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2005 SESSION


CHAPTER 864
An Act to amend and reenact §§ 3.1-618 and 3.1-626 of the Code of Virginia and to amend the Code of Virginia by adding sections numbered 3.1-636.1 through 3.1-636.12, relating to establishing an excise tax on apples; penalty.
[S 1008]
Approved March 28, 2005
 

Be it enacted by the General Assembly of Virginia:

1.  That §§ 3.1-618 and 3.1-626 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 3.1-636.1 through 3.1-636.12 as follows:

§ 3.1-618. Definitions.

As used in this article, unless the context requires a different meaning:

"Board" means the Virginia State Apple Board.

"Bushel" means a container with a content of not less than 2,140 cubic inches nor more than 2,500 cubic inches.

"District" means one of the districts set forth in § 3.1-632.

"Member" means a member of the Board.

"Producer" means any person who, in a calendar year, grows or causes to be grown within the Commonwealth, for sale, a minimum of 5,000 tree run bushels of apples.

"Tree run bushel" means a container, with a content of not less than 2,140 cubic inches or more than 2,500 cubic inches, of apples that have not yet been graded or sized.

§ 3.1-626. Apple Fund; audit.

All moneys levied and collected under the provisions of this article shall be credited on the Comptroller's books to a fund to be known as the "Apple Fund." All moneys credited to the Apple Fund shall be used exclusively for the administration and enforcement of this article, including the payment for personal services and expenses of agents of the Board and the payment of rent, services, materials, and supplies necessary to effectuate the purposes and objects of this article, or as specifically provided in any referendum ratified pursuant to this article. The Auditor of Public Accounts shall audit all the accounts of the Board as provided for in § 30-133. The unexpended balance of the Apple Fund at the end of each year shall not be transferred to the general fund of the state treasury, but shall remain in the Apple Fund.

§ 3.1-636.1. Referendum on question of levying apple excise tax.

The Board of Agriculture and Consumer Services shall authorize the holding of a referendum as set forth in this article. The Commissioner of Agriculture and Consumer Services, hereinafter referred to as the Commissioner, or his designated agents, shall be fully empowered and directed to hold and conduct a referendum on the question of whether or not the producers of apples in the Commonwealth are willing to pay an excise tax on apples to support additional research, education, publicity, and industry development of the Virginia apple industry. The amount of tax to be voted upon in the referendum shall be 2.5 cents per tree run bushel of apples grown by producers in the Commonwealth. The cost of conducting a referendum under this section shall be paid by the Virginia State Horticultural Society.

§ 3.1-636.2. Rules governing ballots and conduct of referendum.

The Board of Agriculture and Consumer Services shall adopt rules governing the ballots to be used, the conduct of a referendum, the method for canvassing the results thereof, and the method for declaring the results of any referendum provided for in this article. The Board of Agriculture and Consumer Services shall fix the date, hours, and voting places with respect to the holding of the referendum and may provide for voting by mail. No requirement of this section shall be governed by Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.

§ 3.1-636.3. Management of referendum; Commissioner's duties; notice.

A. The Commissioner shall, under the rules adopted by the Board of Agriculture and Consumer Services pursuant to § 3.1-636.2, arrange for the use of any polling places if necessary.

B. The Commissioner shall, at least 60 days before the date on which a referendum is to be held, mail notice to the clerk of the circuit court in each locality where apples are produced. The clerk of the court shall post the notice on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Commissioner shall, at least 60 days prior to the holding of any referendum under this article, publish notice of the referendum in a newspaper of daily general circulation in Richmond, Virginia, and send a notice of the referendum to a newspaper of general circulation in each locality where apples are produced.

The notice shall contain the date, hours, voting places, and method of voting in the referendum; the amount of assessment to be collected, the means by which the assessment will be collected, and the general purposes for how the assessment will be used; and the rules adopted by the Board of Agriculture and Consumer Services pursuant to § 3.1-636.2.

C. The Commissioner shall prepare and distribute in advance of the referendum all necessary ballots, certificates, and supplies required for the referendum.

D. The Commissioner shall, within 10 days after the referendum, canvass and publicly declare the results thereof and certify the same to the Governor and shall notify, by mail, each member of the Board of Agriculture and Consumer Services of the results.

§ 3.1-636.4. Questions to be printed on ballots.

The question to be printed on the ballots used in the referendum held under § 3.1-636.1, shall be:

Do you favor the levy of an excise tax of 2.5 cents per tree run bushel of ungraded apples grown in the Commonwealth for sale by producers of at least 5,000 tree run bushels per calendar year, to be paid into the Apple Fund and distributed as follows: up to 40 percent paid to the U.S. Apple Association for publicity and industry development; up to 20 percent paid to the Virginia State Horticultural Society for education and industry development; up to 20 percent paid to the Virginia Apple Research Program for research; up to 10 percent to be used for administration of this article; and up to 10 percent to be held in the Apple Fund as a reserve with (i) a maximum amount of $125,000 and (ii) a requirement that any appropriation from the reserve receive at least 2/3 of the votes of the members of the Apple Board? If the maximum amount of the reserve fund is met, then the amount of that 10 percent distribution that exceeds the reserve fund shall be divided equally among the U.S. Apple Association, the Virginia State Horticultural Society, and the Virginia Apple Research Program.

__ Yes

__ No

§ 3.1-636.5. Persons eligible to vote.

Any producer, as defined in § 3.1-618, in the year preceding the date of the referendum held pursuant to this article shall be eligible to vote in such referendum if he so certifies on forms approved by the Commissioner. Any person, as defined in § 1-13.19, who meets these requirements shall be eligible to vote in the referendum, but no person shall be required to be a qualified voter in any other respect. Such person may vote provided that he is a resident of the Commonwealth or qualified to do business in the Commonwealth. Any person who is not an individual shall vote by its authorized representative.

§ 3.1-636.6. Referendum results; action of Governor.

If the Governor finds the referendum in order and that more than one-half of those voting are in favor of the excise tax on apples pursuant to § 3.1-636.4, then the Governor shall so proclaim. Upon such proclamation by the Governor, the excise tax on apples shall be established. If the Governor finds that more than one-half of those voting are in opposition to the excise tax on apples pursuant to § 3.1-636.4, then the Governor shall not so proclaim and the excise tax on apples shall not be established.

§ 3.1-636.7. Subsequent referenda.

The Board of Agriculture and Consumer Services, upon petition by at least 10 percent of the producers in the Commonwealth as determined by the Commissioner, shall provide for a referendum on the continuation of the Apple Board or amending the excise tax on apples if established pursuant to § 3.1-636.1. The Board of Agriculture and Consumer Services shall not act on such a petition for conducting a subsequent referendum until at least five years have passed since the last referendum.  Any referendum held under this section shall be conducted in accordance with this article. 

§ 3.1-636.8. Subsequent referendum results; action of Governor.

If the Governor finds a subsequent referendum held pursuant to this article in order and that more than one-half of those voting are in opposition to the continuation of the Apple Board, then the Governor shall so proclaim and upon such proclamation the Apple Board shall be discontinued. If the Governor finds that more than one-half of those voting are in favor of the continuation of the Apple Board, then the Governor shall not so proclaim and the Apple Board shall continue.

If the Governor finds that more than one-half of those voting are in favor of amending the excise tax on apples, then he shall so proclaim and upon such proclamation the excise tax shall be amended as stated in the referendum.  If the Governor finds that more than one-half of those voting are in opposition of amending the excise tax on apples, then he shall not so proclaim and the excise tax on apples shall not be amended.

§ 3.1-636.9. Disposition of excise tax by producer; reports.

A. Every producer shall submit to the Tax Commissioner the excise tax levied on apples grown in the Commonwealth in a calendar year, by January 31 of the following year. The Tax Commissioner shall promptly pay the assessments into the Virginia state treasury to the credit of the Virginia Apple Fund.

B. Every producer shall complete reports on forms furnished by the Tax Commissioner, submit such reports to the Tax Commissioner along with the excise tax submitted pursuant to subsection A, and keep copies of the reports for a period of not less than three years from the time the report was produced. Notwithstanding the provisions of § 58.1-3, upon request, the Tax Commissioner shall provide to the Apple Board or the Commissioner copies of reports submitted pursuant to this section.

§ 3.1-636.10. Collection of delinquent excise tax; civil action.

The Tax Commissioner shall immediately notify any producer who fails to pay the excise tax pursuant to § 3.1-636.9 when due and shall add a five percent penalty to the amount due. If such deficiency is not paid within 30 days after the date of such notice, then the amount of the deficiency shall bear interest, in accordance with § 58.1-15, from the date the amount was due, and the Tax Commissioner shall collect any interest as part of the delinquent amount. If any person is delinquent in any payment of the money due or interest thereon, then the amount shall be collected by civil action in the name of the Commonwealth at the direction of the Tax Commissioner, and any person adjudged to be in default shall pay the cost of such action. The Attorney General, at the request of the Tax Commissioner, shall institute action in a court of competent jurisdiction for the collection of any money due under this chapter, including interest thereon. The Tax Commissioner may waive or remit such penalty, or portion thereof, in his discretion for good cause shown.

§ 3.1-636.11. Records to be kept by producer.

Every producer shall maintain a complete record of the apples grown by him and shall preserve the records for at least three years from the time such apples are grown. The records shall be established and maintained as required by the Tax Commissioner and shall be open to the inspection of the Tax Commissioner or his duly authorized agents.

§ 3.1-636.12. Falsification of records; misdemeanor.

It shall be a Class 1 misdemeanor:

1. For any producer to fail to submit to the Tax Commissioner any report required under this article within 60 days after the time such report is required to be submitted.

2. For any producer knowingly to report falsely to the Tax Commissioner any information required under this article.

3. For any producer to fail to keep a complete record of the apples grown by him or to not preserve such records for a period of at least three years from the time such apples are grown.