-----Original Message-----

From:                     McCulla, Paul 

Sent:                      Tuesday, February 11, 2003 3:33 PM

To:                          Winkelmann, Joe; Wheeler, Randy

Cc:                           DL-BOS; Burke, Kevin; Ledgerton, Beth

Subject:                 PPTRA Issue

 

I have had an opportunity to review the PPTRA issue.  In addition I have contacted and discussed the issue with Deputy Attorney General Thomas Moncure, who is in the opinons section of the Attorney General's office.  Based upon the review and that discussion I am able to report the following:  

a. At issue is the interpretation of Section 58.1-3531 of the Code of Virginia which states in pertinent part:

1. If a taxpayer fails to make the payment described in subsection B of 58.1-3526 by the due date or fails to comply with the filing requirements for qualifying vehicles under 58.1-3518 and 58.1-3518.1, no interest may be imposed on any amount to be paid by the Commonwealth, as determined under subdivisions B 2 through B 5 of 58.1-3524.  In calculating penalties to be imposed on the taxpayer for failure to make the payment described in subsection B of 58.1-3526 by the due date or failure of the taxpayer to comply with the filing requirements for qualifying vehicles under 58.1-3518 and 58.1-35181, the treasurer may take into consideration the full amount of the tangible personal property tax levied including any amount to be paid by the Commonwealth as determined under subdivisions B2 through B 5 of 58.1-3524 and any other relevant information.  

No formal court case or attorney general opinion was found which directly opines on whether the Board of Supervisors may prohibit the taking of the penalty for failure to pay by the due date on any amount to be paid by the Commonwealth.   In conversations with Deputy Attorney General Moncure I was advised that it was his informal opinion that the Board of Supervisors did not have the power to enact such a prohibition because: (i) the under the Dillon rule the Board has only that authority expressly provided it by the General Assembly and no express authoritization exists; and (ii) to opine that the Board had such an authority would permit the Board to render superfluous the express grant of the General Assembly to the Treasurer to make the decision on whether to take into account the full amount of the tangible personal property tax levied and any other relevant information.  The Deputy Attorney General likened this grant to the similar grant of authority by the General Assembly giving the treasurer the right to waive penalty and interest if she determines the failure to pay was not the fault of the taxpayer.  Mr. Moncure noted that his opinion was an informal opinion and was not binding on the Attorney General if we should make a formal opinion request.  Do you wish to make a formal request?