider an appeal filed pursuant to the provisions of this subsection if he finds that the absence of a final determination on the part of the commissioner of the revenue or other assessing official was caused by the willful failure or refusal of the taxpayer to provide information requested and reasonably needed by the commissioner of the revenue or other assessing official to make his determination.

(Ord. No. 6254-06, § 1)

Sec. 40-226.2. - Suspension of collection activity pending administrative appeal to commissioner of the revenue or other assessing official.

Provided a timely and complete appeal is filed pursuant to section 40-226.1, collection activity shall be suspended by the treasurer or other official responsible for the collection of such tax until a final determination is issued by the commissioner of the revenue or other assessing official, unless the treasurer or other collection official (i) determines that collection would be jeopardized by delay as defined in section 40-226; or (ii) is advised by the commissioner of the revenue or other assessing official that the taxpayer has not responded to a request for relevant information after a reasonable time. Interest shall accrue on the late payment of the tax from the due date until the date paid without regard to fault or other reason for the late payment, but no further penalty shall be imposed while collection action is suspended. Whenever an assessment of a local business tax by the commissioner of the revenue or other assessing official is found to be erroneous, all interest and penalties charged and collected on the amount of the assessment found to be erroneous shall be refunded together with interest on the refund from the date of payment or the due date, whichever is later. Interest on any refund shall be paid as provided in section 40-224.

(Ord. No. 6254-06, § 1)

Sec. 40-226.3. - Administrative appeal to tax commissioner.

(a)

Any person whose administrative appeal to the commissioner of the revenue or other assessing official pursuant to section 40-226.1 has been denied in whole or in part may appeal the determination of the commissioner of the revenue or other assessing official by filing an appeal with the tax commissioner and serving a copy of the appeal upon the commissioner of the revenue or other assessing official within ninety (90) days of the date of the determination of the commissioner of the revenue or other assessing official. The appeal shall include a copy of the written determination of the commissioner of the revenue or other assessing official that is challenged, together with a statement of the facts and grounds upon which the taxpayer relies.

(b)

The tax commissioner shall determine whether he has jurisdiction to hear the appeal within thirty (30) days of receipt of the taxpayer's appeal.

(c)

If the tax commissioner determines that he has jurisdiction, he shall provide the commissioner of the revenue or other assessing official with an opportunity to respond to the appeal and permit the commissioner of the revenue or other assessing official to participate in the proceedings. The tax commissioner shall issue a determination to the taxpayer within ninety (90) days of receipt of the taxpayer's appeal, unless the taxpayer and the commissioner of the revenue or other assessing official are notified that a longer period will be required. Such longer period of time shall not exceed sixty (60) days, and the tax commissioner shall notify the affected parties of the reason necessitating the longer period of time. If the tax commissioner is unable to issue a determination within the sixty-day extension period due to the failure of an affected party to supply the tax commissioner with necessary information, the tax commissioner shall certify this fact in writing prior to the expiration of the extension period. The tax commissioner shall then issue his determination within sixty (60) days of receipt of such necessary information.

(d)

The appeal shall be treated as an application pursuant to State Code § 58.1-1821, and the tax commissioner may issue an order correcting such assessment of such property pursuant to State Code § 58.1-1822, if the taxpayer has met the burden of proof provided in State Code § 58.1-3987.

(e)

The tax commissioner shall not make a determination regarding the valuation or the method of valuation of property subject to any local tax other than a local business tax.

(Ord. No. 6254-06, § 1)

Sec. 40-226.4. - Suspension of collection activity during administrative appeal to tax commissioner.

On receipt of a notice of intent to file an appeal to the tax commissioner under section 40-226.3, the treasurer or other official responsible for the collection of such tax shall further suspend collection activity until a final determination is issued by the tax commissioner, unless the treasurer or other collection official (i) determines that collection would be jeopardized by delay as defined in section 40-226; or (ii) is advised by the commissioner or other assessing official that the taxpayer has not responded to a request for relevant information after a reasonable time. The requirement that collection activity be suspended shall cease unless an appeal pursuant to section 40-226.3 is filed and served on the necessary parties within thirty (30) days of the service of the notice of intent to file such appeal. Interest shall accrue on the late payment of the tax from the due date until the date paid without regard to fault or other reason for the late payment, but no further penalty shall be imposed while collection action is suspended. Whenever an assessment of a local business tax by the commissioner of the revenue or other assessing official is found to be erroneous, all interest and penalties charged and collected on the amount of the assessment found to be erroneous shall be refunded together with interest on the refund from the date of payment or the due date, whichever is later. Interest on any refund shall be paid as provided in section 40-224.

(Ord. No. 6254-06, § 1)

Sec. 40-226.5. - Implementation of determination of tax commissioner.

Promptly upon receipt of a final determination of the tax commissioner, the commissioner of the revenue or other local assessing official shall take those steps necessary to calculate the amount of tax owed by or refund due to the taxpayer consistent with the tax commissioner's determination and shall provide that information to the taxpayer and to the treasurer or other official responsible for collection in accordance with the provisions of this subsection.

(a)

If the determination of the tax commissioner sets forth a specific amount of tax due, the commissioner of the revenue or other assessing official shall certify this amount to the treasurer or other official responsible for collection, and the treasurer or other official responsible for collection shall issue a bill to the taxpayer for such amount due, together with interest accrued, within thirty (30) days of the date of the determination of the tax commissioner.

(b)

If the determination of the tax commissioner sets forth a specific amount of refund due, the commissioner of the revenue or other assessing official shall certify this amount to the treasurer or other official responsible for collection, and the treasurer or other official responsible for collection shall issue a payment to the taxpayer for such amount due, together with interest accrued, within thirty (30) days of the date of the determination of the tax commissioner.

(c)

If the determination of the tax commissioner does not set forth a specific amount of tax due, or otherwise requires the commissioner of the revenue or other assessing official to undertake a new or revised assessment that will result in the determination of a tax due that has not previously been paid in full, the commissioner of the revenue or other assessing official shall promptly commence the steps necessary to undertake such new or revised assessment, and provide the same to the taxpayer within sixty (60) days of the date of the determination of the tax commissioner, or within sixty (60) days after receipt from the taxpayer of any additional information requested or reasonably required under the determination of the tax commissioner, whichever is later. The commissioner of the revenue or other assessing official shall certify the new assessment to the treasurer or other official responsible for collection, and the treasurer or other official responsible for collection shall issue a bill to the taxpayer for the amount due, together with interest accrued, within thirty (30) days of the date of the new assessment.

(d)

If the determination of the tax commissioner does not set forth a specific amount of refund due, or otherwise requires the commissioner of the revenue or other assessing official to undertake a new or revised assessment that will result in the determination of a refund of taxes previously paid, the commissioner of the revenue or other assessing official shall promptly commence the steps necessary to undertake such new or revised assessment, and provide the same to the taxpayer within sixty (60) days of the date of the determination of the tax commissioner, or within sixty (60) days after receipt from the taxpayer of any additional information requested or reasonably required under the determination of the tax commissioner, whichever is later. The commissioner of the revenue or other assessing official shall certify the new assessment to the treasurer or other official responsible for collection, and the treasurer or other official responsible for collection shall issue a refund to the taxpayer for the amount of tax due, together with interest accrued, within thirty (30) days of the date of the new assessment.

(Ord. No. 6254-06, § 1)

Sec. 40-226.6. - Judicial review of determination of tax commissioner.

Following the issuance of a final determination of the tax commissioner pursuant to section 40-226.3, the taxpayer or commissioner of the revenue or other assessing official may apply to the appropriate circuit court for judicial review of the determination, or any part thereof, pursuant to section 40-227. In any such proceeding for judicial review of a determination of the tax commissioner, the burden shall be on the party challenging the determination of the tax commissioner, or any part thereof, to show that the ruling of the tax commissioner is erroneous with respect to the part challenged. Neither the tax commissioner nor the department of taxation shall be made a party to an application to correct an assessment merely because the tax commissioner has ruled on it.

(Ord. No. 6254-06, § 1)

Sec. 40-226.7. - Suspension of payment of disputed amount of tax due upon taxpayer's notice of intent to initiate judicial review.

(a)

On receipt of a notice of intent to file an application for judicial review, pursuant to section 40-227, of a determination of the tax commissioner pursuant to section 40-226.3, and upon payment of the amount of the tax that is not in dispute together with any penalty and interest then due with respect to such undisputed portion of the tax, the treasurer or other collection official shall further suspend collection activity while the court retains jurisdiction unless the court, upon appropriate motion after notice and an opportunity to be heard, determines that (i) the taxpayer's application for judicial review is frivolous, as defined in this section; (ii) collection would be jeopardized by delay, as defined in this section; or (iii) suspension of collection would cause substantial economic hardship to the locality. For purposes of determining whether substantial economic hardship to the locality would arise from a suspension of collection activity, the court shall consider the cumulative effect of then-pending appeals filed within the locality by different taxpayers that allege common claims or theories of relief.

(b)

Upon a determination that the appeal is frivolous, that collection may be jeopardized by delay, or that suspension of collection would result in substantial economic hardship to the locality, the court may require the taxpayer to pay the amount in dispute or a portion thereof, or to provide surety for payment of the amount in dispute in a form acceptable to the court.

(c)

No suspension of collection activity shall be required if the application for judicial review fails to identify with particularity the amount in dispute.

(d)

The requirement that collection activity be suspended shall cease unless an application for judicial review pursuant to section 40-227 is filed and served on the necessary parties within thirty (30) days of the service of the notice of intent to file such application.

(e)

The suspension of collection activity authorized by this subdivision shall not be applicable to any appeal of a local business tax or local mobile property tax that is initiated by the direct filing of an action pursuant to section 40-227 without prior exhaustion of the appeals provided by sections 40-226.1 and 40-226.3

(Ord. No. 6254-06, § 1)

Sec. 40-226.8. - Suspension of payment of disputed amount of refund due upon locality's notice of intent to initiate judicial review.

(a)

Payment of any refund determined to be due pursuant to the determination of the tax commissioner shall be suspended if the locality assessing the tax serves upon the taxpayer, within sixty (60) days of the date of the determination of the tax commissioner, a notice of intent to file an application for judicial review of the tax commissioner's determination pursuant to section 40-227 and pays the amount of the refund not in dispute, including tax and accrued interest. Payment of such refund shall remain suspended while the court retains jurisdiction unless the court, upon appropriate motion after notice and an opportunity to be heard, determines that the locality's application for judicial review is frivolous, as defined in this section.

(b)

No suspension of refund activity shall be permitted if the locality's application for judicial review fails to identify with particularity the amount in dispute.

(c)

The requirement that the obligation to make a refund be suspended shall cease unless an application for judicial review pursuant to section 40-227 is filed and served on the necessary parties within thirty (30) days of the service of the notice of intent to file such application.

(Ord. No. 6254-06, § 1)

Sec. 40-226.9. - Rulings and advisory opinions.

(a)

Written rulings from commissioner of the revenue or other assessing official. Any taxpayer or authorized representative of a taxpayer may request a written ruling regarding the application of a local mobile property tax or a local business tax to a specific situation from the commissioner of the revenue or other assessing official. Any taxpayer requesting such a ruling shall provide all facts relevant to the situation and may present a rationale for the basis of an interpretation of the law most favorable to the taxpayer. Any misrepresentation or change in the applicable law or the factual situation as presented in the ruling request shall invalidate any such ruling issued. A written ruling may be revoked or amended prospectively if (i) there is a change in the law, a court decision, or the guidelines issued by the Virginia Department of Taxation upon which the ruling was based or (ii) the commissioner of the revenue or other assessing official notifies the taxpayer of a change in the policy or interpretation upon which the ruling was based. However, any taxpayer who acts on a written ruling which later becomes invalid shall be deemed to have acted in good faith during the period in which such ruling was in effect.

(b)

Advisory opinions of the tax commissioner. The tax commissioner shall have the authority to issue advisory written opinions in specific cases as requested to interpret a local business tax and matters related to the administration thereof when an assessment of that tax is subject to appeal to the tax commissioner under this chapter. Opinions issued pursuant to this section shall not be applicable as an interpretation of any other tax law.

(Ord. No. 6254-06, § 1)

Sec. 40-226.10. - Record-keeping and audits.

Every person who is assessable with a local mobile property tax or a local business tax shall keep sufficient records to enable the commissioner of the revenue or other assessing official to verify the correctness of the tax paid for the taxable years assessable and to enable the commissioner of the revenue or other assessing official to ascertain the correct amount of tax assessable for each of those years. All such records, books of accounts and other information shall be open to inspection and examination by the commissioner of the revenue or other assessing official in order to allow him to establish whether the tax is due within this jurisdiction. The commissioner of the revenue or other assessing official shall provide the taxpayer with the option to conduct the audit in the taxpayer's local business office, if the records are maintained there. In the event the records are maintained outside this jurisdiction, copies of the appropriate books and records shall be sent to the commissioner's or assessor's office upon demand.

(Ord. No. 6254-06, § 1)

Sec. 40-227. - Application to court to correct erroneous assessments of local levies generally.

(a)

Any person assessed with local taxes, aggrieved by any such assessment, may, unless otherwise specially provided by law, (i) within three (3) years from the last day of the tax year for which any such assessment is made, (ii) within one (1) year from the date of the assessment, or (iii) within one (1) year from the date of the tax commissioner's final determination under section 23-8.2 or section 40-226.3, or (iv) within one (1) year from the date of the final determination under section 40-221, whichever is later, apply for relief to the Circuit Court of the City of Newport News. The application shall be before the court when it is filed in the clerk's office. In such proceeding, except as may be provided by section 23-8.3 and section 40-226.6, the burden of proof shall be upon the taxpayer to show that the property in question is valued at more than its fair market value or that the assessment is not uniform in its application, or that the assessment is otherwise invalid or illegal, but it shall not be necessary for the taxpayer to show that intentional, systematic and willful discrimination has been made. The proceedings shall be conducted as an action at law before the court, sitting without a jury. The city attorney shall defend the application.

(b)

In the event it comes or is brought to the attention of the commissioner of the revenue that the assessment of any tax is improper or is based on obvious error and should be corrected in order that the ends of justice may be served, and he is not able to correct it under this article, the commissioner of the revenue shall apply to the Newport News Circuit Court, in the manner herein provided for relief of the taxpayer. Such application may include a petition for relief for any of several taxpayers.

(Ord. No. 5382-00; Ord. No. 6255-06, § 1)

Secs. 40-228, 40-229. - Reserved.