Can a Virginia county tax boats by charging a license fee instead of personal property tax?

Plain-English summary

Middlesex County considered replacing personal property taxes on boats with a flat local license fee, following another locality's earlier example. The Commissioner of the Revenue asked whether Virginia law allowed it. The AG said no.

Three Virginia rules combined to produce that answer. First, tangible personal property is segregated for and made subject only to local taxation under Article X, § 4 of the Virginia Constitution. Boats are tangible personal property under § 58.1-3500 and are slotted into specific personal-property classifications in § 58.1-3503 and § 58.1-3506. Second, under the Dillon Rule, counties have only those powers expressly granted or necessarily implied by statute (County Bd. of Arlington Cty. v. Brown, 229 Va. 341, 344 (1985)). The General Assembly has expressly authorized local license fees on motor vehicles, trailers, and semitrailers (§ 46.2-752(A)) and on bicycles, electric power-assisted bicycles, electric personal assistance mobility devices, and mopeds (§ 15.2-1720), but has not authorized one on boats. Third, the canon expressio unius est exclusio alterius (GEICO v. Hall, 260 Va. 349, 355 (2000)) carries the implication that the General Assembly's listing of specific vehicles for which a fee may be charged excludes boats from that authority.

The AG also noted that § 15.2-1125 gives municipal corporations a general licensing power, but that power must be exercised consistently with general law. Because the General Assembly has placed boat license fees under the Department (and Board) of Game and Inland Fisheries under §§ 29.1-701.1 and 29.1-702, a locally imposed boat license fee would conflict with general law.

Currency note

This opinion was issued in 2016. 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.

The Department of Game and Inland Fisheries has been renamed the Department of Wildlife Resources, and the boat-licensing statutes have been amended over the years. Anyone evaluating local boat-tax options today should pull the current text of § 58.1-3500, § 58.1-3506, the personal-property classifications, and the current state-level boat-titling statutes, and confirm that no new General Assembly authorization for local boat fees has been enacted.

Background and statutory framework

Article X, § 4 of the Virginia Constitution segregates tangible personal property for local taxation. Section 58.1-3500 defines "tangible personal property" to include all personal property not otherwise classified as intangible (§ 58.1-1100), merchants' capital (§ 58.1-3510), or short-term rental property (§ 58.1-3510.4). Boats are included and are placed in specific valuation and taxation classifications: § 58.1-3503(A)(11) and (12), and several subdivisions of § 58.1-3506(A), including (1)(a), (1)(b), (12), (28), (29), (35), and (36).

The Dillon Rule confines a county to powers granted expressly or by necessary implication (County Bd. of Arlington Cty. v. Brown, 229 Va. 341 (1985)). Unlike a state legislature, a locality "must . . . [act] with an express grant of authority" (Nat'l Realty Corp. v. City of Va. Beach, 209 Va. 172, 175 (1968)).

The General Assembly has expressly authorized local license fees on motor vehicles, trailers, and semitrailers (§ 46.2-752(A) and Title 46, Chapter 6, Article 11) and on bicycles, electric power-assisted bicycles, electric personal assistance mobility devices, and mopeds (§ 15.2-1720). It has not done so for boats. Sole authority for administering and assessing boat license fees rests with the Department (and Board) of Game and Inland Fisheries under §§ 29.1-701.1 and 29.1-702.

Section 15.2-1125 gives municipal corporations a broad licensing authority, but the AG noted that this must be read in conjunction with the principle that localities may not exercise their powers (including police powers) in a manner inconsistent with the general laws of the Commonwealth (§§ 1-248, 15.2-1200). By providing the specific instances in which a locality may assess vehicle license fees, the General Assembly signaled an intent that other vehicle categories not be included (expressio unius est exclusio alterius; GEICO v. Hall, 260 Va. 349, 355 (2000)).

Common questions

Q: Why couldn't a county just substitute a license fee for the personal property tax on boats?
A: Under the Dillon Rule, a Virginia county has no power to impose a tax or fee unless the General Assembly has granted that authority. The General Assembly authorized local license fees on motor vehicles, trailers, semitrailers, and certain pedal- and motor-assisted devices, but did not include boats.

Q: What was the AG's reaction to the fact that another locality had already done this?
A: The AG did not address the other locality's situation directly. The legal conclusion would apply to any county imposing such a fee; the existence of a non-conforming local practice did not validate it.

Q: Could a county still tax boats at all?
A: Yes, through the ordinary personal property tax framework. Boats are tangible personal property under § 58.1-3500 and are subject to local personal property taxation under the classification scheme of §§ 58.1-3503 and 58.1-3506.

Q: What governs state-level boat licensing?
A: At the time, the Department (and Board) of Game and Inland Fisheries had sole authority to administer and assess boat license fees under § 29.1-701.1 and § 29.1-702.

Citations and references

Statutes and constitutional provisions:
- Va. Const. art. X, § 4 (segregation of tangible personal property for local taxation)
- Va. Code Ann. § 58.1-3500 (definition of tangible personal property)
- Va. Code Ann. § 58.1-3503(A)(11), (12) (personal property classifications)
- Va. Code Ann. § 58.1-3506(A) (personal property classifications for boats)
- Va. Code Ann. § 46.2-752(A) (local vehicle license fees)
- Va. Code Ann. § 15.2-1720 (local fees on bicycles and similar devices)
- Va. Code Ann. § 15.2-1125 (general municipal licensing authority)
- Va. Code Ann. § 15.2-1200; § 1-248 (limits on local power inconsistent with general law)
- Va. Code Ann. § 29.1-701.1; § 29.1-702 (Department of Game and Inland Fisheries boat licensing)
- Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:
- County Bd. of Arlington Cty. v. Brown, 229 Va. 341 (1985)
- Nat'l Realty Corp. v. City of Va. Beach, 209 Va. 172 (1968)
- GEICO v. Hall, 260 Va. 349 (2000)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-085-Davenport-issued.pdf

Original opinion text

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

September 1, 2016

The Honorable Priscilla J. Davenport
Commissioner of the Revenue, Middlesex County
Post Office Box 148
Saluda, Virginia 23149

Dear Ms. Davenport:

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 counties in Virginia have the authority to impose a license fee on boats in lieu of a personal property tax.

Background

You state that the County of Middlesex is considering imposing a license fee in lieu of personal property taxes on boats. You relate that another locality already has eliminated personal property taxes on boats and has replaced such taxes with a license fee.

Applicable Law and Discussion

The Constitution of Virginia provides that tangible personal property is segregated for, and made subject to, local taxation only. [1] Section 58.1-3500 of the Code defines "tangible personal property" to include "all personal property not otherwise classified by (i) § 58.1-1100 as intangible personal property, (ii) § 58.1-3510 as merchants' capital, or (iii) § 58.1-3510.4 as short-term rental property." [2] Boats are included in the definition of "tangible personal property" and are divided by statute into various classifications for purposes of valuation and taxation. [3]

With respect to the power of localities to assess license fees on boats, I note that Virginia adheres to the Dillon Rule, which provides that "[t]he powers of county boards of supervisors are fixed by statute and are limited to those powers conferred expressly or by necessary implication." [4] Unlike the power of the State legislature, the power of a locality "must be exercised [in accordance] with an express grant of authority." [5] The General Assembly has expressly conferred upon localities the authority to levy a local license fee on motor vehicles, trailers, and semitrailers as part of the local vehicle registration process. [6] It has also specifically authorized localities to license bicycles, electric power-assisted bicycles, electric personal assistance mobility devices, and mopeds and impose a license fee on such vehicles. [7] The General Assembly has not, however, authorized localities to impose a license fee upon boats. [8] Rather, the sole authority for administering and assessing boat license fees lies with the Department (and Board) of Game and Inland Fisheries. [9]

Conclusion

Accordingly, it is my opinion that counties in Virginia do not have the authority to impose a license fee on boats in lieu of personal property taxes.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] VA. CONST. art. X, § 4.

[2] VA. CODE ANN. § 58.1-3500 (2013).

[3] See VA. CODE ANN. § 58.1-3503(A)(11), (12) (Supp. 2016); 58.1-3506(A)(1)(a), (1)(b), (12), (28), (29), (35), (36) (Supp. 2016).

[4] County Bd. of Arlington Cty. v. Brown, 229 Va. 341, 344 (1985).

[5] Nat'l Realty Corp. v. City of Va. Beach, 209 Va. 172, 175 (1968).

[6] See VA. CODE ANN. § 46.2-752(A) (Supp. 2016); see generally VA. CODE ANN. Title 46, Chapter 6, Article 11 (prescribing the procedures and limitations that apply to local license fees on motor vehicles, trailers, and semitrailers).

[7] VA. CODE ANN. § 15.2-1720 (Supp. 2016).

[8] I note that § 15.2-1125 provides that "[w]henever in the judgment of the municipal corporation it is advisable in the exercise of any of its powers or in the enforcement of any ordinance or regulation, it may provide for the issuance of licenses of permits in connection therewith . . . [and] fix a fee to be charged the licensee or permittee ...." This provision, however, must be read in conjunction with the general principle that localities may not exercise their powers—including police powers—in a manner that is inconsistent with the general laws of the Commonwealth. See, e.g., VA. CODE ANN. §§ 1-248 (2014); 15.2-1200 (2012). By establishing specific instances in which a locality may assess license fees on vehicles, the General Assembly has indicated an intent that it not be done otherwise. See GEICO v. Hall, 260 Va. 349, 355 (2000) (citing the maxim of statutory construction known as expressio unius est exclusio alterius, which "provides that mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute"). Therefore, under current law—and regardless of the provisions of § 15.2-1125—a locality may not assess a license fee on boats because so doing would be inconsistent with separate law.

[9] See VA. CODE ANN. §§ 29.1-701.1 (2015); 29.1-702 (2015).