LITIGATION BACKGROUNDER

Charlottesville Writer Tax

Charlottesville Treats Members of Its Creative Community Like ATMs

Charlottesville, Virginia, prides itself on welcoming its large community of writers, artists and other freelance creatives with open arms. But recently, for the first time, some members of this community have been told that they’ve been criminals for years. The city of Charlottesville and Albemarle County have decided to require a business license to write novels, and they have assessed thousands of dollars in back taxes against some of their hardworking freelance writers. Now, two of those writers are fighting back.

Corban Addison and John Hart are bestselling novelists who live and work in Charlottesville and Albemarle County, respectively. Both love being a part of Charlottesville’s creative community and can’t imagine working anywhere else. That’s why they were shocked when they received bills for unpaid “business license taxes.” Both are former lawyers, yet neither imagined that they would need a license when they switched careers to become writers. But Corban and John soon discovered that not everybody has to pay this tax; the Commonwealth exempts many businesses that produce speech: newspapers, magazines, radio and television. Like these businesses, Corban and John also speak for a living, but the city and county have targeted them to the tune of thousands of dollars.

Making matters worse, the law is so vague that tax collectors can go after anyone they want. The result is money-hungry municipalities inventing increasingly creative ways to squeeze revenue out of their citizens. Municipalities across the country have similar requirements, and if Charlottesville succeeds at its latest gambit, many others might follow suit.

Charlottesville’s money-grab isn’t just wrong, it’s unconstitutional. That’s why Corban and John have teamed up with the Institute for Justice (IJ) to file lawsuits against the city and county asking for refunds of their business license taxes and challenging their constitutionality under the First and Fourteenth Amendments to the U.S. Constitution. Their cutting-edge lawsuits will vindicate Americans’ right to speak for a living without being burdened by discriminatory taxes.

Charlottesville's Business License Tax

Business license taxes are supposed to defray the cost of infrastructure that businesses and their customers use; they shouldn’t be levied against people who are sitting alone, in a room, writing books.

Corban and John have no storefront and no customers, and are not a burden on city or county infrastructure. They aren’t running a business; they’re writing books.

But with cash-strapped municipalities looking for more sources of revenue, Charlottesville’s creative community represented an untapped well. Albemarle County recently hired two auditors to identify potential targets for taxation. Musicians and writers—among them, bestselling author John Hart—received tax bills as a result.

In addition to requiring a license, Charlottesville and Albemarle County also impose a tax or fee on the basis of a business’s “gross receipts.” Gross receipts are the business’s revenue, without deducting expenses. No tax is imposed on any business with gross receipts less than $100,000 per year.Those smaller businesses pay a $35-50 per year license fee. Not obtaining a business license is a misdemeanor punishable by fines or jail time.

There’s one group of businesses in Charlottesville, however, that doesn’t face these taxes: the traditional media. Although Virginia allows municipalities to license businesses, the Commonwealth requires them to exempt much of the print and visual media, including newspapers, magazines, other periodicals, radio and television. Other businesses aren’t so lucky. In all, Charlottesville’s ordinance subjects over 130 businesses to licensure, and the county ordinance is similarly comprehensive.

Remarkably, though, nowhere in either ordinance is there any reference to “authors” or “writers.” Instead, both ordinances contain “catch-all” provisions that sweep in other, unlisted occupations. Charlottesville’s business license tax, for example, taxes “[a]ny other repair, personal or business service not specifically included in [the ordinance].” The county ordinance taxes “repair, personal, business, [or] other service[s].”

But writers are not “repair” businesses or “personal” or “business” services. The fact that the city and county tax them anyway shows that these catch-all provisions are so vague they let city and county taxing officials tax—or not tax—whomever they wish.

The Plaintiffs

Corban Addison Klug (writing under the pen name “Corban Addison”) has published four novels. He lives in Charlottesville and works out of his home and a small office downtown. Corban travels the world to write and seek inspiration for his books, which are about issues of global human rights. He has written about everything from human trafficking, to piracy in Somalia, to the underside of the consumer economy.

In October 2018, Charlottesville assessed Corban thousands of dollars in business license taxes dating back to 2015. The assessment came as a complete surprise to Corban. A former lawyer, Corban prides himself on going by the book and following the rules, but he never imagined he had to get a license to write novels.

John Hart has written five New York Times bestsellers and has won several awards for his character-driven, literary thrillers. He lives and works from his home in Albemarle County. In January 2019, the county assessed him thousands of dollars in business license taxes dating back to 2013. John, who has been a full-time writer in Albemarle County since 2006, was also stunned that the county was taxing him for sitting at his kitchen table writing books on an old laptop.

Corban and John moved to the Charlottesville area because they love the beauty, history, peace and quiet. They also appreciate and depend on the support and fellowship of Charlottesville’s large community of artists, writers and other creative individuals. Corban and John can’t picture living or working anywhere else, but as a result of the business license tax, they feel much less welcome in Charlottesville.

The Legal Claims

Charlottesville taxes freelance writers while exempting the traditional press. That’s unfair and unconstitutional. Corban and John have two legal claims. First, Charlottesville and Albemarle County’s business license taxes exempt certain speakers who are a part of the traditional media—newspapers, magazines, other periodicals, radio and TV—while placing a burden on freelance writers like themselves. This violates the First Amendment to the U.S. Constitution. The U.S. Supreme Court has been clear that the government isn’t allowed to discriminate based on who is speaking. The Court has also cautioned against laws that favor the traditional press over other speakers. The traditional press, while important, is not entitled to special government favors that are denied to freelance, creative entrepreneurs.

Corban and John’s second claim is that the Charlottesville and Albemarle County ordinance’s “catch-all” provisions are unconstitutionally vague under the Fourteenth Amendment to the U.S. Constitution. An ordinary freelance writer, like Corban or John, can’t look at the ordinances and figure out that they are subject to the tax. As a result, the ordinances give too much power and discretion to tax officials seeking new sources of revenue.

The Litigation Team

IJ Attorney Renée Flaherty and Senior Attorney Paul Sherman represent Corban Addison Klug and John Hart. Neal L. Walters of Scott Kroner, PLC, serves as local counsel.

About The Institute for Justice

Founded in 1991, the Institute for Justice is the national law firm for liberty. IJ litigates cutting-edge First Amendment cases across the county. This case builds on IJ’s work protecting those who speak for a living.

For more information, contact:
Conor Beck
(703) 682-9320, ext. 284