Can Fairfax County impose its admissions tax on concerts and shows held at George Mason University's Patriot Center, even though a private company runs the building for the state university?

Plain-English summary

George Mason University's Patriot Center is a large multipurpose venue on the GMU campus in Fairfax County. It hosts both university events and non-university events like concerts and entertainment shows. A private corporation manages the venue under contract with the university. Delegate David Bulova asked whether Fairfax County could require that private manager to collect the county admissions tax on tickets to non-university events.

Acting AG William Mims answered yes, but with a clear factual condition. Section 58.1-3818(A) authorizes Fairfax County to levy an admissions tax up to 10% on event attendance, with the County setting the terms by ordinance. The County can also classify events for tax purposes under § 58.1-3817 (charitable events, school events, museum admissions, sporting events, certain baseball stadium events, and "all other admissions").

The harder issue is who has to collect the tax. A 2001 AG opinion concluded that the City of Norfolk could not impose a duty on Norfolk State University (a state agency) to collect the city's admissions tax. State universities, as instrumentalities of the Commonwealth, are not subject to local ordinances of that kind. Similarly, a 1983 AG opinion concluded that the Town of Blacksburg could not impose its meals tax collection duty on Virginia Tech officers and employees. A 1997 opinion considered James Madison University's situation and concluded that the City of Harrisonburg could not impose its meals tax collection duty on a private dining company that did not actually manage the university's dining facilities.

The 1997 opinion was the operative template. The City could impose the collection duty on a private contractor that actually assumed responsibility for the operations that generated the taxable transactions. Whether the contractor had actually done so was a fact question.

Applied to the Patriot Center, the AG assumed for purposes of his answer that the private management corporation had "contractual responsibility for the complete management of the Center for all non-university functions." On that assumption, Fairfax County may require the private corporation to collect the admissions tax on non-university events. If in fact the private company does not manage non-university events (and the university itself handles them), the County's collection duty could not be imposed on the university.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 58.1-3818(A) is one of a series of admissions tax statutes for specifically enumerated Virginia counties. The provision authorizes Fairfax County (and several others named in the statute) to levy an admissions tax up to 10% and to prescribe by ordinance the terms, conditions, and amount of the tax, including classification between charitable and noncharitable events. The classifications themselves sit in § 58.1-3817, which divides events into six classes under Va. Const. art. X, § 1's uniformity requirement: (1) wholly charitable admissions; (2) public and private elementary, secondary, and college school-sponsored events; (3) museums, botanical or similar gardens, and zoos; (4) sporting event participation; (5) major league baseball stadium events (40,000+ capacity); (6) "all other admissions."

The state-instrumentality limit is unwritten in § 58.1-3818 but established by AG opinion line. State universities are instrumentalities of the Commonwealth, and local ordinances cannot impose duties on them without the General Assembly's authorization. So Fairfax County cannot order GMU to collect admissions tax. The escape valve is private contractors. When a private contractor actually undertakes the operations that produce the taxable transaction (running the venue, selling the tickets, managing the event), the locality may direct the private contractor to collect the local tax just as it would any other private operator.

The state-immunity question is independent of the admissions-tax authorization. Section 58.1-3818(A)'s authorization to "levy a tax on admissions" gives Fairfax County the substantive power. The duty-to-collect question turns on whether the obligor of that collection duty is the state university (no, can't be imposed) or a private operator that has actually assumed the operating role (yes, can be imposed).

Common questions

Could Fairfax County collect the admissions tax directly from ticket-buyers instead of from the venue manager?

The opinion does not analyze that option. The admissions-tax structure is normally an obligation on the venue operator to collect and remit. A direct-collection model from ticket-buyers would be administratively impractical and is not the typical statutory framework.

What if the contract between GMU and the private manager doesn't actually give the manager full responsibility for non-university events?

Then the collection duty cannot be imposed on the private manager for those events, and it cannot be imposed on GMU either. The 1997 opinion is explicit that the duty turns on who has actually assumed operational responsibility. A contract that retains operational control with the university over non-university events would put the events in a tax-collection gap that the County could not bridge by ordinance.

Does this opinion apply to university events at the Patriot Center too?

No. The opinion addresses only non-university events. University-sponsored events typically fall within § 58.1-3817(2)'s classification (school-sponsored events), and the County's ordinance and tax treatment of those events would be governed separately. The opinion does not extend to those.

Could the General Assembly authorize counties to tax state university events?

Yes. The reason Fairfax County cannot now is that the General Assembly has not authorized localities to impose collection duties on state instrumentalities. The General Assembly could change that by amending the relevant tax statutes. The opinion does not opine on whether the General Assembly should do so.

Is the admissions tax a charge to the patron or to the venue?

It is structured as a charge on admissions, collected at the time of admission, and remitted to the County. The economic burden typically lands on the patron (added to the ticket price), but the collection obligation runs against the venue operator. That distinction matters here because it lets the County target the private operator without taxing GMU.

Citations

• Va. Code Ann. § 58.1-3817 (classification of events for admissions tax)
• Va. Code Ann. § 58.1-3818(A) (Fairfax County (and listed counties) admissions tax authorization)
• 2001 Op. Va. Att'y Gen. 184 (City of Norfolk cannot impose admissions tax collection duty on Norfolk State University)
• 1983-1984 Op. Va. Att'y Gen. 381 (Town of Blacksburg cannot impose meals tax on Virginia Tech)
• 1997 Op. Va. Att'y Gen. 184 (city tax collection duty can be imposed on private contractor that actually operates the relevant function, fact-dependent)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-066-Bulova.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

October 2, 2009

The Honorable David L. Bulova
Member, House of Delegates
P.O. Box 106
Fairfax Station, Virginia 22039

Dear Delegate Bulova:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether Fairfax County may adopt an ordinance requiring the private corporation that manages the George Mason University Patriot Center to collect admissions tax on persons who pay to attend non-university events held at the Patriot Center.

Response

It is my opinion, based upon the facts you provide, that Fairfax County may adopt an ordinance requiring the private corporation that manages the George Mason University Patriot Center to collect admissions tax on persons who pay to attend non-university events.

Background

You relate that George Mason University has a large multi-purpose facility on its Fairfax County campus known as the Patriot Center ("Center"). You advise that the Center is a successful venue that is the site of many university functions and is also used for non-university functions. You relate that non-university functions include musical concerts and various other entertainment shows. The Center is managed by a private corporation that also manages other multi-purpose venues.

Applicable Law and Discussion

Section 58.1-3818, entitled "[a]dmissions tax in certain counties," provides that:

A. Fairfax ... Count[y is] hereby authorized to levy a tax on admissions charged for attendance at any event. The tax shall not exceed 10 percent of the amount of charge for admission to any such event. Notwithstanding any other provisions of law, the governing bodies of such counties shall prescribe by ordinance the terms, conditions and amount of such tax and may classify between events conducted for charitable and those conducted for noncharitable purposes.

Thus, § 58.1-3818(A) authorizes Fairfax County to levy a tax on admissions charged for attendance at any event. Further, the County is authorized to prescribe the terms, conditions, and amount of such admissions tax. Finally, § 58.1-3817 divides events into six classes:

In accordance with the provisions of Article X, Section 1 of the Constitution of Virginia, events to which admission is charged shall be divided into the following classes for the purposes of taxation:

1. Admissions charged for attendance at any event, the gross receipts of which go wholly to charitable purpose or purposes.

2. Admissions charged for attendance at public and private elementary, secondary, and college school-sponsored events, including events sponsored by school-recognized student organizations.

3. Admissions charged for entry into museums, botanical or similar gardens, and zoos.

4. Admissions charged to participants in order to participate in sporting events.

5. Admissions charged for entry into major league baseball games and events at any major league baseball stadium which has seating for at least 40,000 persons.

6. All other admissions.

In a prior opinion ("2001 Opinion"), the Attorney General considered whether the City of Norfolk could require Norfolk State University to collect and remit the admission tax imposed by ordinance by the City of Norfolk.[1] The 2001 Opinion concludes that the Norfolk ordinance, which purports to impose a duty on the Commonwealth or its instrumentalities to collect an admission tax, is ultra vires.[2] In a similar vein, another opinion ("1983 Opinion") considered whether the Town of Blacksburg could impose upon the officers and employees of a state university the obligation to collect the town meals tax for the meals sold by the university.[3] The 1983 Opinion also concluded that the town has no authority to impose on the university the duty to collect and report the local meals tax.[4]

Finally, a 1997 opinion ("1997 Opinion") considered whether the City of Harrisonburg may require James Madison University or a private company that provides management services to the University to collect the city meals tax on the meals the University sells to its students through its dining services.[5] Because the private company did not manage the University's dining facilities, the city could not impose a tax collection duty on the private company.[6] The 1997 Opinion also noted that whether the private company has assumed responsibility for the operation of the University's dining system was a question of fact.[7]

In the situation you present, you advise that the Center also is used for a number of popular non-university functions, such as musical concerts and various other entertainment shows. Whether the private corporation that manages the Center has assumed responsibility for such non-university functions also is a question of fact. For purposes of this opinion, I assume that the private management corporation does, in fact, have contractual responsibility for the complete management of the Center for all non-university functions. Based upon that assumption, Fairfax County would be authorized to adopt an ordinance to levy a tax on the admissions charged by the private corporation for attendance at non-university functions.

Conclusion

Accordingly, it is my opinion, based upon the facts you provide, that Fairfax County may adopt an ordinance requiring the private corporation that manages the George Mason University Patriot Center to collect admissions tax on persons who pay to attend non-university events.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. See 2001 Op. Va. Att'y Gen. 184.
2. Id. at 185 (citing 1983-1984 Op. Va. Att'y Gen. 381, 383).
3. See 1983 Op. Va. Att'y Gen., supra note 2, at 381.
4. Id. at 383.
5. See 1997 Op. Va. Att'y Gen. 184.
6. Id. at 185.
7. Id.