Present: All the Justices
WISE COUNTY BOARD OF
SUPERVISORS
v. Record No. 950223 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 3, 1995
DELMER WILSON, AS
COMMISSIONER OF REVENUE
FROM THE CIRCUIT COURT OF WISE COUNTY
William C. Fugate, Judge
In this appeal, we consider whether the assessment ratio for
computing merchants' capital tax under Code § 58.1-3509 * is fixed
by the local governing body or by the commissioner of the
revenue. The specific question before us is whether the trial
court erred in dismissing a motion for declaratory judgment filed
by the Wise County Board of Supervisors (the Board), which asked
the court to declare that the Board, as the local governing body,
has the sole authority to set the assessment ratio.
In its motion for declaratory judgment, the Board alleged
that Delmer Wilson, Jr., Commissioner of the Revenue for Wise
County (the Commissioner), is required to apply the tax rate and
the assessment ratio set by the Board to the fair market value of
the inventory he assesses. In fiscal years 1993 and 1994, Wilson
refused to implement the assessment ratio established by the
*
Code § 58.1-3509 provides that "[t]he capital of merchants
is segregated for local taxation only. However, no rate or
assessment ratio in any county, city or town for merchants'
capital shall be greater than such rate and ratio as was in
effect in such county, city or town on January 1, 1978."
Board, asserting that he, not the Board, had the statutory
authority to fix the ratio. This impasse formed the basis for
the Board's request for declaratory judgment relief.
The trial court did not hear evidence in the case and
entered its ruling, as a matter of law, based on the parties'
pleadings. This appeal followed.
The Board argues that, since the power to tax is given only
to legislative bodies, it, rather than the Commissioner, has
authority under the Virginia Constitution to establish the
assessment ratio for merchants' capital tax. The Board contends
that fixing the assessment ratio is an essential component of its
authority to tax merchants' capital, because it enables the Board
to adjust revenue while operating within the limits of Code
§ 58.1-3509.
In response, the Commissioner contends that the assessment
ratio is not part of the levy of taxes. He contends that he is
required to fix the assessment ratio in order to fulfill his
statutory duty to establish the value of merchants' capital. We
disagree with the Commissioner.
The assessment ratio for merchants' capital taxation is the
ratio of assessed value to fair market value of the property.
See BLACK'S LAW DICTIONARY 117 (6th ed. 1990). In determining whether
the Board or the Commissioner has the authority to fix this
ratio, we first review the duties of each office with respect to
the imposition of taxes.
- 2 -
The levying of taxes is a legislative function. Article
VII, § 7 of the Virginia Constitution provides that "[n]o
ordinance or resolution . . . imposing taxes . . . shall be
passed except by a recorded affirmative vote of a majority of all
members elected to the governing body." Article VII, § 2 and
Article X of the Virginia Constitution authorize the General
Assembly to empower local governing bodies to levy local taxes.
The General Assembly exercised this authority in Code
§ 58.1-3001, which provides that "[t]he governing body of each
county shall . . . fix the amount of the county and district
taxes for the current year."
As the local governing body, the elected Board is the
constitutionally authorized taxing body of Wise County. See Va.
Const. art. VII, § 7; County of Sussex v. Jarratt, 129 Va. 672,
684, 106 S.E. 384, 387 (1921). Moreover, no entity other than an
elected governing body may levy taxes. Va. Const. art. VII, § 7;
see Wright v. Norfolk Electoral Bd., 223 Va. 149, 152-53, 286
S.E.2d 227, 228 (1982).
The authority of commissioners of the revenue to assess the
value of merchants' capital is inherently different from the
taxing authority of local governing bodies. The assessment
process that the commissioners conduct is a quasi-judicial
function, which consists of making a list of the taxpayers'
property, fixing its valuation, and applying the tax levy set by
the local governing body. See Jarratt, 129 Va. at 684-85, 106
- 3 -
S.E. at 387-88. The assessment itself is simply a valuation
placed on a particular item for tax purposes. Cross v. City of
Newport News, 217 Va. 202, 203 n.1, 228 S.E.2d 113, 114 n.1
(1976).
Commissioners of the revenue may assess personal property
only in response to a properly ordered levy by the elected body
and are prohibited from making any levy of their own. See
Jarratt, 129 Va. at 690, 106 S.E. at 672. Subject to this
limitation, commissioners may choose their procedures for
determining values, provided that they meet the requirement of
equality and uniformity. See Cross, 217 Va. at 206-07, 228
S.E.2d at 116-17.
Code § 58.1-3109 enumerates the specific responsibilities of
commissioners of the revenue with respect to personal property,
but does not specify a duty to establish assessment ratios.
Thus, the maxim expressio unius est exclusio alterius is
applicable here. This maxim provides that, when a statute
mentions specific items, an implication arises that items not
present were not intended to be included within the scope of the
statute. Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887
(1992). Here, therefore, the omission of an enumerated duty to
fix the assessment ratio raises an implication that the General
Assembly did not intend that commissioners of the revenue have
this authority.
Merchants' capital is subject to local taxation only. Code
- 4 -
§ 58.1-3509. The assessment ratio is an integral part of the tax
levy because, together with the tax rate, it is applied to the
assessment to establish the taxpayers' total liability. See
generally Fray v. County of Culpeper, 212 Va. 148, 150-51, 183
S.E.2d 175, 177-78 (1971). Thus, as part of the levy, the
setting of the assessment ratio is a legislative function.
Finally, we note that, if the Commissioner had the authority
to fix the assessment ratio, the Board would not be able to
exercise fully its implicit authority under Code § 58.1-3509, as
the local governing body, to adjust the level of taxation on
merchants' capital. Such a result would violate Article VII,
§ 7, because it effectively would impair the Board's authority to
levy local taxes. See Jarratt, 129 Va. at 685, 106 S.E. at 388.
Thus, we conclude that the Board, rather than the Commissioner,
has the authority to determine the assessment ratio for
merchants' capital tax. See Va. Const. art. VII, §§ 2 and 7; Va.
Const. art. X; Code §§ 58.1-3001 and -3509.
For these reasons, we will reverse the trial court's
judgment and enter final judgment in favor of the Board declaring
that the Board has the sole authority to fix the assessment ratio
for merchants' capital taxation.
Reversed and final judgment.
- 5 -