Can a Virginia county pick which kinds of events get hit with an admissions tax, or does it have to tax all events the same?

Plain-English summary

Loudoun County's county attorney asked the AG whether a county could selectively tax certain types of events under Virginia's admissions-tax framework. The framework has two key pieces:

• Section 58.1-3818 gives counties a general authority to "levy a tax on admissions charged for attendance at any event."
• Section 58.1-3817 divides taxable events into six classes for uniformity-clause purposes, the first five enumerated (charitable, school-sponsored, museums/gardens/zoos, sporting-event participation fees, major league baseball at 40,000+ stadiums) and the sixth being "All other admissions."

The AG concluded that within the sixth class (the catch-all), a county can define which specific events it wants to tax, so long as events within the defined class are taxed uniformly. The county is not required to tax every conceivable event under § 58.1-3817(6); it can choose, say, concerts but not flea markets. Whatever it picks must be applied to all events of that type uniformly.

The reasoning is grounded in the plain language of § 58.1-3818 ("any event") and the uniformity clause in Va. Const. art. X, § 1, which is preserved by § 58.1-3817's enumerated classes. The county's discretion to select within the catch-all flows from the broad authority in § 58.1-3818, and the uniformity protection flows from § 58.1-3817's class structure.

What this means for you

County supervisors considering an admissions tax

The opinion holds that under § 58.1-3818's broad "any event" authority, a county may define which events within the § 58.1-3817(6) "all other admissions" catch-all it taxes, and need not tax every event that could fall under (6). It holds that the tax must apply uniformly to all events within whatever class the county defines, as § 58.1-3817 requires under the uniformity clause.

Event organizers

The opinion holds that a county may treat one type of event differently from another by placing them in different classes, but must tax all events within a single defined class uniformly. That uniformity requirement comes from § 58.1-3817 and Va. Const. art. X, § 1.

Venue operators

The opinion holds that a county's discretion to select which events it taxes is bounded by the uniformity requirement: whether a given venue's events are taxed turns on whether they fall within a class the county has defined and taxed, and all events in that class must be treated the same.

Common questions

Q: My county taxes admissions to professional sports games but not to community theater. Is that legal?
A: Per this 2021 opinion, yes, those are different classes under § 58.1-3817 (professional sports could fall under (6) "other admissions," while community theater performances might too, depending on how the county defines its class). The county can choose, but must apply uniformly within whatever class it defines.

Q: My county taxes commercial concerts at venues over 1,000 seats but not at smaller venues. Is that allowed?
A: That defines a class within (6) by seating capacity. The opinion supports county authority to define classes that way, as long as the tax is applied uniformly within the defined class.

Q: Can the county tax me but not the venue next door if we both host the same type of event?
A: No. Uniformity within a class requires equal treatment. If both venues host events within the same class, both must be taxed the same way.

Q: What's the cap on the admissions tax rate?
A: The opinion does not address rate caps. Check § 58.1-3818 and your county ordinance for current rates and limits.

Q: How does the admissions tax treat college and school-sponsored games?
A: Section 58.1-3817(2) places "public and private elementary, secondary, and college school-sponsored events, including events sponsored by school-recognized student organizations" in their own class. The opinion addresses only a county's authority to define classes within subsection (6); it does not analyze the rate or exemption treatment of any of the enumerated classes.

Citations and references

Statutes:

• Va. Code § 58.1-3817 (Classification of taxable admissions)
• Va. Code § 58.1-3818 (County admissions tax)

Constitutional provision:

• Va. Const. art. X, § 1 (Uniformity clause)

Cases:

• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (2012) (Virginia Supreme Court; statutory interpretation)
• Commonwealth v. Amerson, 281 Va. 414 (2011) (Virginia Supreme Court)
• Davenport v. Little-Bowser, 269 Va. 546 (2005) (Virginia Supreme Court; plain meaning)
• Jackson v. Fidelity & Deposit Co., 269 Va. 303 (2005) (Virginia Supreme Court)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-012-Rogers-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

October 1, 2021

Leo P. Rogers, Esquire
Loudoun County Attorney
1 Harrison Street, S.E.
Post Office Box 7000
Leesburg, Virginia 20177-7000

Dear Mr. Rogers:

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 if a county elects to levy an admissions tax under Virginia Code § 58.1-3818, may that county define the class of events to which an admissions tax will be imposed pursuant to § 58.1-3817(6).

Applicable Law and Discussion

Section 58.1-3818 authorizes counties generally to "levy a tax on admissions charged for attendance at any event." Section 58.1-3817 provides:

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.

Your question is whether §§ 58.1-3817 and -3818, when read together, allow a county to impose an admissions tax on certain events of their own choosing. Specifically, you ask to what extent a county can define the class of events to impose the admissions tax under § 58.1-3817(6).

"When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Further, "[a] principal rule of statutory interpretation is that courts will give statutory language its plain meaning." The language of § 58.1-3818, authorizing counties to "levy a tax on admissions charged for attendance at any event," is a broad and general grant of authority. Applying the plain meaning of the phrase "at any event," a county may levy an admissions tax for "any event."

Section 58.1-3817 enumerates six classes of events and only limits the authority of a county to levy an admissions tax by requiring that the tax apply uniformly across all events of the same class. This includes the class designated by § 58.1-3817(6) as "[a]ll other admissions." A county is not required to tax all types of events which fall under § 58.1-3817(6), however a county must uniformly tax those events on which it elects to impose an admissions tax. That is, if a county elects to impose an admissions tax on a defined class of events which would not otherwise be included in subsections 1-5, then any events within that defined class must be taxed uniformly. Subsection 6 does not, however, require a county to impose an admissions tax on all types of admissions which could possibly fall under that subsection.

Conclusion

Accordingly, it is my opinion that a county may define the class of events to which an admissions tax will be imposed pursuant to § 58.1-3817(6) of the Code of Virginia.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General