Are extra meals at a Virginia independent-living facility taxable under local meals tax when residents pay for them separately on top of a monthly fee?

Plain-English summary

Frederick County's Commissioner of the Revenue asked about local meals-tax treatment of extra meals at a continuing-care retirement facility. The facility operates at three levels: independent living (one meal per day included in the monthly fee, no state license required), assisted living (three meals per day included in the monthly fee, state-licensed), and skilled nursing health care (all meals included). The county was already treating meals covered by the monthly fee as exempt across all three levels. The narrow question was whether independent-living residents who chose to buy extra meals beyond the one-meal-per-day allowance, paying for them separately, owed local meals tax on those extras.

The Attorney General said no. Code § 58.1-3833 authorizes counties to impose a meals tax but requires exemptions for two categories that matter here: "age-restricted apartment complexes or residences with restaurants ... where meals are served and fees are charged for such food and beverages and are included in rental fees" and "nursing homes, or other extended care facilities." The independent-living facility falls into the first category because the monthly rental fee includes at least one meal per day. Once the facility qualifies for the category, the statute exempts all meals served there. The statute does not split the meals into included-in-rental and extra-purchase categories; it covers everything because the rental-fee criterion is satisfied. The AG noted that the General Assembly could have written narrower language ("only meals included in rental fees are exempt") but did not, so courts cannot read that limitation into the statute.

Currency note

This opinion was issued in 2017. 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

Virginia local meals taxes (sometimes called food and beverage taxes) are governed by Code § 58.1-3833 for counties. The statute authorizes counties to impose the tax but lists several mandatory exemptions, including:

• exemption (vii): nursing homes or other extended care facilities
• exemption (x): age-restricted apartment complexes or residences with restaurants on premises, where meals are served and fees are charged for the food and beverages and are included in rental fees

The exemptions exist because residents of senior-care facilities effectively eat their meals at home, even if "home" is structured as a residential complex with a central dining room. Taxing those meals would impose meals tax on what is functionally household food.

The Frederick County question turned on a textual ambiguity: did exemption (x) cover only the meals literally included in the rental fee, or all meals served at the facility once the facility qualified for the category? The AG read the text as setting a qualifying-criterion test. Once a facility meets the criterion (a restaurant, meals served, fees charged, fees included in rental), then "all meals" served by the facility are exempt. The statute does not contain limiting language like "the meals included in the rental fees" or "only such meals." The AG invoked the standard rule that courts assume the legislature chose its words with care (Alger v. Commonwealth) and that they cannot add language to a statute (Appalachian Power).

Common questions

What kinds of senior facilities does the exemption cover?
Exemption (x) covers age-restricted apartment complexes or residences with restaurants where meals are served and fees are charged for the meals and are included in rental fees. Exemption (vii) separately covers nursing homes and other extended care facilities. So an age-restricted independent-living complex with included meals qualifies under (x), and skilled-nursing or assisted-living facilities can qualify under (vii) regardless of how the meal-billing is structured.

Does the exemption depend on how many meals are included in the rental fee?
According to this opinion, no. The statute says "fees are charged for such food and beverages and are included in rental fees." It does not require a specific number or threshold. Once at least some meals are included in the rental fee, the facility qualifies, and the exemption applies to all meals served.

Does this apply to guest meals served to family members who visit a resident?
The opinion does not directly address guest meals. The statutory text exempts meals at the facility, which suggests the exemption might extend to guests dining with residents on the premises, but the question was not before the AG. Local administrators would need to apply the statute and the facility's billing practices.

Does the AG's opinion apply to any specific facility in Frederick County?
No. The AG explicitly noted that he was not opining on application of Frederick County's meals tax to any particular facility, because that would require interpretation of a local ordinance. The opinion construes the statutory exemption only.

What about the second level of care (assisted living)?
The Frederick County inquiry did not question assisted living. The county was already treating those meals as exempt, and they would qualify either under exemption (x) (rental fees that include meals) or under exemption (vii) (extended care facility).

Does the local ordinance matter?
Yes. The state statute authorizes counties to impose the tax with the listed mandatory exemptions, but the actual implementation depends on the local ordinance. Localities cannot make the tax broader than the statute permits.

Citations

• Va. Code § 58.1-3833 (county meals tax authority and exemptions)
• Alger v. Commonwealth, 267 Va. 255 (2004) (legislature's word choice)
• Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695 (2012) (no adding language to statute)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-034-Murphy-meals-tax-exemption-continuing-care-facility-issued.pdf

Original opinion text

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

December 7, 2017

The Honorable Ellen E. Murphy
Commissioner of the Revenue for Frederick County
107 North Kent Street
Winchester, Virginia 22601

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

Issue Presented
Whether meals sold in an independent living facility that are in excess of the monthly food
allowance and that are separately billed are exempt from local meals tax.

Background
You state that Frederick County has a food and beverage tax (a "meals tax"). You refer to a
continuing care retirement facility which provides residential living at three levels of care:

• Age-restricted active adult living, otherwise known as "independent living," for
  which no state license is required. At this level of care, each resident receives
  one meal per day, the cost of which is included in the fixed monthly fee. The
  cost of other meals consumed by a resident is charged in addition to the fixed
  monthly fee.

• Assisted living, licensed by the Virginia Department of Social Services, where
  three meals per day are provided to each resident for a fixed monthly fee.

• Health care, where the Virginia Department of Health has issued a license for
  skilled nursing care. At this level of care, all meals for a resident are included in
  a fixed monthly fee.

All meals covered by fixed monthly fees are treated as tax exempt, and you do not question that
practice. Your inquiry concerns only the tax status of those meals served at the independent living facility
which are not included in the monthly fee, and for which residents pay separately.

Applicable Law and Discussion
Pursuant to § 58.1-3833 of the Code of Virginia, counties are authorized to impose a meals tax,
subject to certain mandatory exemptions. The exemptions relevant to your inquiry are, first, for "age-restricted apartment complexes or residences with restaurants ... where meals are served and fees are
charged for such food and beverages and are included in rental fees"[1] and, second, for "nursing homes, or
other extended care facilities."[2]

Because the independent living facility has a restaurant that provides some meals included in the
monthly rental fee, it falls within the statutory tax-exempt category of an age-restricted apartment
complex or residence "where meals are served and fees [that] are charged ... are included in rental fees."
The statute does not provide that only meals included in rental fees are exempt from taxation, while other
meals are taxable. Instead, if the facility meets the requirement of having rental fees cover meals,
regardless of how many or few, then the exemption applies to all meals.

If the General Assembly had intended to limit the exemption only to those meals included in the
rental fee, with other meals being taxable, it could have done so by appropriate language of limitation. It
did not choose to do so. We must assume that the General Assembly "'chose, with care, the words it used
when it enacted the relevant statute.'"[3] "Rules of statutory construction prohibit adding language to ... a
statute."[4]

Conclusion
Accordingly, it is my opinion that § 58.1-3833 of the Code of Virginia exempts from local meals
tax all meals that are purchased at an age-restricted independent living facility which includes some or all
meals in a monthly rental fee.[5]
With kindest regards, I am
Sincerely yours,

Mark R. Herring
Attorney General

[1] VA. CODE ANN. § 58.1-3833(A) (2017) (exemption (x)).

[2] VA. CODE ANN. § 58.1-3833(A) (exemption (vii)).

[3] Alger v. Commonwealth, 267 Va. 255, 261 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295 (1990)).

[4] Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695, 706 (2012) (citing BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 331 (2007)).

[5] I express no opinion about application of Frederick County's meals tax to any particular facility. "When a request requires interpretation of a local ordinance, the Attorney General has declined to respond in order to avoid becoming involved in matters solely of local concern and over which the local governing body has control." 2006 Op. Va. Att'y Gen. 150, 152 n.5 (citing 2002 Op. Va. Att'y Gen. 85, 86, 96-97; 1976-1977 Op. Va. Att'y Gen. 17, 17); see also 2001 Op. Va. Att'y Gen. 73, 74.